By ROBERT CADWALLADER

Sunday, June 2, 2002

MANSFIELD _ The spot where Kenneth Gross planted his American flag more than four years ago has become a battleground.

The 3-foot-by-5-foot flag flaps on an 18-foot aluminum pole next to his two-story home in the Oakview Estates subdivision, near the northern edge of Mansfield. The three-member board of the Oakview Homeowners Association has decided in recent months that the flag pole violates the neighborhood's deed restrictions and should be removed.

Gross said the standoff will wind up in court before he takes it down.

Although the deed restrictions don't specifically mention flags or flag poles, an association board official said wall-mounted flag poles are considered acceptable. But Gross sees nothing wrong with free-standing flag poles, and he believes he has public sentiment on his side.

That may be particularly likely in the wake of the Sept. 11 terrorist attacks, which has sparked an emotional resurgence in displaying the nation's flag and its colors. But sentiment didn't translate into action when Gross asked the City Council to intervene last week.

He was told the city does not get involved in deed disputes.

Homeowners associations in Texas and around the country are given broad powers to enforce covenants that in many neighborhoods dictate in minute detail the appearance of properties and activities of residents. Those can include controls on garage sales, how often grass has to be cut, what materials can be used for fences and roofs and even what ornaments can be placed in front yards.

Gross noted that the city of Las Vegas adopted an ordinance in November that limits the ability to control how flags are displayed. But Mansfield City Attorney Allen Taylor, who heads a Fort Worth law firm that represents many Metroplex cities, said that wouldn't fly in Texas.

"Texas law does not allow us to invalidate a deed restriction by local government code," he said. "The states in those areas have adopted an enabling act that gives the authority to do that. Texas hasn't."

Florida did earlier this year, partly because of complaints about homeowners association restrictions that conflicted with Gov. Jeb Bush's call for more flag flying.

However, a Marine veteran of Jupiter, Fla., still faces a court judgment and foreclosure on his home because of $30,000 in fines racked up in a flag-pole dispute with his homeowners association.

Realizing the difficulty in fighting homeowners associations, some veterans groups urge compromise in what they see as an increasing number of flag-conflict cases.

"As long as the flag is flown properly, that's the only key," said Mike Palmquist, department adjutant of the American Legion of Texas, which often works to resolve such cases. "We're for flying the flag."

The board of the 200-home Oakview subdivision has recently offered a compromise _ a 10-point agreement that includes allowing a 14-foot pole and limiting flag displays to daylight hours only.

But Gross objects to a requirement that he agree to remove the pole upon a second violation of the terms.

"They're asking me to sign away all my rights to appeal any decision they might make," said Gross, who said he put up his flag pole long before the board was created in early 2001. "I don't think they have any right to have a say on whether I can have a flag pole."

Oakview residents Viola and Dan Brown, who like other residents pay $440 a year in association dues, said their request for permission to erect a flag pole was rejected in February. The board said it wouldn't "fit in with the neighborhood."

Board President David Mahofski referred most questions to the board-hired CMA management company of Southlake, which could not be reached for comment over the weekend. But he said the board is only enforcing covenants that residents agreed to when they bought their homes. Residents also can change those covenants, he noted.

"Homeowners associations and deed restrictions have proven to be a good thing," he said. "They have been shown to hold higher retail values for their homes than neighborhoods without homeowners associations."

But there can be trade-offs, including individuality, said Allan Saxe, a political science professor at the University of Texas at Arlington. He advises that anyone planning to move to a neighborhood with a mandatory homeowners association read the deed restrictions carefully first.

"We think that because we have private property we can do pretty much what we want with it," he said. "But that's not true."