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If preservationists win case, Vance Monument’s rebuild will be costly, attorney says
Thursday, 15 July 2021 22:27
By JOHN NORTH
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If those seeking to preserve the Vance Monument in downtown Asheville win their court battle, the obelisk already disassembled down to its base will be costly for local taxpayers to rebuild to the same quality standards (as required by the State Monument Act), H. Edward Phillips III, attorney for the preservationists, told the Daily Planet in a July 9 interview

What’s more, Phillips said, “It’s a distinct possibility the Vance Monument would have to be reassembled and rebuilt possibly at its original location” on Pack Square in the heart of downtown.

“I can tell you, when they originally restored it in 2013, it was $138,000, plus the conservationists who worked on it donated at least $10,000 in time, if not more. And so it would take that amount — or more — to put it back together and re-restore it. It’s crazy. And when they restored it, it was still standing.”

In beginning the interview with the Daily Planet, Phillips began by noting his frustration with, what to him seems like a pervasive mantra — among those claiming to be social justice advocates— that “everything must be eradicated because it’s somehow evil.”

As a result, he said, “The problem we’ve got (in the Vance Monument legal case) is we’re stuck in this stalemate, which is fine as I asked for this stalemate.

“I don’t understand why some people (Asheville’s city attorneys, who are seeking the demolition of the obelisk) just don’t want to wait, they want action right now, or they’re not satisfied. I think that’s a bad way to do things.”

Phillips’ reference was to a recent decision by the state Court of Appeals ordering the city and Buncombe County to immediately desist in its deconstruction of the monument, as per his request. Phillips is representing the Society for the Historical Preservation of the 26th North Carolina Troops, which is seeking to preserve the Vance Monument.

Asheville City Council, on a recommendation by a special task force it had appointed to make a recommendation on the matter, voted 6-1 on March 23 to remove the Vance Monument, believing that its namesake, Zebulon Baird Vance (1830-1894), was a white supremacist (based on several racially charged quotes attributed to him), owned slaves, served as a Confederate military officer during the Civil War and, in general, was not an individual worthy of being honored in the heart of the city. (The lone negative vote by council was cast by Sandra Kilgore, who is an African-American.)

Conversely, Phillips, in representing the preservationists, contends that the Vance Monument is not a Confederate monument, but rather a remembrance by long-time Asheville benefactor George Pack of his friend Vance, a Weaverville-area native.

(Biltmore House architect Richard Sharp Smith, who succeeded Richard Morris in 1895, designed the Vance Monument, basing it on the Washington Monument.)

Phillips said that Pack gave $2,000 — or two-thirds of the cost — in 1898 (four years after Vance’s death) to build the obelisk to honor the latter’s many civic accomplishments, including twice serving as North Carolina’s governor, serving as a U.S senator, his standing as a prolific writer and a staunch defender of rights of and respect for Jews. “Vance became one of the most influential Southern leaders of the Civil War and postbellum periods,” according to Wikipedia. “As a leader of the ‘New South,’ Vance favored the rapid modernization of the Southern economy, railroad expansion, school construction, and reconciliation with the North.”

Regarding Vance’s most-renowned book, “The Scattered Nation,” Amazon.com, which sells it, states, “This work has been selected by scholars as being culturally important and is part of the knowledge base of civilization as we know it.”

As for the plaintiffs seeking to save the Vance Monument (the Society for the Historical Preservation of the 26th North Carolina Troops), Daily Planet research shows the group’s connection to Vance.

“By the time the ordinance of secession had passed in May 1861, Vance was a captain stationed in Raleigh, commanding a company known as the ‘Rough and Ready Guards,’ part of the Fourteenth North Carolina Regiment. That August (1861), Vance was elected colonel of the Twenty-sixth North Carolina. The Twenty-sixth engaged in the Battle of New Bern in March 1862, where Vance conducted an orderly retreat. Vance also led the Twenty-sixth at Richmond. The Twenty-sixth was ultimately destroyed at the Battle of Gettysburg, losing more than 700 of its original 800 members, though Vance at that time was no longer in military service,” according to Wikipedia.

