What rules limit a Virginia locality's authority to remove or relocate a war or veterans monument on its property?

Plain-English summary

The Director of the Virginia Department of Historic Resources asked the Attorney General to map out how Code § 15.2-1812 and other legal restrictions limit a locality's authority to remove or relocate a war or veterans monument from property the locality owns or controls. The opinion was issued in August 2017, weeks after the Charlottesville rally and at a high-tension moment for Confederate monuments in Virginia.

The AG identified three categories of restrictions a locality must check. First, Code § 15.2-1812 itself: it prohibits removal or disturbance of war and veterans monuments, but only prospectively, and the statute's language and reach changed substantially over a century of amendments. Citing the longstanding rule that statutes operate prospectively unless retroactive intent is clear, and the Danville circuit court's 2015 decision in Heritage Preservation Ass'n v. City of Danville, the AG concluded that § 15.2-1812 does not apply to monuments erected within an independent city before 1997, or to monuments erected on property other than the "public square" of a county before that year. Monuments erected before 1904 (the date of the statute's first ancestor) fall outside the statute entirely. Second, many Confederate and Civil War monuments owe their existence to specific Acts of Assembly, like an 1890 Alexandria enactment and a wave of 1902-1904 Acts authorizing monuments in Mecklenburg, Greensville, Botetourt, Bedford, Campbell, Amelia, and King William counties. Each Act has its own language about disturbance, and a locality has to investigate the specific Act that may govern its monument. Third, individual monuments may carry restrictions from their donation instruments (reversionary clauses) or from grant agreements like a National Historic Preservation Act Preservation Agreement, which can include restrictive covenants recorded on the land.

The opinion was a detective-work guide: in 2017, with the pre-2020 version of the statute, removing or relocating a Civil War monument required careful fact-finding on a monument-by-monument basis.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In particular, note that Code § 15.2-1812 was substantially rewritten by the General Assembly in 2020 to authorize localities to remove, relocate, contextualize, or cover war monuments after following a public-notice and hearing process. The opinion's discussion of prospective-only application of the prior statute should be understood as historical analysis of the pre-2020 framework.

Background and statutory framework

The statute now codified at Code § 15.2-1812 traces back to 1904, when the General Assembly authorized the circuit court of a county, with the concurrence of the board of supervisors, to allow "the erection of a Confederate monument upon the public square of such county at the county seat thereof." Once erected, the monument could not be disturbed. From there, a century of amendments expanded the statute outward: the 1910 amendments added county financing power; 1930 broadened "Confederate" to include "World War" monuments; 1945 added the Spanish-American War and World War II; 1982 added Korea and Vietnam; 1988 added the Revolutionary War, the War of 1812, and the Mexican War. A 1997 recodification (the "Code of 1997") replaced "county" with "locality" (extending the statute to independent cities), expanded the protected location to "any" of the locality's property, and changed the list of conflicts. A 1998 amendment further broadened the statute and added a definition of "disturb or interfere" that explicitly covered placement of Union markings on Confederate memorials and vice versa.

The opinion's core legal move is the rule of prospective application. Statutes "are construed to operate prospectively only, unless, on the face of the instrument or enactment, the contrary intention is manifest beyond reasonable question." Arey v. Lindsey (1904). The General Assembly considered making § 15.2-1812 retroactive in 2016 (House Bill 587) but the Governor vetoed it and the override failed. That history confirms that the General Assembly knows how to make the statute retroactive when it wants to, and has chosen not to. The Danville Circuit Court applied that reasoning in Heritage Preservation Ass'n v. City of Danville (2015), holding that § 15.2-1812 does not apply to monuments erected within an independent city before 1997. The Supreme Court of Virginia declined to grant a writ in that case.

The opinion notes that even if § 15.2-1812 does not apply, other legal threads can still constrain a locality. Specific Acts of Assembly authorize many of the late-19th and early-20th-century monuments and often impose disturbance restrictions in their own text. Donations to localities can include reversionary clauses that trigger if the locality moves the monument, and the Virginia Supreme Court has held those clauses enforceable (Commonwealth Transp. Comm'r v. Windsor Indus., 272 Va. 64 (2006)). Federal grant programs (like the National Historic Preservation Act) require Preservation Agreements and often restrictive covenants. Anyone evaluating a particular monument has to track all four threads.

Common questions

Does Code § 15.2-1812 apply to every war monument in Virginia?
No. Under the version of the statute analyzed in this opinion, the AG concluded the statute does not apply to monuments erected before 1904 at all; does not apply to monuments in independent cities erected before 1997; does not apply to monuments erected on property other than the "public square" of a county before 1997; and applies only to monuments for wars, conflicts, or war veterans.

