Prince Edward judge rules against county in flagpole appeal

Published 4:41 am Thursday, February 16, 2023

FARMVILLE – The 60-foot flagpole at the intersection of East 3rd Street and U.S. 460 has been a topic of conversation in Prince Edward County for nearly a year. Even though the large Confederate flag that flies from it has caused some controversy, the main discussion is focused on the size of the pole. After months of discussion, a Prince Edward Circuit Court judge ruled in favor of keeping the flagpole standing.

At the hearing on Monday, Feb. 6, the Prince Edward County Circuit Court rejected the Prince Edward County Board of Supervisors appeal to remove the flagpole that stands 35 feet above the maximum height for its zoning area. According to court records, the ruling has not yet been officially filed, but the judge ruled that the defendant could keep the flagpole standing.

“While we are certainly disappointed in the outcome of the appeal, we appreciate the consideration of the appeal,” said Prince Edward County Administrator Doug Stanley.

How did this come about?

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This hearing came after the Prince Edward County Board of Supervisors voted at its July 2022 meeting to appeal the decision of the Board of Zoning Appeals to reverse the Notice of Violation issued for the erection of the flagpole located at the intersection of East 3rd Street and U.S. 460. According to Stanley, the Board unanimously believed that the case should be reviewed by the courts.

“The flagpole, in the assessment of County staff and County legal counsel, violates the County Zoning Ordinance, as it was erected without the prerequisite zoning permit,” said Stanley. “This issue has caused considerable consternation in the community and the Board felt pursuing the enforcement of the County Code was in the overall best interests of the community.”

In light of this ruling, the Board will spend time in the coming month to discuss if they should request that the Virginia Court of Appeals consider the matter further.

Background on flagpole fight

This discussion started on April 11, 2022, when the zoning administrator’s notice of violation was submitted regarding the flagpole. This flagpole is 60 feet tall in a zoning area that has a maximum height of 25 feet. The county has attempted to remove the flagpole but property owners Carolyn and Corbette Bowman filed an appeal halting the process.

The day after the violation notice was the April 2022 Board of Supervisors meeting. At this meeting, the board held a closed session to discuss the flagpole. Once back in open session, the board voted to adopt an emergency ordinance that capped the maximum size in certain zoning districts to prevent a similar event from occurring again.

In June 2022, the Board of Zoning Appeals held a public hearing to discuss the flagpole’s removal. Here, the Bowmans’ attorney, Herschell Keller, argued that they obtained the required approvals to get the flagpole approved. The appeal also referenced Senate Bill 1079 that says if more than 60 days pass since the building permit then the decision may not be changed unless it was obtained through malfeasance or fraud. The appeal also argues that the removal infringes on their First Amendment rights due to the current flag flown.

The attorney representing the county, Andrew McRoberts, opposed this argument by stating that in Prince Edward County only the zoning administrator, also serving as county administrator, and the assistant zoning administrator are authorized to issue permits. He cited two clerical errors during the issuing of the permit, including the inclusion and omission of certain language used on the form. However, these errors should have been caught in the 60 days.

An opposing appeal was submitted by Robert Love, the county’s director of planning and community development, along with McRoberts. This appeal argues that the flagpole does not comply with the zoning requirements and that the site is zoned for general use where an accessory use like a flagpole is not permitted.

The Board of Zoning Appeals ultimately decided, with a vote of two abstaining and three affirming the Bowmans’ appeal, to leave the flagpole up. It was after this decision that the board of supervisors met and voted to take this matter to court.