If you’ve been following this year’s legislative session, you’ve undoubtedly heard of HB21-1310. Its stated purpose is to provide additional protections for homeowner’s freedom of expression in an HOA under the Colorado Common Interest Ownership Act (“CCIOA”). On July 2, 2021, Gov. Polis signed HB21-1310 into law, which will become effective on Sept. 7, 2021. Current law allows HOAs to restrict homeowner displays of flags and signage and only limits the application of architectural and landscaping regulations of HOAs so as to require that they allow displays of the American flag, service flags such as the "blue star" and "gold star" flags, and political signs, subject to specific statutory criteria. However, currently, HOAs may ban most other signs or flags.
The bill simplifies and broadens homeowner protections, requiring an HOA to permit the display of any flag or any sign at any time, subject only to reasonable, content-neutral limitations such as the number, size, or placement of the flags or signs, or prohibitions against commercial messages. The effects this would have on HOAs are fairly obvious - policies regarding flags and signage would have to be amended to comply with the new law.
Unfortunately, what constitutes "reasonableness" in HOA restrictions is not explicitly addressed by this bill. Since this is a legal question, as associations revise their policies, boards will need to consult with their legal counsel to develop language that both addresses their communities' needs, while remaining "reasonable" under the law. While it is reasonable to assume (no pun intended) that there will be some litigation in the months to follow which will test an association's ability to adopt " reasonable, content-neutral" regulations and what that exactly means, consulting with an attorney prior to changing the language of your association's policies may help reduce the risk of any potential litigation in your neighborhood.
For more information on what CCIOA currently says about flags and signs, please see section 38-33.3-106.5 (Prohibitions contrary to public policy - patriotic, political, or religious expression - emergency vehicles - fire prevention - renewable energy generation devices - affordable housing - drought prevention measures - child care - definitions). For more information on HB21-1310, please visit the Colorado General Assembly’s website.