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Vance Monument could be going back up, attorney says
Tuesday, 01 June 2021 16:46
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Following a string of legal defeats, things may look grim to outsiders over an effort by a local history preservation group to save downtown Asheville’s so-called “crown jewel,” the Vance Monument, from deconstruction.

Indeed, under the best-case scenario, not only might the monument not come down permanently, it might go right back up, attorney H. Edward Phillips III, who represents the Society for the Historical Preservation of the 26th North Carolina Troops, told the Daily Planet in a May 25 interview.

The best chance to save the monument, in Phillips’ view, would be for the legal case eventually to go before the state’s highest court, the N.C. Supreme Court, where a favorable decision could result in the monument being rebuilt — likely even better — at the expense of the City of Asheville.

“I’d argue with the court that, look, we still have the pieces left. Let’s reassemble it... They’re (the city’s contractor) not supposed to sell anything, but some of the bricks were (reportedly) sold. That’s wrong... The internal components will probably have to be replaced anyway... It could be an even better monument than what we had....

“If the Supreme Court says this (monument protection) legislation applies to all public property and these groups have standing, then all of a sudden what it does — you might still have to take it down, but it would have to be put back up it in a place of equal prominence.”

Earlier in the interview, Phillips said that, as for providing an update on the Vance Monument’s current status, “to be honest. — so it’s one of those things where the 26th North Carolina has pursued every single legal avenue available to them. The reason they did this is because just six years ago they raised money ($138,447) to restore this monument. A lot of time, money and energy has been torn asunder” by the city’s decision to deconstruct it.

While it is murky, the city claims ownership of the property on which the monument is located, “If it is owned by the state, you can’t do anything (such as destroying it) without the approval of the State Historical Commission,” Phillips said.

Gov. Roy Cooper “knows it (the monument protection law) applies to the state-owned property. 

However, Phillips pointed out, “The General Assembly intended” the monument protection law to make “an object of remembrance on public property also applicable, with limitations on removal. The act (also) appears to apply to political subdivisions of the state,” such as cities and counties. 

“Our motion to the court was for a temporary stay, while the appeal was pending, and we were hoping the court would grant it and/or the city would see” that it should halt deconstruction since it involved property that remains in litigation.

“We don’t think they’ll be successful,” Phillips said. “However, with the Court of Appeals moving forward potentially, we want to see what the court is going to do.

“The case was dismissed. A stay was denied. I get it. 

“What we’re talking about — I understand that people are expressing that they themselves have this emotional trauma caused by this monument… While I might not agree with that sentiment, it doesn’t matter. However, just because there are people with that feeling, it doesn’t mean you should destroy the monument before the court has decided” on the case.

Further, Phillips said, “To me, I believe reasonable people can disagree, but even when you disagree and have higher courts looking at things, it’s the time to put the brakes on. Are they (the City of Asheville) doing this to” so that its constituents will “look at what we’ve done to cause equity, to meet your needs....”

Yet, he noted, “You’ll still have the Supreme Court of the state speak… The definitiveness” of its decision will be revealing. “They could say the monument protection law does not apply to them (the 26th) ... or they could say these groups don’t have standing... But let them make that decision. But let us have a word on this, too.”

Phillips added, “Right now, there’s a big question. When you’re heading on a trajectory to destroy the monument,” as he contends the city is  — “not ‘taking it down,’ but ‘destroying it,’ time becomes essential.

“But nobody has a crystal ball, so I think that’s foolhardy” for the city to destroy the monument as the case to preserve it continues to wind its way through the legal system. “I guess I’m an old-fashioned lawyer, in a certain way,” for believing that.

“On Friday (May 21), the Court of Appeals told us (the 26th) and the city and county that it denies the stay, but we’re giving the time to the city to file a response. If they do file a response, we will” then make another move. 

“Basically, they (the court) are telling the city you can ‘run down the clock’” on the Vance Monument by destroying it before the case for preservation can be decided, Phillips contended.

“For the city, it’s like: ‘We don’t care. We’ll just run down the clock. Of course, we’re not going to make a filing. We’ve already filed a response and that’s sufficient.’

“So now the court will make a ruling, but the question is ... will that ruling be made in time. The City of Asheville has 10 days to respond. The question is, can the deconstruction crew destroy the monument within the days remaining.”

On the bright side from his legal perspective, Phillips said, “I know it will become more and more work as they (the deconstruction crew) get further down” the monyment toward its base.

“Reports in the media have said it will be done in two weeks. Now, they’re saying it will take a month,” he noted on May 25.

“There still are several options, and every single legitimate legal avenue the client wishes to pursue will be pursued.”

However, when pressed for details on the aforementioned statments, Phillips said he did “not want to discuss our legal strategy.”

He added that “I’m using the clock to our advantage. Even if we get clobbered, I’m still going to litigate the fact that the agency has the authority. Their denial of their authority and power resulted in the destruction... The court said ‘no’ to the temporary restraining order, but they didn’t say ‘no’ to everything. So I know they’re thinking about this.”

After a pause, he quipped (striving to abide by today’s political correctness standard): “It’s not over till the large-framed person sings.”

Regarding the City of Asehville, he reitarated that “they choose to do as they will... They do not feel in any way encumbered in any way by the system, because the motion to dismiss was granted, my request for a stay was denied, my request for a temporarty restraining order from the Court of Appeals was denied. So they (the city) feel emboldened. At this point, there’s nothing left,” from the city’s standpoint.

“If they get down to the (monument’s) pedestal, I’m still fighting,” Phillips vowed. “The reassembling” of the monument “needs to be done by skilled preservationists,” if the 26th prevail in the end, 

“It gets more sinister” with the Vance Monument case, he then noted. “It’s the government saying: ‘We know what this is, but the rest of you don’t know what this really means.’

“I assert that if you take anything to an extreme, it’s no longer good or bad, because you make bad decisions from your cloistered view of the world.

“Look to their (the city’s) actions (in the Vance Monument case) and the population needs to judge it for themselves. They (the city) are making a legitimate judgment that the laws don’t apply to them. I think they’re wrong.

“The current body considering it (the case) is the Court of Appeals. My hope is that this case will go to the N.C. Supreme Court…  

“Whether or not the monument protection law” is interpreted to mean that “objects owned by municipalities are covered by that legislation... This is (now) based on a blog,” he quipped.

“If the Court of Appeals puts something in place, they have a duty under court order to protect these pieces, and yes, if they get destroyed while it’s on their (the city’s) watch, it’s their responsibility to pay for it.

“If it does go in our favor, they’d have a duty to preserve the status quo, meaning no more deconstruction

“If the monument protection law is found to be applicable…. the city will be held liable” for destroying the monument.

“It takes strong-willed, intellectually honest, principled people to stand up and say, ‘I’d like to say yes (to continuing with the monument’s destruction), but I can’t, based on my reading of the law....

“What is today’s ‘social justice?’ Every time we move down the road, that needle keeps moving. Where does it end? What is the philosophical conclusion to that? ‘We replace you.’

 “We either are a nation of laws, or we’re not. And if we’re not, then we’re no longer this nation any more,” Phillips said.

“If you come to the conclusion that the founding of this nation was incorrect, faulty, etc., then the nation ceases to exist.”

In concluding, Phillips asserted, “If the monument protection law is found to apply, under Subsection B, if they want to move it (the Vance Monument) on a permanent basis, they have to place it on a site of similar prominence — somewhere else in downtown Asheville... and not at a museum, a cemetery or at the Vance Birthplace.”



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