LOUISA — The legal battle over a large Confederate battle flag visible from Interstate 64 reached Louisa County Circuit Court on Thursday.
The flag was erected in Louisa in March 2018 by the Virginia Flaggers after a private citizen reached out in response to 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.
A post on the Flaggers’ Facebook page said that, in addition to defying Charlottesville City Council votes, the flag flies in honor of Confederate soldiers and specifically to Pvt. Richard Willis Proffitt, who is buried near the flag’s site.
However, not long after the flag was first flown, Louisa officials said the pole was more than twice the 60-foot maximum allowed by the county’s ordinances and ordered the flag pole to be shortened or removed, according to attorney David Konick, who is representing the Flaggers.
The Flaggers countered that they had done their due diligence and appealed the decision. In a narrow decision last July, the Louisa County Board of Zoning Appeals upheld the decision that the pole violated county ordinances. The Flaggers again appealed the decision, this time to Louisa County Circuit Court.
On Thursday, attorneys made arguments before Judge Timothy K. Sanner about the underlying issues of the appeal.
County Attorney Sandra Robinson argued that the Louisa BZA’s decision was properly based in county ordinances and that the Flaggers did not take the proper steps to erect the flag pole.
“The appellates failed to promote evidence during the July BZA hearing that they complied,” she said. “There was no written determination from a zoning administrator.”
The Flaggers had contacted a county official named Jenny Carter, who told them via phone that they could erect the pole. However, when they sent an email to confirm, they received no response, Konick said.
Later, Konick said the Flaggers were told that Carter did not have authorization to provide an exception for pole height and that the zone where the property was located did not allow flag poles to exceed 60 feet. The ordinance was expanded to apply the same restrictions to the rest of the county two days prior to the Flaggers being notified that they were violating the ordinance, Konick said.
The Flaggers’ lack of written proof of Carter’s decision was part of the reason their July appeal to the BZA was denied, Konick said, though he also said he does not believe the county zoning language specifically requires written approval.
“Zoning officials should have told [The Virginia Flaggers] via email whether they could or could not construct the pole, or that [Carter] did not have authority to approve it,” he said.
Because the area where the flag was erected already had a 60-foot maximum restriction, Robinson said, the pole was not grandfathered into the new ordinance.
Additionally, she said the Flaggers’ petition of appeal never mentioned the pole had been lawfully constructed and was therefore not eligible for an exemption.
“You don’t get the nonconforming use exception unless you can prove the pole was lawfully constructed,” she said.
At some point after the erection of the flag, the Flaggers argued that the pole and flag are a monument to the Civil War and Proffitt, pointing to a portion of the state code currently preventing the removal of the two Confederate statues in downtown Charlottesville.
Robinson said the monument claim was also not presented in the petition of appeal.
The issue has not been ruled on in court yet.
Little was resolved in the first hearing, though Sanner did decide to separate some of the case issues.
The next phase of the case is expected to be a motions hearing, though it has not been scheduled yet.