As for the current status of the Vance Monument case, Phillips added, “You’ve got this case (Winston-Salem case) being argued before the North Carolina Supreme Court” and “that will resolve and settle the law in the state regarding these objects of remembrance.”

His aforementioned reference was to a case involving the United Daughters of the Confederacy, seeking to force Winston-Salem to return the statue of a Confederate soldier to its former post at the corner of Liberty and Fourth streets in downtown Winston-Salem.

“And for me, when I read North Carolina Gen. Stat. S100-2.1, when you read that section of the law, it seems pretty obvious that the General Assembly intended to protect all objects of remembrance on public property… And… under the law, the General Assembly uses very specific wording — and to read the statute where it doesn’t apply to political subdivisions of the state ... is to ignore the language itself.”

Officially, Phillips said, “The statute is named ... Protection of Monuments, Memorials, and Works of Art.”

He then reiterated that the act specifies that “approval is required” to move or destroy “objects of remembrance on public property” in North Carolina — and that that cannot be done “without approval of the North Carolina Historical Commission.”

Regarding so-called “limitations on removal,” he noted that “an object of remembrance located on public property cannot be removed,” except only under certain conditions, and “only if relocated in a location of similar prominence.”

Phillips added, “The act is saying they have to go before the North Carolina Historical Commission — and the city (Asheville) didn’t do that” and instead unilaterally began demolishing the Vance Monument, while an effort to save it was still being litigated.

As for the circumstances where the Vance Monument can be relocated, if Phillips wins the case, he cited the following from the act:

• “When appropriate measures are mandated by the state to preserve the monument”

 • “When necessary for reconstruction or renovation for transportation projects”

He added that the act specifies that is applicable to “state or public property, or a political subdivision of the state.

“Under subsection C, it (the act) doesn’t apply to highway markers set up by the DOT (Department of Transportation), or objects of remembrance owned by a private property that is located on public property….”


The “last exception (where state permission is not needed to move or destroy a monument) is an object of remembrance that a building inspector or similar official deems the structure structurally unsound ....” 

After a pause, Phillips asserted, “Call me crazy, but if you’re mentioning political subdivisions of the state, it seems a logical conclusion that the General Assembly meant for the Monument Protection Act to apply to the political subdivisions of the state because it specifically references public property.

“To read it otherwise does damage to the plain language of the statute. You end up with perverse interpretation of the statute. it’s a force reconstruction of the statute.

Then, rhetorically, he asked, “Why would the state or General Assembly care? 

“Because it is between the private party and the state or the political subdivision and the state,” Phillips said, in answer to his own question. “Anything else, is a forced reading that does harm to the plain language” of the law.

They (City of the Asheville) basically wanted to open up traffic (around the Pack Square Park), but under the June 4 order by the Court of Appeals, I believe they were required to take the extra step of going to the court to ask for permission. They didn’t do that.

“The other way they could have entered into a consent order with me and my clients, but they didn’t do that.

“It’s this whole thought that: ‘We have the absolute right to do anything we want to do’” by the City of Asheville, Phillips said.

“But their ability (power) to freely take any action is limited by (1) the powers granted by the state and the state’s Constitution and (2) requirements of the Monument Protection Act. (3) the limitations placed on their ability to act placed on the city through an order by the court.

“If you have a statue from the General Assembly, then basically what it’s telling you is… this is what has to be done. You can take certain action, but it’s confined to limitations that we’ve established in the law. But in essence the General Assembly has the constitutional authority to limit the powers of the counties and cities,” Phillips said.

After another pause, the attorney added, “It was never my intent to cost the city (of Asheville) any money. My intent was to protect my clients’ rights, while at the same time to ask the city not to take any action on the demolition of the Vance Monument. 

“Instead, the city acted on its perceived authority and, in this instance, the city created its own problem and the court stopped the city from taking further unilateral action. Sovereignty within a republic is constrained by the law because the Constitution, viz a viz enactments by the General Assembly, can constrain if they choose actions by the political subdivisions of a state and the state itself. At the end of the day, you act at your own risk.”

He added, “The situation when broken down is really a lesson in Civics 101. You never really had any debate about it (the pros and cons of keeping the Vance Monument). It was almost like ‘groupthink.’ There was no real debate by people who are learned in the law. Pretty much it was a lopsided argument. The opposition was squelched. The people who are clamoring the most on this issue (to destroy the monument) do not represent the majority’s will on this issue. That is, in fact, supported by polling. The majority of people don’t want these monuments destroyed.” 

