LOUISA — A Louisa County judge soon will decide if a large Confederate battle flag visible from Interstate 64 is considered a monument following a Friday hearing in Louisa County Circuit Court.
The hearing was the latest in a contentious legal saga that began soon after the Virginia Flaggers erected the flagpole in 2018.
Named the “Charlottesville I-64 Spirit of Defiance Memorial Battle Flag” by the 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 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 was erected, Louisa County zoning officials said the 120-ft structure was more than twice the 60-foot maximum allowed by the county’s ordinances. They ordered the flagpole be removed, reduced in size, or that the property owner obtain a special-use exception from the Louisa County Board of Supervisors.
The decision was appealed, which was subsequently denied by the Louisa County Board of Zoning Appeals in July 2018. That decision was appealed to the Louisa County Circuit Court, where Judge Timothy K. Sanner granted a motion to bifurcate the case in 2019, separating the issues in the case.
After delays caused by the COVID-19 pandemic, the petitioners and county presented evidence for the first time Friday. The hearing focused on whether the flagpole should be considered a monument, which would grant it a height exception under the Louisa County zoning ordinance.
Representing the petitioners, attorney David Konick said the flagpole was intended to be a monument to Pvt. Richard Willis Proffitt, a Civil War veteran who is buried nearby. Proffitt, who did not die in the Civil War and lived until 1916, is one of several individuals buried on the property.
“The ordinance does exempt several things from height restrictions, including monuments, which are undefined,” he said. “The zoning administrator’s determination that the flagpole is not a monument is in error.”
The flagpole is only part of the monument to Proffitt, Konick said, and two statues and a wall near the base of the pole make up the rest.
However, Louisa County Attorney Helen Phillips argued that the wall and statues were constructed after the flagpole’s March 2018 unveiling in order to build a case that the structure was part of a monument.
“They’re trying to, after the fact, shove this square block into a round hole and say it’s a monument,” she said.
Konick called two witnesses — Gary Freix, who owns the property on which the flag sits, and Grayson Jennings of the Virginia Flaggers.
Freix said Proffitt and other family members were buried on the property when he purchased it several decades ago. He decided to fix up the cemetery and was later approached by the Flaggers about erecting a flagpole.
According to Freix, the hole dug for the pole was 10 feet deep and 10 feet wide. The pole was inserted into the hole, surrounded by concrete and supporting beams and then further surrounded by sand. In the years since its construction, Freix said many bad storms have hit the area and he has never seen the flagpole budge.
When cross-examined, Freix said “he did not remember” whether the statues and wall by the flagpole’s base were constructed before or after the Board of Zoning Appeals’ July 2018 decision. Jennings later testified that parts of the wall had been constructed by March 2018, though he did not recall how much.
Much of the county’s argument focused on how neither Freix nor the Flaggers obtained zoning or building permits before constructing the flagpole. Because these steps were not taken, Phillips said, zoning officials were not able to assess the area around the flagpole that could become damaged if it fell.
Pulling up a satellite image of the property, Phillips called on Jeff Ferrel, an assistant county administrator, who detailed some diagrams on the image. Around the flagpole was drawn a red circle, which Ferrell said showed where the pole could hit if it fell.
According to Phillips, that area touches a public road as well as Freix’s auto-repair business, which is open to the public. By building the structure without consulting local ordinances, Phillips argued the petitioners had created a public safety issue.
“It’s not attached to anything, it’s just held in there with gravity,” Phillips said earlier in the hearing, quoting from a transcript of the July 2018 Board of Zoning Appeals hearing.
During closing arguments, Konick cited dictionary definitions for monuments and argued that the county never tried to define what was and was not a monument during its arguments.
“Our position is that this is a monument and as a monument, it is exempt to height restrictions,” he said.
Phillips countered that the burden of proof that the flagpole was part of a monument was on the petitioners, not the county, and stood by earlier arguments that the wall and statues were built afterward in order to strengthen the petitioners’ argument.
“The fact is that this structure poses a significant danger and that is the reason for all these zoning rules,” she said. “It’s very clear they want to be exempt and they’ve cavalierly disregarded the process.”
Judge Sanner said he would issue a ruling via letter sometime in the weeks to come. Regardless of Sanner’s decision, several other issues remain unresolved and will be addressed at future hearings.
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