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Judge denies motion to dismiss Louisa flag appeal

LOUISA — The legal battle over a large Confederate battle flag visible from Interstate 64 will continue after a judge denied a motion from Louisa County officials to dismiss the case.

The flag was erected in Louisa in March 2018 by the Virginia Flaggers after an individual reached out to the group following the Charlottesville City Council’s vote to remove a statue of Gen. Robert E. Lee.

Named the “Charlottesville I-64 Spirit of Defiance Memorial Battle Flag” by the Flaggers, the 30- by 50-foot flag flies from a 120-foot-tall pole approximately 15 miles east of Charlottesville. The flag, erected on private property, is visible for a few seconds to motorists traveling east on I-64.

Not long after the flag went up, Louisa officials said the pole was more than twice the 60-foot maximum allowed by the county’s ordinances in an A-2 zoning district and ordered the flag pole to be shortened or removed, according to court filings from the Flaggers and the property owner.

The Flaggers claim that a county staffer gave them verbal permission to erect the pole, but no written permission exists, and in August 2018, the Board of Zoning Appeals cited this in its decision that the flag violated local ordinance.

The case has since been appealed to the Louisa County Circuit Court.

Louisa County circuit Judge Timothy K. Sanner said Thursday that he will allow an evidentiary hearing in August to, in part, determine whether the flagpole is part of a monument and might therefore be exempt from height restrictions.

Sanner also heard arguments from opposing counsel on the county’s motion to dismiss the lawsuit.

Helen Phillips, Louisa’s county attorney, presented the county’s argument, the crux of which was that the petitioners have not been aggrieved because they never applied for a special exception that would have allowed them to exceed the 60-foot maximum.

Because they have not requested this special exception, Phillips said the petitioners have not exhausted their options and thus the case is not yet ripe to be appealed to the circuit court.

“The petitioners were given three options: reduce the height of the flagpole, apply for a special exception, or remove the structure,” she said. “As of yet, no special exception has been applied for.”

David Konick, representing the petitioners, argued that if his clients applied for a special exception as suggested by the county then they may lose their ability to appeal the BZA decision.

“If we were to do what the county says and apply for the special exception permit, what would happen to this case?” Konick said. “How would we get back here?”

Konick also argued that the motion was virtually identical to the previous motion to dismiss and strike, which Sanner denied last May.

Though it was not the focus of Thursday’s hearing, Sanner also questioned Phillips about the county’s view on the monuments argument.

The petitioners have argued that the flagpole is part of a monument and is therefore protected from removal under the same code section that has prevented Charlottesville officials from removing the Lee statue, as well as one of fellow Confederate Gen. Thomas “Stonewall” Jackson.

Though the code section soon might be changed to allow localities to remove war monuments, most of Sanner’s questions for Phillips revolved around whether a monument had to be erected by a locality or with a locality’s permission.

“Are you arguing that only the Board of Supervisors has the right to erect a monument, because that seems like a strange restriction on due process rights,” Sanner said.

Phillips countered that the state code that protects war monuments and memorials would only apply to those erected with permission by the Louisa County Board of Supervisors and thus this particular flag could not claim an exception.

After a short recess Thursday, Sanner returned and denied the county’s motion to dismiss, ruling that there was enough evidence to suggest the petitioners’ claim that they had been aggrieved by the BZA decision.

An evidentiary hearing is set for Aug. 21 in Louisa County Circuit Court.


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