LOUISA — The legal battle over a large Confederate battle flag visible from Interstate 64 in Louisa County is inching closer to a court date.
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 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 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 said county official Jenny Carter told them via phone that they could erect the pole. However, no written proof of this exchange has been presented, which the Board of Zoning Appeals has used to claim the Flaggers were not given proper permission to build beyond the zoning ordinance height limit.
In their petition, the Flaggers also claim that the flagpole is a monument to the Civil War and its veterans, therefore making it exempt from height limitations, per state code.
“The BZA erred by ignoring the fact that the Louisa County Zoning Ordinance specifically exempts monuments and/or flagpoles from height limitations in all residential and the A-2 agriculture zoning distric1 and in its de facto determination that the Confederate veterans war memorial monument is not a ‘monument,’” the petition reads.
In May, a Louisa County circuit judge heard motions in the appeal, issuing a ruling on some of them later that month. Judge Timothy K. Sanner denied the county’s motion to dismiss the lawsuit outright, but did agree that the petition failed to show that Carter produced any written approval.
Sanner also allowed the petition to be bifurcated, separating the issues into two parts to be considered individually. Specifically, Sanner will allow an evidentiary hearing to, in part, determine whether the flagpole is a monument and might therefore be exempt from height restrictions.
In his May order, Sanner wrote that the court will not rule on the constitutionality of the Louisa County zoning ordinance until after ruling on the validity of the BZA’s earlier decision.
Following Sanner’s order, the county took issue with claims from the plaintiffs that the flagpole is exempt from zoning ordinances because it is not a building and the argument that such a height restriction does not apply to a flagpole in an R-2 residential zoning district.
“The County admits the allegation that the flagpole is not a building,” the Board of Supervisors’ answer to the petition reads. “The County denies that flagpoles are exempt from the height restrictions in A-2 zoning district (notwithstanding Petitioners’ studied effort to conflate the A-2 height exemptions with the height exemptions for residential zoning districts).”
The county maintained its stance, asking for a dismissal of the BZA appeal, as well as a dismissal of any attorney fees or other relief that may come from the appeal.
In a similar vein, philanthropist John Kluge is attempting to raise funds to erect a flag celebrating U.S.-Mexico relations on land he owns near Trump Winery in Albemarle County.
Though the project is still in its early stages, Albemarle’s zoning code currently allows for tall flag poles in the rural area, where the property is located, as long as they are located farther from the property line than the flag is tall.
A hearing date to work out remaining issues in the Louisa County case is set to be scheduled on July 15. The hearing date is expected to be sometime in the fall.