What is the "public square" for purposes of the pre-1997 statute?
The opinion notes that "public square" was not defined in the Code. A number of older enactments used the term to mean the area of land where the county courthouse, clerk's office, and other official county buildings were located.

What is the significance of the 2016 House Bill 587 veto?
HB 587 would have amended § 15.2-1812 to apply retroactively to all war monuments regardless of when erected. Governor McAuliffe vetoed it on March 10, 2016, and the override failed. The AG used this history to confirm that the General Assembly had not intended the statute to operate retroactively.

Why are individual Acts of Assembly so important?
Many specific monuments were authorized and protected by their own enabling Acts long before the general statute existed. For example, the 1890 Alexandria enactment is one of the oldest; a wave of 1902-1904 Acts covered Mecklenburg, Greensville, Botetourt, Bedford, Campbell, Amelia, and King William counties. Some Acts forbid disturbance; others are silent. A locality cannot just look at the general statute; it has to find the specific Act, if any, that authorized its monument.

What if a private group donated a monument to the locality?
The donation deed can include reversionary clauses, conditions, or restrictions. If the locality moves the monument and triggers a reversion, the monument may revert to the donor or the donor's successors. The opinion warns localities to look at the original donation instrument before deciding to relocate.

What about federal preservation grant agreements?
A locality that accepted federal preservation grants under the National Historic Preservation Act usually signed a Preservation Agreement that imposes preservation duties on the recipient and often includes recorded restrictive covenants on the land. Moving a monument in violation of those obligations can mean grant clawback or legal liability under the federal program.

Does this opinion say localities cannot remove monuments?
No. The opinion does not give a yes-or-no answer for any particular monument. It maps out the four legal threads a locality has to check (general statute, special Act, donation terms, grant agreements). If all four are clean, the locality has authority. If any one of them imposes restrictions, the locality has to deal with that restriction first.

Citations

• Va. Code § 15.2-1812 (pre-2020 version)
• 1904 Va. Acts ch. 29 (original ancestor of statute)
• Arey v. Lindsey, 103 Va. 250 (1904) (prospective application of statutes)
• Bailey v. Spangler, 289 Va. 353 (2015) (no retroactive application without express intent)
• Heritage Preservation Ass'n, Inc. v. City of Danville, Case No. CL15000500-00 (Cir. Ct. Danville Dec. 7, 2015)
• Tabler v. Bd. of Supervisors, 221 Va. 200 (1980) (legislative intent from rejected bills)
• Commonwealth Transp. Comm'r v. Windsor Indus., 272 Va. 64 (2006) (reversionary clauses enforceable)
• 54 U.S.C. § 302902(b)(1)(C) (National Historic Preservation Act grant administration)
• 2 A.E. Dick Howard, Commentaries on the Constitution of Virginia (1974)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2017/17-032-Langan---Monuments---Issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

August 25, 2017

Julie Langan
Director, Virginia Department of Historic Resources
2801 Kensington Avenue
Richmond, Virginia 23221

Dear Ms. Langan:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of
the Code of Virginia.

Issue Presented
You have asked how the provisions of § 15.2-1812 of the Code of Virginia, or other legal
restrictions, may impact the authority of a locality to remove or relocate war or veterans monuments on
property owned or controlled by the locality.

Applicable Law and Discussion

A number of factors may impact a locality's ability to remove or relocate a war or veterans
monument, and each likely presents a unique circumstance that would require careful analysis to
determine which, if any, might limit local authority. Without regard to their application in an individual
case, there are three categories of legal restrictions that may affect the authority of a local government.
First, discussed more fully below, is the application of § 15.2-1812 of the Code of Virginia to the
particular monument. Second, a number of monuments are subject to individual Acts of Assembly
governing their construction and maintenance. Finally, some monuments may be subject to restrictions
found in instruments transferring ownership of the monument to the locality or local governmental entity
or restrictions imposed as a result of subsequent actions of the locality. A careful investigation of the
circumstances surrounding the individual monument must be completed by the locality to determine
which legal restrictions may apply.[1]

1. Code § 15.2-1812

a. History of the Code Section
The historical antecedent to this Code section first appeared as Section 2742 of the Code of
Virginia. By an act of the General Assembly passed in February 1904, the circuit court of a county, with
the concurrence of the county's board of supervisors, could authorize "the erection of a Confederate
monument upon the public square of such county at the county seat thereof."[2] Once such a monument
was "so erected," the statute provided that "thereafter" the locality "or any other person or persons
whatever" could not "disturb or interfere" with the monument, or "prevent the citizens of [the] county
from taking all proper measures and exercising all proper means for the protection, preservation, and care
of the same."[3]

