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The Prince Edward County Circuit Court has been the venue again for a dispute over a 60-foot flagpole at the intersection of East 3rd Street and U.S. 460. The twist this time is that it’s a Prince Edward County board showing up as the defendant. 

Back in August 2023, Carolyn and Corbett Bowman appealed the decision that started everything, the zoning violation. Specifically, they want the zoning administrator’s decision invalidated, the one that stated Bowman 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. 

But while the focus in court has been the size of the pole based on zoning and building requirements, the actual appeal itself could get tossed, due to how it was filed. That’s what both parties are waiting for a judge in the case to make a final decision on in the next few weeks. The issue is that when the Bowmans appealed, whoever filed the case listed the Board of Zoning Appeals, not the Prince Edward County Board of Supervisors, as the defendants. 

The Bowmans’ attorneys say “to the extent the petition has any technical deficiencies, such deficiencies constitute a misnomer and may be corrected,” arguing that to the court in a Feb. 16 filing. They argued even though the petition didn’t include supervisors as defendants, the appeal itself should have put Supervisors on notice that they are involved. 

The county’s argument

The county, meanwhile, sees it very differently. County attorneys point to a number of pieces in 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. 

Prince Edward’s attorneys point to the fact that same part of the Virginia Code states, “the governing body, the landowner, and the applicant before the board of zoning appeals shall be necessary parties to the proceedings in the circuit court.” Since the Prince Edward County Board of Supervisors are the county’s governing body, county attorneys argue, the appeal needed to include them as the defendant, not the zoning board. 

“The Board of Zoning Appeals is a quasi-judicial body,” county attorneys wrote in a April 1 filing. “The Board of Supervisors is a legislative body. The two entities are legally distinct, with legally distinct duties and powers under the law. One is not a misnomer for the other.” 

County attorneys also argued that as a result of the mistake, the case should be dismissed, because the Virginia Supreme Court in 2017 ruled “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, the county attorneys argue. 

They also took issue with the Bowmans’ attorneys’ claim that the Board of Supervisors had been notified they were a party to the case. The appeal was served to Robert Love, Prince Edward’s Director of Planning and Community Development. That was done via email by attorney Bradley Foster from the Farmville law firm of Hawthorne & Hawthorne, which is representing the Bowmans in their appeal. 

Love in turn forwarded the appeal to Prince Edward County Administrator Doug Stanley. 

The problem, the county’s attorneys argue in the April 1 filing, is that “Virginia law does not allow the County or the Board of Supervisors to be served through its Planning Director.” They also argue the appeal does not reference the Board of Supervisors and says it doesn’t identify them in any way as a party to the appeal. 

Arguments heard in Prince Edward

So that’s where we currently stand. On April 9, arguments on the motion to dismiss were heard in the Prince Edward County Circuit Court. In addition to the arguments given previously, county attorneys pointed out that Virginia Code 8.01-300 states how an appeal or lawsuit is supposed to be delivered, in order to notify a county that they are a party. 

The Code states process shall be served, “if the case be against a county, on its county attorney in those counties which have created such a position.” 

Prince Edward County does have a county attorney, Terri Atkins Wilson, and she was not served, they argued. 

And before anyone asks, no, the county taxpayers aren’t footing the bill for this case. Since the county’s the one being sued, their insurance carrier is handling the bill for the defense. 

No final ruling was given during that April 9 hearing. Currently, everyone is waiting for a ruling on the motion to dismiss. If the case is not dismissed, it will proceed to trial. 

Editor’s note: Reporter Nate Pentecost contributed to this article.