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Re: POW-MIA Flag Can Stay (For Now)

From: POW-MIA InterNetwork

Date: July 24, 2003

"Appeal panel says POW/MIA flag can stay

By ROBERT STERN

HAMILTON - The POW/MIA flag that has been flying in front of Ralph and Dori McIlvaine's house since May without their housing association's approval should be allowed to stay, an appeals committee of the Evergreen homeowners' association decided last night.

However, the McIlvaines should pay $1,000 of the attorneys' fees the association has incurred to address the flag issue as well as $50 in fines for flying the flag without permission, the panel recommended.

Whether or not that recommendation wins the association board's approval at its next meeting on Aug. 4, Mayor Glen Gilmore said he will introduce an ordinance that would bar homeowners' associations from preventing their residents from flying certain kinds of patriotic flags.
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Those would entail the U.S. flag, the POW/MIA flag and flags of any of the armed services of the United States, Gilmore said.

Gilmore said he doesn't know how many developments with housing associations in town prohibit displays of any of those flags without special permission.

In the 418-unit Evergreen development of single-family homes where the McIlvaines live, the only flags residents are allowed to fly on their property are the U.S. flag and the New Jersey flag.

Any other flags, including the POW/MIA flag, cannot be flown unless the resident gets an exemption from Evergreen's governing board.

The McIlvaines hoisted their POW/MIA flag before they filed for permission to do so and continued to fly it - incurring fines of $25 per day - even after their waiver request was denied, leading to yesterday's appeals hearing.

The township ordinance that would outlaw restrictions on certain flags is slated for introduction at the township council's next meeting, Aug. 5.

The Evergreen panel's recommendation on the McIlvaines' case came during a three-hour closed hearing it held with the McIlvaines and another couple.

During the meeting, the other couple - Jack and Sandy Battaglia - dropped their fight for permission to hoist a "We Support Our Troops" flag in their front yard, Jack Battaglia said.

"People that were there tonight seemed to agree that the POW/MIA flag should . . . be allowed to fly here," he said. "Our (We Support Our Troops) flag, we didn't really pursue it because it's a lost cause," he said. "We didn't press the issue because the POW/MIA flag would be easier to get accepted."

The McIlvaines said they grudgingly consented to the panel's recommendations in part because they saw no other way to bring the meeting to a close with some kind of decision.

"We would have been in that room till midnight," Ralph McIlvaine said after the meeting, which started at 6:30 p.m. and ended just after 9:30.

That decision, however, is not binding on the association's seven-member board of trustees, said Francis J. McGovern, the association's attorney, who took part in the hearing at his $205 hourly rate.

"In the meantime, they're allowed to fly" the POW/MIA flags without incurring additional fines, McGovern said.

Likewise, the appeals panel agreed to recommend that the Battaglias be allowed to fly a POW/MIA flag on their property instead of the "We Support Our Troops" flag and not be subject to any penalties, McGovern said. McGovern said the appeals hearing took three hours because there were different proposals on a resolution that were considered.

Those ranged from requiring both couples to fly nothing other than an American or New Jersey flag on their properties to having a single POW/MIA flag hoisted on the main Evergreen flagpole, McGovern said.

He said he doesn't anticipate Evergreen's governing board will make a fuss over Gilmore's proposed flag ordinance, but that the matter is not something that the board has yet discussed with him.

"I don't see a great clash right now," he said. "This association works pretty closely with the town and tries to do whatever we can to cooperate."

None of the five appeals panel members who took part in yesterday's meeting would answer reporters' questions.

The committee's chairman, Gene Lyons, was barred from taking part in the meeting because he had already expressed an opinion on the dispute in favor of allowing the POW/MIA flag to fly.

But McGovern said there was no truth to speculation by some of the dozen or so residents who gathered outside the hearing to await a decision that John Peraino, the president of the Evergreen board of trustees, did take part in the hearing although he hasn't been sympathetic to the McIlvaines on the issue.

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