The fate of a massive 199.35-foot flagpole at Buttermilk Pike Self Storage in Crescent Springs could be determined by the outcome of a court proceeding. The suit was filed by the owner of the property, John Huffman, who constructed the pole last December.
Huffman says he spent more than $160,000 contracting five different engineering firms from across the country to plan, design, construct, and verify other engineers’ work on the flagpole.
According to engineering reports, the flag is built upon a 7-foot-wide and 25-foot-deep concrete and rebar anchor in the ground. Huffman says he wanted to go deeper than necessary to ensure the pole was sitting on solid bedrock.
The base of the flagpole is 36-inches in diameter.
The pole is so tall that it required a permit from the Federal Aviation Administration to declare that it isn’t a hazard to air traffic.
Currently, the pole has three flags flying from it: a 20-by-38-foot American flag at the top, a 15-by-20-foot Kentucky state flag in the middle, and a 10-by-15-foot red flag with the Crescent Springs crest at the bottom.
A video of the flagpole’s construction can be viewed here.
A plaque mounted in front of the pole’s base says the flagpole is dedicated to active-duty military, veterans, first responders, and the freedom that we all enjoy. However, Huffman says the original inspiration to build the pole was his mother-in-law, Dania Alvarez Gish.
“She is from Cuba and was 12 years old when Fidel Castro took over,” Huffman stated in an email to the city. “Over the last 27 years, I have heard so many horror stories about what Fidel did, about communism in Cuba, and how those people have suffered, that I became very proud to live in America.”
“I have become so proud to be an American that I wear an ‘American flag’ shirt 6 days a week, as my uniform,” the letter continues. “My Mother-in-Law is so thankful that she was able to escape Cuba, and she is an inspiration to me and many others.”
Two weeks after the flagpole’s construction, Huffman was notified by the Planning and Development Services of Kenton County (PDS) that the pole was out of compliance with local ordinances. Crescent Springs’s Code of Ordinances limits the height of flagpoles to the zone’s maximum building height.
Huffman’s flagpole is in an IP-1 zone, which limits buildings to 40-feet. That’s one-fifth the height of the flagpole.
Furthermore, PDS asserted that the flagpole was constructed without the required permit. The articles of the code cited by PDS were 14.3 and 14.4 which read:
14.3: Flags or buntings: In residential districts, flags may not display commercial images. When flags are mounted on poles, the maximum pole height is determined by the maximum structure height for that district. Maximum number of flag poles: on residential properties, one; on non-residential properties, two.
14.4: Sign Permit Required for Erection of Signs: Unless a particular sign is exempt from the permit requirement under an explicit provision of this Article or other applicable law, then a permit for such sign is required.
Huffman’s options were to either take the flagpole down, or request a variance from the Crescent Springs Board of Adjustments (BOA) on the limitations of flagpole height.
He appeared before the BOA on June 1, of this year.
The BOA consists of three members, Vince Albanese, who chairs the committee; Tony Hester; and Ron Schierer. At the beginning of the hearing, Albanese emphasized to those in attendance that the issue being presented before the board was about the height of a flagpole, not the American flag flying from it.
“When I read the zoning information, I thought I had a pretty clear picture of what is allowed,” Huffman told the board. “But when the city notified me back in December, I reread it all again and I think it’s vague. I think there’s some conflicting information there.”
Huffman reassured the board that the flagpole was safe, citing the engineering reports he commissioned from the various firms. He claimed that the pole could support 4,000 square feet of flag space, but said he was only flying 1,125-square-feet of flag.
“I really, really tried to over-engineer this and make it as safe as possible,” he said. “It could not be done more safely, a hundred percent, a hundred percent, first-class.”
Huffman then recounted his mother-in-law’s experience with communism being the inspiration for the flag.
The story was received with applause from attendees.
Schierer, who has experience in construction as a corporate building developer, asked Huffman how the issue of a permit never arose throughout the planning and construction of the flagpole.
Schierer: “Your pole manufacturer never asked for a permit either?”
Huffman: “Nope.”
Schierer: “Your crane installer never . . .”
Huffman: “Correct.”
Schierer: “I’ve worked in construction my entire career. I’ve installed flagpoles, I’ve done high-rises, everything we’ve ever done, my contractors always ask, ‘Where’s the permit? Who’s getting the permit? Who’s responsible?’ So, you’re telling us that nobody asked for a permit?”
Huffman: “Correct.”
