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Flag can keep flying
Prosser asserted his previous October 2007 ruling that the Board of Zoning Appeal’s decision was unconstitutional, saying that the display of the American flag is protected under the First Amendment.
In the final order issued in the Clarke County Circuit Court, Prosser stated that “there is an expressive element in conduct relating to flags that is ‘speech’ or expression and thereby protected under the first Amendment … At least to the sufficient degree to cause Clarke County’s height restriction ordinance to burden speech.”
Before erecting the flagpole, Jerry Kirk, U-Store-It owner, requested a copy of the Clarke County Zoning ordinance from director of planning, Charles Johnston. The ordinance prohibited structures over 40 feet in height. Johnston handwrote “No exception for flagpoles” on the document. This was not an approved modification by the Clarke County governing body.
Kirk, who died in 2007, had appealed the Board of Zoning Appeal’s decision on the basis that the flagpole is not a permanent fixture, as it is portable and able to be constructed and reconstructed.
Prosser upheld this in his ruling stating that the flagpole is “moveable and removable at the will of the Petitioners,” because it is not physically embedded into the ground.
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