GILBERT, Ariz. — As Memorial Day approaches, one Gilbert family is in a battle with their Home Owner’s Association because of their attempt to honor their fallen son.
Craig and Alma Smith lost their son, Donald Smith, in a military exercise in 2006. Donald Smith received full military honors and was laid to rest at Arlington National Cemetery.
The flag that draped Donald’s coffin, the Burial Flag, holds a special meaning to the Smith family - as it does all Gold Star families. The Smith’s have a special way that they want to display that burial flag.
“Our intent was to build a memorial to him in our front yard with a plaque dedicating the flagpole to his life.” Craig Smith, Donald’s father said. “On the first day, we would fly his burial flag. On the second day, we would bring it down, have it refolded by the Honor Guard, and replaced by a regular flag.”
But according to the Seville Homeowners Association, that will not happen. The HOA cites an Association rule that Flagpoles must be constructed 15 feet or more away from the property line. That's impossible given the layout of their property.
Most homes in the Seville Association have small front yards, which would exclude them from the 15-foot rule.
“It’s not fair and it’s not keeping with the state law,” Smith said. “The state law actually prohibits an association from keeping a member of the association from having a flagpole and a flag in their front yard.”
Which is true. According to Arizona Revised Statute 33-1808:
“A. Notwithstanding any provision in the community documents, an association shall not prohibit the outdoor front yard or backyard display of any of the following:
1. The American flag or an official or replica of a flag of the United States army, navy, air force, marine corps or coast guard by an association member on that member's property if the American flag or military flag is displayed in a manner consistent with the federal flag code (P.L. 94-344; 90 Stat. 810; 4 United States Code sections 4 through 10).
2. The POW/MIA flag.
3. The Arizona state flag.
4. An Arizona Indian nations flag.
5. The Gadsden flag.
The statute goes on to lay out what an association can require of members wanting to display a flag:
“B. The association shall adopt reasonable rules and regulations regarding the placement and manner of display of the American flag, the military flag, the POW/MIA flag, the Arizona state flag or an Arizona Indian Nation flag. The association rules may regulate the location and size of flagpoles, may limit the member to displaying no more than two flags at once and may limit the height of the flagpole to no more than the height of the rooftop of the member's home but shall not prohibit the installation of a flagpole in the front yard or backyard of the member's property.”
Smith questions if the 15-foot rule is a “reasonable rule and regulation,” given the size of most front yards in the Seville Association.
In a statement given to 12 News, Seville Homeowners Association addressed the issue of the Smith flagpole:
Seville resident, Craig Smith, communicated a desire to install several landscaping items, including a flagpole and a memorial to his son. Any loss of life is tragic and the Association expresses its condolences to the Smith family. The Association took the Smith family’s architectural request seriously and acted diligently upon it. The Association approved all aspects of the request aside from the location of the proposed flagpole. Unfortunately, the location of the proposed flagpole lies within a Public Utility Easement (“PUE”). Moreover, the Association’s Plat expressly prohibits construction within the PUE. Specifically, the Plat provides that “construction within the public easements, except by public agencies and utility companies, shall be limited to utilities and wood, wire or removable type fencing unless approved otherwise by the Town of Gilbert.” As a courtesy to the Smith family, the Association investigated whether the Town of Gilbert permits construction within the PUE. The Association was informed that such construction is generally prohibited. The Association communicated to the Smith family, that while the flagpole request was denied (due its proposed location), that the Smith family has the option of proposing an alternative location (that does not lie within the PUE), and that the Association would give any subsequent request serious consideration. The Association remains open to resolving this matter with the Smith family.
In an email between the Town of Gilbert and Craig Smith, Jason Stanley writes:
“Per our conversation, I will outline the Town of Gilbert’s code on your flagpole installation.
- Flag pole’s under 30’ in height do not require a permit through the Town of Gilbert per section R105.2 of Gilbert’s Amended International Residential Code. Refer to note 11:
As such, a flag pole under 30’ is considered a landscape feature and is not subject to regulation by the Town. It may be placed within a Public Utility Easement. Any landscape feature within a PUE is subject to removal by the Utility if needed, and it is the customer’s responsibility to bear the cost of removal. Also, it is the customer’s responsibility to ensure that installation of any landscape feature does not conflict with utility lines within the area of construction.”
As this Memorial Day approaches, Craig Smith is looking at another attempt to persuade the Homeowners Association to allow his son’s memorial to stand.
The issue causes Craig and Alma Smith to relive the Arlington service and the pain of the loss of his son.
“I hope we remember that Memorial Day is about those who sacrificed and we’re just trying to represent one of those who sacrificed for the rest of us.”