AURORA | The ACLU of Colorado filed a lawsuit against an Aurora metropolitan district this week for rules that have barred a homeowner from displaying a LGBTQ+ Pride flag and yard sign encouraging kindness and inclusivity.
David Pendery said he received a violation letter from the Whispering Pines Metropolitan District for displaying the LGBTQ+ flag last summer. While the metro district gave initial approval of the flag, Pendery was told that approval would expire on Dec. 31, 2020 and he would have to apply again to fly it in 2021.
He took the flag down, which he says conveys solidarity for families like his, and hasn’t put it back up or displayed the yard sign since.
“We immediately felt at home when we moved to the neighborhood last year and formed strong relationships with our neighbors,” Pendery said in a statement. “But it’s incredibly disheartening that the governing body whose primary responsibility is to protect residents’ investments instead chooses to focus its limited resources on violating our right to free speech.”
Pendery first learned that the metro district was sending out violation letters for Pride flags when another family posted in a neighborhood Facebook group that they had received one. Pendery told the Sentinel he then put out his flag and received a violation notice the next day.
ACLU lawyers are asking a federal district court for an immediate injunction to stop the metro district from enforcing its flag and sign rules, which the ACLU says “discriminate on the basis of the message that the sign or flag communicates.”
The metro district’s design guidelines for flags and flagpoles allow a U.S. flag, Colorado flag, armed forces flags, relevant holiday flags and sports team flags during a sporting event. Rules also state that flags should be no larger than 5 square feet.
Most standard flags are 5 feet by 3 feet, but Pendery said he’s never received a notice for displaying an American flag larger than the rules dictate.
Other district rules say the only yard signs that are permitted without district approval are “for sale” signs. Political signs are approved only if the message relates to a candidate or ballot issue of a pending election and meets certain timeframe requirements.
Pendery’s sign — which reads “In this house, we believe Black lives matter, women’s rights are human rights, no human is illegal, science is real, love is love, kindness is everything” — would need to get the greenlight from the metro district, but it’s unclear from district rules what requirements it should meet.
The ACLU also says in its suit that because the metro district has no specific requirements for flags and signs when residents seek approval, decisions are “based inappropriately on the message or the viewpoint expressed.”
“I don’t think I should have to get my free speech approved by the metro district,” Pendery said.
The metro district, being a political subdivision of the state, can levy fines if guidelines such as those for signs and flags are violated. Not paying a fine can result in late fees, legal action and even the metro district putting a lien on a home.
“Mr. Pendery has a constitutional right to fly a Pride flag and to post a social justice sign on his own property,” Mark Silverstein, ACLU of Colorado Legal Director, said of the lawsuit. “The Metro District’s rules, which carry the force of law in the Whispering Pines subdivision, violate the First Amendment and the Colorado Constitution’s guarantee of free expression.”
In the last several months Silverstein said the ACLU has gotten a number of tips in which residents are told they cannot display flags or signs expressing their own views.
“And as it turns out, a majority of homeowners in Colorado live under restrictions like these,” Silverstein said.
Most new homes in Aurora and across the state are built in metro districts and live under the rules of a homeowner association.
“The Colorado legislature should step in and enact legislation to make it clear that both HOAs and metro districts cannot forbid residents from posting signs or flags that express their views on social and political issues,” Silverstein said.