Phillips added, “Because these issues are being ‘teed up’ before both adjudicated bodies, you have the distinct possibility that some judges, or justices, may interpret the law like I do. And if that happens, the question then becomes what is the appropriate remedy to resolve the issue in Asheville… The remedy could be reassembling and rededicating the monument. 

“Or, if the city under the law wants to move it elsewhere because they don’t want it to be in Pack Square Park anymore, then the city would be required to move it to a place of similar prominence under the Monument Protection Act. Conceivably, the question would turn on” the question of: 

“Would relocation be possible because are there any other locations  comparable to Pack Square Park in downtown Asheville”? 

Phillips then said, as he mentioned in previous interviews with the Daily Planet, that does not believe Asheville has any prominent locations comparable to the monument’s current site.

The attorney said if the Vance Monument is rebuilt at its current site, it will not be the first time a monument in the United States has been rebuilt on or returned to its original site. Specifically, Phillips said, “I worked on the (Confederate General Nathan Bedford) Forrest case in Memphis (Tenn.) and the (Confederate President) Jefferson Davis Monument from Memphis—  and the equestrian statue of Gen. Forrest will be returned to the new gravesite as the headstone.”

He added, “Everyone thinks it’s so easy to take these things down. This process of deconstructing results in chipping or damaging components. So if you have to put it back up, you’ve got the issue of who’s going to pay for it.”

Regarding the status of his case with the City of Asheville, which is being considered by the state Court of Appeals, Phillips said the “average appeals case in North Carolina takes 15 months. Some can go faster — and some a lot slower.”

As for the situation regarding the storage of the blocks and capstone that the city removed from the Vance Monument, the attorney said, “All I’ve got is a wink and a nod” from Asheville’s city attorneys, in a “trust me — I’m from the government” scenario.

“I think everything is safe and thing’s haven’t been damaged, at least that’s what I hope,” Phillips told the Daily Planet. “But how do I know if (1) these pieces of the monument still exist (2) if all the components of the monument still available and intact and (3) if they haven’t been damaged.

“I think it’d be a great thing for the city to show me the memorial’s parts… and for the city to do an inventory and give me a copy, so that I can confirm that the status quo is actually preserved, as intended by the court’s order,” Phillips said.

Meanwhile, the Daily Planet contacted City Attorney Brad Branham on July 12 — on deadline — and Branham responded by email that he would prefer to scrutinize Phillips’ comments in full in this story after it appears in print — and then provide a response in the next edition of the newspaper.

Following is Branham's statement that was sent to the Daily Planet in response to questions about his reaction to Phillips comments, after reading the story above in full:


The City's position regarding the Vance Monument is straightforward. North Carolin law provides specifically in general statute 100-2.1(c)(3) that the limitation on removal of monuments does not apply when 'an object of remembrance for which a building inspector or similar official has determined poses a threat to public safety because of an unsafe or dangerous condition.'  

"The Asheville City Council, in its legislative authority, has determined that the Vance Monument did, indeed, pose a threat to the public and continues to present a dangerous condition.

"Thereafter, as has occurred throughout the State, the City moved to remove the monument pursuant to this direction and its clear legal authority.

"The suggestion that the City should have continued to wait on a nearly infinite number of legal challenges before commencing the removal efforts ignores the fact that the legal arguments of the N.C. 26th have now been rejected by North Carolina courts on three separate occasions, as well as by the North Carolina Historic Commission.

"Beyond the clear wording of the general statute, the North Carolina Court of Appeals has already rendered its opinion in a similar case from Winston-Salem mentioned by Mr. Philips. In that case, the Court  ruled in favor of a City's position nearly identical to that of Asheville.  
 
"To date, the City's actions have complied with the existing statutory law, the standing decisions of the Court of Appeals, and all decisions of the Court regarding the Vance Monument. This includes pausing removal efforts in response to the most recent direction from the Court. Currently, all components from the monument are being securely stored for the protection of those materials as well as for the public at large."




 



 


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