Since Huffman appeared before the board by himself, there was nobody able to support his claims.
“If I was you and coming here, I would bring that guy with me, say ‘look!’ I looked at the codes, you don’t require one,” Schierer told Huffman. “You’re coming here by yourself, without any support saying that nobody asked you for a permit.”
Huffman explained that he attempted to get one of his engineers to the meeting, but the engineer was unavailable that night. Moreover, Huffman told the BOA that the only permit the engineers told him to get was the one from the FAA about hazards to air traffic.
Schierer replied that the FAA permit says no hazard to air navigation and nothing about permission to build the pole.
In addition to his concerns about the engineers not asking to see a permit, Schierer asked if the pole was insured. When Huffman said it was, Schierer seemed to disbelieve that an insurance company would cover something without seeing a permit from PDS.
“Any time I’ve ever gotten anything insured, they’ve always asked me ‘Where’s the building permit, where’s the drawings?,’” Schierer said. “Because they don’t want to be held liable. The insurance company never asked for a permit?”
“Correct,” Huffman replied.
Huffman then said that he would have to contact his insurance agent to ensure that the pole was indeed covered, but seemed to be under the impression that it was.
“It’s a lot of people building something and nobody asked for a permit,” Schierer said. “It just doesn’t seem feasible.”
Hester, who has 35-years of experience in residential construction, echoed some of Schierer’s concerns saying that PDS has to inspect 3-foot-deep holes to build a deck and compared that experience to the 7-by-25-foot hole Huffman dug for the pole’s anchor.
“I love the flagpole, I think it’s great,” Hester said. “But it’s a matter of: did you go by the book? It’s all about the way it was constructed.”
“I thought I had done everything properly,” Huffman said before the BOA opened the floor to public comment.
Outspoken support for the flagpole, and the flags it’s flying, significantly overwhelms any explicit opposition to it.
Those attending the BOA hearing vehemently supported the flagpole, saying that it is an asset to the community and it should be left as-is.
Kenton County Sheriff Chuck Korzenborn was the first to offer his support. He started his remarks by acknowledging Albanese’s patriotism, and the patriotism of his family then ended by claiming that the pole is safe and not unsightly.
His comments were applauded by the audience.
Former Crescent Springs councilwoman and mayor Claire Moriconi also gave her comments saying that Huffman should receive the variance with the condition that documentation be provided certifying the construction was done by a licensed engineer.
“I can sit at my window, see the flag, and I love it,” Moriconi told RCN. “I love it. It is a beautiful flag. The flag means a lot to me, especially in these terrible times.”
In addition to the vast support from other citizens of Crescent Springs, Huffman submitted numerous letters and emails he had received to the BOA.
“Keep the [SIC] our flag and the flagpole exactly the same! Is nothing sacred?,” said one of the emails.
Another letter came from Congressman Thomas Massie:
“The flagpole and the flags that are flown on it can be clearly seen from my NKY District Office. Visitors to my office, Crescent Springs residents, and others in the surrounding community appreciate seeing the patriotic reminder of the freedoms we are afforded in this great country,” Massie’s letter said.
In an interview with RCN, Massie said that Huffman reached out to him about the situation, which prompted him to take action – adding that he recognizes it is a local issue and that he is only asking for a fair consideration.
“I became convinced he did not mean to skirt the law,” Massie told RCN. “What it looked like to me was they were trying to regulate signs.”
Those in vocal opposition to the flagpole are scarce and hard to find.
At the BOA hearing, only the City of Crescent Springs, through its attorney Mike Baker, spoke against granting the variance.
Baker told the BOA that the city was primarily concerned with the precedent granting the request would set – claiming that businesses in the IP-1 district could feel entitled to building 200-foot-tall signs.
Albanese agreed with Baker and said that it would “open a can-of-worms” he seemingly didn’t want to get into.
The only other voiced opposition to the flag was an email RCN acquired through an open records request submitted to Crescent Springs. The message came from Dan Myers, a citizen of Villa Hills, and was sent to Huffman and the city’s councilmembers.
In the message – which had a .mp3 file attachment of Creedence Clearwater Revival’s song Fortunate Son – Myers explains that he is a 72-year old Army veteran and a retired federal civil servant that has taken, and issued, the federal Oath of Office numerous times starting in 1970.
