A flagpole bearing a Confederate battle flag visible from Interstate 64 is not a monument, according to an opinion from a Louisa County circuit judge.
The judge’s decision follows an Aug. 21 court hearing in which the plaintiffs, who are appealing an earlier decision by Louisa’s Board of Zoning Appeals, argued that the flagpole was part of a monument to a Confederate soldier buried nearby.
The flagpole was erected in 2018 and initially called the Charlottesville I-64 Spirit of Defiance Memorial Battle Flag by the Virginia Flaggers in response to Charlottesville City Council votes to remove two statues of Confederate generals. The 30- by 50-foot flag flies from a 120-foot-tall pole about 15 miles east of Charlottesville. The flag, erected on private property, is momentarily visible to motorists traveling east on I-64.
Zoning officials contended that the structure was more than twice as tall as the 60-foot maximum allowed by county ordinance. They ordered that the flagpole either be removed, be reduced in size, or that the property owner obtain a special-use exception from the Louisa County Board of Supervisors. The decision was appealed to the Board of Zoning Appeals and denied in 2018, leading the Flaggers and the property owner to appeal that decision.
In Judge Timothy K. Sanner’s opinion, he wrote that he did not find the flagpole to be a monument, citing witness testimony from the Aug. 21 hearing. During that hearing, Gary Freix, the property owner, and Flaggers representative Grayson Jennings testified that there was a wall and two statues placed nearby, which, in conjunction with the flagpole, constituted a monument.
However, neither man was able to testify with any certainty as to whether those other structures were present when Jeff Ferrell, an assistant county administrator, inspected the property on April 17, 2018.
“Given the nature and purpose as to why he was there, it is apparent that [Ferrell] gave careful attention to the specific nature of what he was observing at that time to determine whether it was in violation of any of the ordinances of Louisa County,” Sanner wrote. “By comparison, the plaintiff’s witnesses, [Freix] and [Jennings], were relatively vague about what was specifically on the property as of the date of inspection.”
As a result, Sanner wrote that he was forced to conclude that, at the time of inspection, little else existed on the site beyond graves and the flagpole.
“The evidence before the court suggests that what was present upon the property as of April 17, 2018, was a graveyard in which a flagpole had been erected,” Sanner wrote. “Having fully considered this issue, the court cannot say that the Board of Zoning Appeals’ determination that the flagpole did not constitute a monument, nor exception to the height limit, is plainly wrong; consequently, the court affirms the determination of the Board of Zoning Appeals on this point.”
Sanner also found to be lacking a second argument from the plaintiffs alleging that the flagpole does not constitute a structure or building and is thus not subject to the county’s 60-foot height limit.
Though the flagpole is certainly not a building, Sanner said, given its size, it did constitute a structure. Furthermore, the exception provided for buildings and structures taller than 60 feet only applies to permitted structures, which the flagpole is not.
In upholding the Board of Zoning Appeals’ decision, the court dismissed the plaintiffs’ appeal, but noted that the case is not wholly dismissed because other, bifurcated issues remain.
No further hearings are currently scheduled.
Source: www.dailyprogress.com