Few things elicit more passion and emotion than flying a flag of one’s choice. A flag can represent allegiance to a nation (yours or someone else’s), a distinguished career in the military, support for a favorite school or university, or a political statement about a candidate, cause, or social movement. Flags can welcome new babies, celebrate birthdays and anniversaries, and even welcome Spring, but it wasn’t variegated flags that raised hackles when flag size restrictions were proposed in Fairfax County’s Zoning Ordinance Modernization Project (zMOD). It was “Old Glory.” Fairfax County’s current Zoning Ordinance was last overhauled in the late 1970s, and incremental changes have ballooned the ordinance to 1200 or so pages, sometimes with sections that disagree with each other. The new zMOD draft is slightly less than 700 pages, has clarifying photos and diagrams, and is designed to be easily accessible and interactive in an on-line format, something the unwieldy original is not.
The proposed flag language covers just 17 lines of those 700 pages, and quickly provoked outrage about restricting flag size. Some of the more thoughtful comments were from veterans or veteran families, who pointed out that a 40-square foot restriction (a 5×8 flag) would prevent flying the American flag that rests on the casket of a loved one. Those flags, also called “Fallen Hero Flags,” range between 45 and 50 square feet. As the daughter and granddaughter of World War II veterans, I had the same concerns about flag size. Casket flags are treasured and often are preserved in memorial presentation boxes, but should have no restrictions about flying. Other comments, sadly, were not so thoughtful.
Supreme Court cases have ruled that the content (what’s on it – colors, symbols, words) of a flag cannot be subject to restrictions. That’s protected by the First Amendment, so the U.S. flag, flags of other nations, a Black Lives Matter flag, an LGBTQ flag, etc., all have free speech protections. The legal cases have not ruled on size, only content, but there is no discernible support on the Board for size restrictions. Under consideration are the heights of flagpoles – flagpoles are classified as structures, and so can have some requirements as to height and number. A 25-foot flagpole would be permitted in most residential zoning categories, and could be installed without a building permit. A taller pole would need a permit to ensure that it has the proper footings and could withstand severe weather without collapsing onto adjacent properties.
The zMOD project got underway in 2017, and more than 100 public meetings – in-person prior to the pandemic; virtually during the past year–have been held, in addition to on-line video presentations available on the county website. Most of the proposed updates result in simpler language, without changing the legal basics. Accessory Living Units (ALUs) and Home-Based Businesses elicited more interest. Public testimony about zMOD has been varied: some speakers at the Board’s March 9 public hearing wanted greater flexibility, especially for affordable housing; others wanted any changes to be subject to more intense neighborhood scrutiny. Parking appeared to be a major issue, for both accessory living units and home-based businesses. The current Zoning Ordinance has no parking requirement for those uses; the staff recommendation adds one designated off-street parking space to the language.
The Board of Supervisors is scheduled to act on zMOD at its meeting on March 23. Most likely, there will be considerable debate, but flag size will not be on the agenda.
Penny Gross is the Mason District Supervisor, in the Fairfax County Board of Supervisors. She may be emailed at [email protected]