Noteworthy Cases

The San Diego Union-Tribune

(Page B-3:1,6,7; B-1:2,3,4,5 )

John Gaines

Controversy gets run up the flagpole

John Gaines
18-Jun-1994 Saturday

The American flag, says retired Army Col. Linc Spaulding, was made to be flown from a flagpole -- free in the wind, free like this country is free. For those to whom the flag has meant so much, the best way to view it is from a pole.

Spaulding's sentiment would draw little argument, I suspect, particularly coming from a veteran of his stature.

But isn't it also possible to fly even the grandest of flags in such a way that it becomes, if not annoying, at least a distraction to those nearby? From a flagpole too large, too elaborate, too commanding?

Such thoughts are sharply at odds these days in San Elijo Hills, a handsome, hillside subdivision in Solana Beach. Homes there are worth anywhere from $350,000 to $650,000. Some sit near a golf course, while others boast a magnificent view of a wooded valley below.

Now the neighborhood is home to a more unusual distinction. It may have the two best-known flagpoles around, owned by Spaulding and another distinguished veteran. And the neighborhood association wants the poles gone.

Retired Navy Capt. Palmer Roberts and his wife, Bea, moved to San Elijo Hills in 1975, buying one of the development's models, which looked out over the valley. Roberts had spent 31 years in the military, the cornerstone coming when he wrote the plan used by the Seabees, the Navy's civil engineers, to build the artificial harbor used in the D-Day invasion at Normandy.

Roberts had owned a flagpole everywhere he had lived. Not surprisingly, he wanted one in San Elijo Hills.

The covenants and restrictions adopted for the development included a prohibition on poles of any type. Roberts said he checked with the developers to be sure a flagpole would be acceptable and said he was told it would.

His simple pole, perhaps 15 feet tall, has stood in his back yard ever since, with the American flag rarely absent. Today it is by the rear fence, far above a road that runs alongside the neighborhood and largely inconspicuous.

Spaulding and his wife, Georgette, moved into a house a few blocks away from Roberts in 1986. He too had served 31 years, in World War II, the Korean War, Japan. He met his wife in France, where she helped smuggle Jews into Spain.

Spaulding also wanted a flagpole, and in 1991, after his wife's death, he set out to get one. Aware of the general restriction on poles, he suggested that the neighborhood association amend its rules. The neighborhood voted and did not give Spaulding the required three-fourths approval. But the overall response was so weak that the vote was disregarded.

Still intent, Spaulding decided that if his immediate neighbors did not object, he'd put up a flagpole. After all, he reasoned, the association's rules would not be enforced unless someone complained. And many rules here were antiquated.

So, Spaulding said he asked neighbors who would be able to see the flag if they objected. Spaulding said they did not, but the question of the pole's height apparently did not come up.

The flagpole that followed is more elaborate than is Roberts'. At 25 to 30 feet -- some contend it is taller -- the pole rises slightly above nearby two-story homes, with a golden eagle, weather vane and the sidearms Spaulding needs to fly his late wife's flag, the flag of France. The pole sits in his front yard, easily eclipsing a fence and trees.

After it was raised, some neighbors complained to the association's president, Laurie Catron. There were concerns about its height; others said they hadn't been consulted, that the rules had been violated.

So the association's board decided the fair thing to do would be to vote again, asking if residents wanted to keep the rules or allow flagpoles, subject to review by an architectural committee.

Spaulding went door to door, asking residents to vote. Two letters urged neighbors to oppose the change, saying Spaulding's flagpole would be a proud addition for city hall but not the neighborhood.

Of 192 registered homeowners, 57 voted to change the rules, and 78 said no.

Given the vote, both Spaulding and Roberts were told to take their poles down. Both refused. The association says Spaulding had promised to take his pole down if the vote failed; Spaulding flatly denies the claim, but says he did offer to lower the pole.

"I'm inclined to feel that if I can destroy (the flag) any way I want, as the Supreme Court has ruled, I ought to be able to fly it," Spaulding said. He adds that flagpoles are common in nearby neighborhoods.

And the American flag remains a common sight in San Elijo Hills -- all but two of them flown from short staffs affixed to the fronts of homes.

There, despite enormous commotion, the matter stands today. The neighborhood association has sought an injunction to have the poles removed. Fueling matters further, Roberts was served with legal papers on the 50th anniversary of D-Day, an embarrassment for Catron, who says the timing was accidental. And an attempt to take the issue to mediation has failed.

A fund for the two veterans' legal expenses has been organized at the suggestion of Roger Hedgecock, the talk-radio host and former San Diego mayor who has championed their cause. Offers of help have come in from as far away as a law professor at Northwestern University, outside Chicago.

So where would you side? With the flagpole owners, who as much as anyone earned the right to fly their flags as they please? Or with the neighborhood association, which allowed the democratic process to work, not once but twice?

Taken by itself, I'm sure Spaulding's flagpole is very attractive. Yet it isn't surprising that some neighbors would complain. The pole is unlike anything else in this nicely tailored neighborhood, taller than homes and streetlights.

It's also likely that the very notion of a committee reviewing flagpole proposals, as the association's ballot proposed, was a turn-off, smacking of government bureaucracy.

But the best evidence that the neighborhood is wrong is still standing, in the back yard of the other veteran, Palmer Roberts.

Catron, the association president, says that to her knowledge his flagpole has never drawn a complaint. Spaulding believes the vote against flagpoles was dictated almost entirely by his pole. If so, Roberts is an innocent casualty.

It would be nice to have clear, uncomplicated rules for a neighborhood that don't require meetings or negotiation, particularly when the governors involved -- of a neighborhood association -- serve voluntarily. That's what San Elijo Hills has given itself in this case.

Sadly, I'm not sure that a black-and-white regulation always does the governed the best service. And I don't think it has happened here.

Copyright Union-Tribune Publishing Co.

Attorney Thomas Leary represents WWII veterans and repels attackers in flagpole flap (Second Article)