Final order filed in Prince Edward County flagpole appeal

Published 12:27 am Thursday, June 20, 2024

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Judge W.A. Sharrett had a couple issues with the case. He had been assigned to the latest flagpole appeal, a over the 60-foot flagpole at the intersection of East 3rd Street and U.S. 460, as Carolyn and Corbett Bowman appealed the zoning violation. Sharrett officially dismissed the appeal in his final written order, citing reasons why he felt the case couldn’t move forward. 

Back in August 2023, the Bowmans appealed the zoning violation given by the Prince Edward Board of Zoning Appeals. Specifically, they wanted the zoning administrator’s decision invalidated, the one that stated the family was limited to 120 square feet of flag size. 

Opponents and the county say their Confederate flag exceeds the allowable height limit and is not authorized under the zoning ordinance. At the time, the maximum height allowed under the county ordinance was 25 feet. The Confederate flag is on a 60-foot pole. The county ordinance has since been adjusted, now stating residents can have three flags, totaling 120 square feet, on one parcel of land. 

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But in his final ruling, Sharrett basically said it was how the flagpole appeal was filed, not any of the facts of the case, that caused him to dismiss it. 

Sharrett’s reasons

The issue is that when the Bowmans appealed, their attorneys listed the Board of Zoning Appeals, not the Prince Edward County Board of Supervisors, as the defendants. “The Board of Supervisors of Prince Edward County is a necessary party to the petition,” Sharrett wrote in his final order. “The Board has not been named as a necessary party.” 

The issue here concerns two parts of Virginia law. First, Virginia Code 15.2-2314 states that any review of a decision of the board of zoning appeals “shall not be considered an action against the board and the board shall not be a party to the proceedings.” Basically, the county argues, if you have a problem with a zoning decision, you need to file against the county, not the board of zoning appeals. That didn’t happen here, the judge said. 

“Nowhere in the caption, in the introduction, the overview, or in the prayer for relief is the board of supervisors mentioned, much less mentioned as a necessary party,” Sharrett said. 

The judge said the court might even overlook that, since there is a reference to the Board of Supervisors in the 40th paragraph of the flagpole appeal, if that mention informed supervisors they were “being called upon to defend particular issues.” 

It did not do that, Sharrett wrote. The board of supervisors was never identified as a necessary party to the case.
Also, leaving off the Board of Supervisors leaves a court with limited options, Sharrett wrote. The Virginia Supreme Court ruled in 2017 that “a court lacks the discretion to allow the filing of an amended petition when the petition does not name the local governing body.” In other words, because the Board of Supervisors is the governing body for Prince Edward, and the group was not named in the appeal as a defendant, the case needs to be tossed. 

Sharrett agreed with that statement, giving some leeway. The court couldn’t allow the filing to be amended, he wrote, because the decision being appealed happened more than 30 days ago. And, since “a necessary party not being before the court, the court’s only available remedy is to dismiss the petition,” he wrote. 

What triggered flagpole appeal?

In April 2022, Prince Edward County officials sent a violation notice to the Bowmans, claiming their flagpole didn’t meet height requirements. The county claimed the flagpole was an “accessory structure” and pointed to their ordinances, which say such structures can’t be higher than 25 feet. 

The Bowman family appealed, pointing out they received a building permit for the flagpole, signed by a building official employed by Prince Edward County. They also argued there was a 60 day limit to recall an approved building permit unless it was obtained by malfeasance or fraud. That date had long since passed. Also, they claimed the county’s argument violated their First Amendment rights. 

The Board of Zoning Appeals agreed with the Bowman family. By a 3-0 vote, with two board members abstaining, they agreed to leave the flagpole up. Any mistakes made by the county staff should have been caught within the 60 day window, the majority said. 

Who pays for county counsel?

Now for this dismissed appeal, before anyone asks, the county taxpayers didn’t foot the bill for this case. Since the county was the one being sued, their insurance carrier is handling the bill for the defense.