“I did NOT take an oath to the flag. It is not even mentioned,” his email says. “My oath was to the provisions of the Constitution. The single most fundamental concept in the Constitution is a society governed by ‘the rule of law’ as determined by the representatives selected by the votes. NO CITIZEN HAS THE RIGHT OR AUTHORITY TO VIOLATE that due process. Doing so is the first step toward anarchy. Those who do so are referred to as ‘domestic enemies.’”
“The height of your pole (not the flag) is a violation of the law,” the letter continues. “You sir are a domestic enemy. Period. Full Stop.”
“Anybody can wave a flag, get a feel good emotional buzz about it and still be clueless what it stands for,” another part of the message said. “The term for that behavior is ‘jingoism.’”
Huffman said he was shocked when he read the letter.
“I’ve never been called a domestic enemy,” he said. “There are rules, follow the rules. My point is that I thought I was following the rules.”
In an interview with RCN, Myers explained that he had been watching television and was seeing Congresswoman Liz Cheney talk about the importance of the rule-of-law to our nation’s democracy. He admitted that he may have been a little “riled up” while writing his email and clarified what he meant by domestic enemy.
“The person that believes that he is above the law is a domestic enemy,” he said.
Despite the thorough support displayed and submitted throughout the BOA hearing, Huffman’s request was denied in a two-to-one vote, with Hester being the only vote in favor.
Albanese once again explained that the issue wasn’t the flag, but rather the height of the pole – adding how he thought the flag was beautiful, but proper procedures hadn’t been followed.
Huffman’s options were to take the pole down, or take the issue to circuit court.
His attorney, Todd McMurtry, filed a complaint to appeal the board’s decision on July 1.
The city has until August 9 to reply.
The complaint contains four counts which aim to reverse the BOA’s decision and was filed against Crescent Springs and the three members appointed to the BOA.
The counts are:
- The City’s Sign Ordinance is void for vagueness and unconstitutional.
- The City’s Sign Ordinance is arbitrary and unconstitutional.
- Plaintiffs did not willfully violate the City’s Sign Ordinance and therefore the BOA’s decision lacks substantial evidentiary support and is arbitrary.
- The BOA’s members were not trained according to Kentucky law and their decision should be vacated.
The first count argues that Huffman didn’t need to obtain a permit to build the pole because the ordinance that establishes this need is titled Sign Ordinances.
“The average ‘man on the street’ would not expect to find a regulation concerning flags under an Ordinance that regulates ‘signs’” the complaint says.
The second count argues that residential properties are exempt from Article 14 of the Code of Ordinances when pertaining to cultural decorations, and that the American flag constitutes a cultural decoration. The inconsistency between residential properties and the commercial properties deems the Code of Ordinances arbitrary and unconstitutional.
The third count argues that because Huffman got a permit from the FAA, and reviewed the city’s ordinances before constructing the flagpole, he did not willfully violate the ordinances. He merely didn’t think the laws applied to his situation.
The filing alludes that because the BOA cited Huffman’s “willful violation” of the ordinance when denying the variance request, and that because the BOA didn’t prove that Huffman’s mistake was willful, the decision should be reversed.
The fourth count argues that the BOA wasn’t properly trained to make a decision on behalf of the city.
Kentucky state law (K.R.S. 147A.027) dictates that members appointed to a BOA must complete at least 4-hours of orientation training either 1-year before appointment or 120-days after, and 8-hours of continuing education every 2-years while serving.
According to documents obtained by McMurtry’s firm and shared with RCN, as of February 17, 2021, Hester has completed none of the required four hours of orientation. The deadline for the orientation was April 7, of last year.
Moreover, Hester has completed none of the required 8-hours of continuing education, although the deadline for those hours is December 8, of this year.
Hester did not respond to questions and Crescent Springs refused to comment on the issue as it’s in litigation.
The court action filed by McMurtry hopes to garner:
- A reversal of the BOA’s decision
- An order declaring the city’s sign ordinance void for vagueness
- An order declaring the BOA’s decision lacked substantial evidence for being willful
- An order vacating the BOA’s decision based on the board’s members failing to meet Kentucky’s continuing education and training requirements
- An order remanding the matter to a duly qualified BOA
- A jury trial on all triable issues
- Costs and attorney’s fees
- Any other relief which the court deems Huffman is entitled to
Huffman has created a GoFundMe campaign to help mitigate the financial stressors he has acquired. The page says that any money received in excess of what’s needed will be used to buy new flags as they wear out.
-Connor Wall, associate editor
Top Photo: John Huffman stands in front of his flagpole
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