Property owners who are flying a Confederate flag over Interstate-85 in Spartanburg County suffered a setback in the latest development of their lawsuit against the county.
On Feb. 20, Judge Mark Hayes II ruled that a previously disputed notice issued by the county that said the flagpole violated permit requirements from the county’s Unified Land Management Ordinancewas actually correct. Further, Hayes ruled the Spartanburg County Board of Zoning Appeals erred in “arbitrarily” overturning the prior decision by the county, which would have brought the flag down.
The lawsuit was filed on Nov. 29, 2022, by the Adam Washington Bellenger Sons of Confederate Veterans Camp 68 organization. It alleged that Spartanburg County’s requirement that the group needed a permit for the flagpole and subsequent citation issued to the SVC Camp for permit violations was unconstitutional under South Carolina law.
The SCV Camp appealed Hayes’ decision at the beginning of March, but Hayes doubled down on April 5. In a written order, Hayes said that after “careful consideration” of arguments by all parties, he was unable to find that the SCV Camp raised any facts or legal principles that were overlooked previously.
“This Court has examined its prior order and can find no error of law or fact not appropriately considered as asserted in (SCV Camp’s) motion or brief,” Hayes said.
Hayes asked Spartanburg County’s lawyer to prepare a formal order denying the SCV Camp’s motion.
The 30x50 foot flag has been flying on the Teaberry Road property overlooking I-85, near Business I-85 and Highway 221, since Oct. 22, 2022. Approximately 80,400 cars pass by it every day, according to SCDOT data. One week after it was raised, county officials said the flagpole was in violation of a land-use ordinance.
As of April 15, the flag was still flying.
Previously:Spartanburg County waiting on courts to decide fate of Confederate flag flying along I-85
History of lawsuit involving Confederate group, Spartanburg County and Board of Zoning Appeals
According to theviolation notice signed by a county Planning and Development zoning inspector, the land parcel had no “principal,” or primary, use of land, such as a business or residence. Because the lot was vacant, having no “principal” use, the “accessory” use of the flagpole was in noncompliance, the county contended.
If a home or business were to be located there and obtain a permit "for a principal use of the property," then it would comply with the ordinance, County Councilman David Britt said on Nov. 3, 2022.
The initial notice of violation was dated Oct. 21, 2022, the day before the Confederate flag was raised. The SCV Camp was given until Nov. 10, 2022, to either remove the flag or obtain a permit for principal use of the land and lower it to 30 feet.
When the SCV camp removed the Confederate flag and replaced it with the South Carolina state flag shortly thereafter, county officials maintained the 150-foot pole was still in violation regardless of what flag was flying.
"It doesn't matter if it's the American flag or the flag of Sweden," Britt said.
More:Spartanburg County: Pole with SC flag that replaced Confederate on I-85 still in violation
The county’s notice of violation also said that the flagpole should be lowered to 30 feet.
The SCV neither obtained a permit nor lowered the flagpole. Instead, on Nov. 29, 2022, the group filed a lawsuit against the county.
On Jan. 31 of last year, the Board of Zoning Appeals voted 5-3 to overturn the Planning Department's notice that the flagpole was in violation because a permit was not obtained before erecting it.
In the lawsuit against the county, the SCV Camp asserted that permits were not mentioned in the 1999 land use ordinance. The Camp also argued the flagpole was an acceptable height since it was erected prior to Sept. 27, 2022, when the County's Performance Zoning Ordinance limited the height of flagpoles to 30 feet.
The case moved to circuit civil court on March 30, 2023 after the county filed a notice appealing the Board’s decision.
More:Free speech at heart of lawsuit against Spartanburg County over Confederate flag
Contention over Confederate flag’s message
Opponents of the flag, including County Councilman Monier Abusaft, the lone Black member of the council, said it sends an unwelcoming message.
"Constituents care about how it reflects on their community," Abusaft said, the Herald-Journal previously reported in September of last year.
Michael Brown, president of the Spartanburg NAACP chapter, called the flag an "eyesore," and said it should come down.
The SCV Camp has disagreed. In the same Sept. 2023 article, Greenville attorney Robert K. Merting said flying the flag is a way to honor soldiers of South Carolina who fought and died during the Civil War and other wars.
"We, of course, support free speech and will continue to defend our Constitutional right to fly flags of our choice," Merting said on behalf of the SCV Camp.
Spartanburg County spokesperson Scottie Kay Blackwell told the Herald-Journal Monday evening the county could not comment on pending litigation.
Chalmers Rogland covers public safety for the Spartanburg Herald-Journal and USA Today Network. Reach him via email at crogland@gannett.com.
