Law exists, among other reasons, to facilitate the treatment of equals equally and unequals unequally. When it does not do that, it ceases to act as law. That’s the heart of the complaint registered by a Bossier City family sued by their homeowners’ association for having a non-compliant sign in their front yard.
(Note that the home-owning couple in question is the aunt and uncle of my niece and nephew. Also, I also own property under a homeowners’ association, although a different one but which has similar kinds of restrictions.)
Timothy and Jodi Burr months ago put a banner of 18 square feet in their front yard in the Gardens of Southgate subdivision in Bossier City, supporting their son Cody, an active-duty Marine in the Middle East.
No doubt it is garish and not to everybody’s taste, and its size is unmistakable. It also violates their homeowner’s association agreement, which like many typically do limits signage to matters of real estate.
The HOA got around to asking for the sign removal some months ago, during which the Burrs were more than accommodating in trying to find a solution that could please all parties. They would reduce the size, but the HOA seems unwilling to discuss that. They asked for a change in the restrictions to allow something like it during a deployment, but received no response. Instead, after a number of letters sent to them by the HOA, it sued.
Which means if the HOA wanted to be consistent, it would have to sue a lot of other association members. The neighborhood at the time of its suit was littered with noncompliant, if smaller, signs. In fact, according to the Unified Development Code under which Bossier City operates, the Burrs’ signs and any of those others are legal violations as well, which probably explains why the HOA must restrict them. (And, it may be that it'll have deal with a lot of others as well.)
But the city turns a blind eye to them because it’s a popular sentiment to advertise some kind of support for a school or team. And to enforce vigorously the standard the HOA may believe would upset a lot of its members. However, regardless of inconvenience, what’s sauce for the goose is sauce for the gander: if only one violator is pursued, it sure smacks of selective enforcement where the HOA arrogates to itself the power to decide what kinds of messages may be advertised, creating a slippery slope for application of political correctness.
Both items get touched on in the suit’s response, which already is leading the HOA’s board into a public relations disaster. The story has gotten worldwide media coverage, support seems overwhelmingly in the Burrs’ favor including within the neighborhood (with pro bono legal support), making the job of serving on the board even more thankless and threatening to drain substantially the coffers of the HOA if it ends up losing.
The best solution would appear to allow for a smaller sign, even as small as the others, which for legal purposes as far as the city goes can try to be shoehorned in under Section 8.2.3.A of the UDC (“one home business sign of no more than one square foot in area per residence”) or Section 8.2.2.I (“Political signs, which identify and urge citizens to support a … non-commercial public cause,” although the relevant passage implies it must be related to an election of some kind) which would limit it to nine square feet (not that every candidate takes responsibility for this). Why the HOA seems so inflexible in trying to impose an all-or-nothing solution without discussion in this case where it does not do so for any other obvious violation truly perplexes.
This incident matters because private groups can use government power to enforce its dictates. It’s one thing when public servants, aware of scarcity of resources, must be selective in their enforcement, such as when police must choose a particular speeder among many to pull over. It’s another entirely when a private interest can use government power, through the court system, to pick and choose which among multiple violators among its voluntary and cooperative membership to prosecute and, if successfully, depriving them of their liberty in some fashion.
Ultimately, this does not mean that the law can’t favor certain interests over others (murderers, for example, are acted against very prejudicially by the law), but it does mean that it has an obligation, when it is acting in the case of a private dispute, to ensure that it decides in favor of the plaintiff only if the plaintiff has not used its power in a discriminatory fashion. To permit otherwise invites a tyranny of those claiming to act on behalf of the majority in their own private matters for their own private agenda subsidized by government, and that is not law.
Posted by Jeff Sadow at 08:40