SPARTANBURG — Those flying the Confederate banner along I-85 suffered a defeat in court, but their attorneys said they don’t plan to raise a white flag.
Judge Mark Hayes ruled Feb. 20 that a notice of violation Spartanburg County issued against the 120-foot flagpole is valid and the county Board of Zoning Appeals abused its discretion when it overturned the notice in January 2023.
Attorneys for the landowner filed a motion to reconsider. There was a subsequent hearing, and Hayes indicated April 5 that his initial ruling would stand.
An attorney for the property owner told The Post and Courier it will appeal this ruling. A county spokesperson did not respond to a request for comment.
It started when less than an acre of land near the end of Teaberry Road changed hands in December 2019. It was an end-of-year gift to Adam Washington Ballenger Camp No. 68, the Spartanburg chapter of the Sons of Confederate Veterans Inc.
While tucked away on a seldom-used road just behind the tree line, the property sits close to where Interstate 85 and I-85 Business intersect. More than 80,000 cars pass by daily.
Robert K. Merting, an attorney for the new owner, emailed County Building Codes Director Gregg Hembree on Oct. 12, 2020, to see if a permit was required to raise a flagpole. The next day, Hembree responded: “No permit is required for a flagpole.”
Subsequent conversations with code officials received the same response, the camp reported, although they required a permit for electrical work at the site.
The Sons of Confederate Veterans contacted the Federal Aviation Administration, which sent a letter April 22, 2022, confirming that the pole would not obstruct air traffic.
On June 3, 2022, an electrical contractor got a permit, with the work described as “power for decorative lights.” The county inspected the electrical work July 7 of that year.
Some time afterward, a 30-foot-by-20-foot Confederate Naval Jack was unfurled atop the 120-foot pole.
Merting told the Board of Zoning Appeals that the organization initially flew a state flag, starting in August of that year, with the Confederate flag being raised Oct. 26, 2022.
A large Confederate flag is seen along Interstate 85 in Spartanburg County, Oct. 26, 2022.
However, a post on X — formerly Twitter — dated two days earlier from an account for the SCV Georgia Division indicated it was raised Oct. 22 or 23.
“Congratulations to the South Carolina SCV Division for raising the largest Confederate Battle flag in the state on I-85 in Spartanburg over the weekend,” the post said. “Keep it flying!”
Regardless of when it was raised, a flag that size is hard to miss, and it quickly gained notice — and notoriety. While once ubiquitous across the South, the Confederate flag has attracted ire in recent decades for its ties to slavery, segregation and white supremacy. The camp told The Post and Courier in October 2022 that the flag was meant to honor Confederate soldiers.
And the I-85 banner attracted so much attention that even the Council on American-Islamic Relations in Washington, D.C., felt compelled to comment.
“A flag representing systemic anti-Black racism, slavery and treason should not be flown in public spaces,” CAIR National Communications Coordinator Ismail Allison said in a released statement. “We urge county officials to ensure the removal of the flag.”
Spartanburg County has taken no official stance on the flag, but it has weighed in against the pole.
The problem, according to the county, is twofold. First, the property lacks a “principal use,” such as a house or business, which is required for an accessory like a flagpole. Second, the pole shouldn’t be more than 30 feet tall.
And while the Building Codes Department told Merting no permit was needed, the pertinent officials were actually in the county Planning and Development Department.
The county issued a notice of violation Oct. 21, 2022. The property owner appealed to the Board of Zoning Appeals. At a Jan. 31, 2023, hearing that lasted two hours, the board sided 5-3 with the Sons of Confederate Veterans. The reasoning: a permit was granted for electrical work, and the Unified Land Management Ordinance does not address flags.
Spartanburg County filed a notice of appeal March 30, 2023, in circuit court. And a Feb. 20 ruling overturned the Board of Zoning Appeals decision.
Hayes ruled that the notice of violation was correct, and the board’s reasoning for why it wasn’t is flawed.
“The fact that the Property Owner obtained an electrical permit has no bearing on the validity of the Notice of Violation,” he wrote, noting that the permit and notice were issued by different departments.
He also writes that “a plain reading of sections of the (Unified Land Management Ordinance) offered by staff clearly shows that a permit is required before a structure, such as a 120-foot high flagpole, can be constructed.”
Since this was strictly an appeal of the Board of Zoning Appeals ruling and speech rights weren’t a factor in that decision, Hayes said it would be improper for him to consider them during the appeal.
Whether speech was a factor was at the center of a different case.
The other lawsuit
While awaiting its initial appeal before the Board of Zoning Appeals, the local Sons of Confederate Veterans chapter sued to keep the county from taking any enforcement action.
Filed Nov. 29, 2022, the lawsuit alleges the county infringed on Adam Washington Ballenger Camp’s rights to free speech and free use of its land.
At the heart of the county’s concern was that the pole was flying a Confederate flag near Interstate 85, the lawsuit alleged.
The county denied this, and quickly sought to have the suit dismissed. It also asked to have Merting disqualified as the group’s attorney because he would also act as a witness. While it doesn’t appear that the court ruled on the latter request, Hawkins & Jedziniak LLC has represented the group ever since.
In a subsequent filing, the local chapter expressed concern that it couldn’t get a fair hearing. Mo Abusaft — a member of County Council, which appoints the Board of Zoning Appeals — disparaged the project to Herald-Journal reporter Bob Montgomery, according to a motion filed Jan. 27, 2023.
“I just don’t understand people who want to have a community with a $1.7 billion investment from an international car-making giant (BMW) but then go out of their way to make people feel unwelcome. Nobody moves their corporate headquarters to Hicksville,” Abusaft told the Herald-Journal .
That motion, filed late on a Friday afternoon, was a bid to keep the board from even hearing the appeal four days later. It wasn’t heard before the hearing, and the board sided 5-3 with the property owner.
Circuit Court Judge J. Derham Cole dismissed the case Nov. 27. The reason: the lawsuit was too early.
The plaintiff hadn’t yet exhausted its avenues to appeal the initial notice of violation, Cole wrote, and the flag still stood, so no speech rights had been violated