The General Assembly subsequently enacted a number of changes to this statute. In 1910, it
added the ability of a county's board of supervisors to appropriate funds "to complete or aid in the
erection of a monument to the Confederate soldiers of such county," and the ability of the board to
impose a special levy for these purposes, or to assist private persons, Confederate veterans, or other
organizations in building such a monument.[4] The amendment also specified that a county could finance a
monument to be placed either upon the "public square" or "elsewhere at the county seat," but it did not
similarly expand the protective language contained in the first paragraph of the statute.[5] In 1930, the
statute was amended to include monuments to the "World War," as well as a change in terminology from
"soldiers" to "veterans" in the section concerning funding.[6] Near the end of World War II, the reference
became to a "monument or memorial" and the General Assembly included two additional conflicts, the
Spanish-American War and World War II.[7] In 1982, it added the "Korean War and Viet Nam War"[8] to
the list, and made certain non-substantive grammatical changes to the statute.[9]

In 1988, the General Assembly added three additional conflicts (the Revolutionary War, War of
1812, and Mexican War) and also changed the protective language from "if such shall be erected it shall
not be lawful thereafter" to disturb or interfere with the monument or memorial, to "[i]f such are erected,
it shall be unlawful" to disturb or interfere with the same.[10] Other non-substantive grammatical changes
appear in this Act as well.

During a recodification of Code provisions pertaining to local governments in 1997, the General
Assembly made several notable changes to this Code section. First, it now applied to any "locality," not
just a county.[11] It also moved the list of conflicts encompassed to a different section of the Code (former
§ 2.1-21),[12] which expanded the list, and it applied protections to "monuments or memorials for any war
or engagement" therein. It further provided that the monument or memorial could be placed on "any" of
the locality's property and receive the protections of the statute.[13] It otherwise simplified the language
used in the section, but did not alter the prospective phrasing ("[i]f such are erected") of the statute's
protection.

A year later, the General Assembly broadened the scope of the statute considerably by permitting
localities to authorize the erection of "monuments or memorials for any war or conflict, or ... any
engagement of such war or conflict."[14] It returned the list of conflicts to the statute (as expanded in
accordance with § 2.1-21),[15] but the list now served only to provide well-known examples of covered
conflicts. The General Assembly also expanded the locality's authority to authorize or permit such
monuments to the "geographical limits" of the locality, not just the locality's own property.[16] Finally, it
added a definition of "disturb or interfere" to include "placement of Union markings or monuments on
previously designated Confederate memorials or the placement of Confederate markings or monuments
on previously designated Union memorials."[17] Revisions in 2005 and 2010 added specific wars or
conflicts to the list in the statute, but otherwise did not alter its language.[18]

b. Impact of § 15.2-1812
In evaluating the impact of this Code section, it should be noted that the longstanding rule in
Virginia is that statutes "are construed to operate prospectively only, unless, on the face of the instrument
or enactment, the contrary intention is manifest beyond reasonable question."[19] "The general rule is that
no statute, however positive in its terms, is to be construed as designed to interfere with existing
contracts, rights of action, or suits, and especially vested rights, unless the intention that it shall so operate
is expressly declared."[20] When the General Assembly omits a clear manifestation of intent that a statutory
change should apply retroactively, it generally should be concluded that the legislature did not intend such
an application.[21] Additionally, "[i]n determining legislative intent," Virginia courts look "both to
legislation adopted and bills rejected by the General Assembly."[22] This includes House Bill 587 from the
2016 session of the General Assembly that would have expressly made § 15.2-1812 apply retroactively by
inserting language providing that "[t]he provisions of this subsection shall apply to all such monuments
and memorials, regardless of when erected." Governor McAuliffe vetoed the legislation on March 10,
2016, and the General Assembly failed to override the veto.[23]

Coupled with the decidedly prospective language chosen by the General Assembly in the
statutory text, applying these rules of construction to the multitude of amendments to the Code section
over the years shows that while it does apply to some monuments, there is a range of potential outcomes
for individual monuments. First, the Code section does not apply to any monument or memorial
constructed prior to 1904. The Circuit Court of Danville ruled in Heritage Preservation Association, Inc.
v. City of Danville that it does not apply to any monument or memorial erected within an independent city
prior to 1997.[24] Nor does it apply to a monument or memorial erected on any property other than the
"public square"[25] at the county seat before the same year. Finally, the statute applies only to monuments
or memorials for wars or conflicts or "war veterans."[26]

2. Individual Enactments of the General Assembly
   Putting aside the impact of § 15.2-1812 of the Code of Virginia, a large number of monuments
   around the Commonwealth owe their existence to specific Acts of the General Assembly. For example, a
   monument erected in the City of Alexandria is subject to the provisions of Chapter 119 of the 1890 Acts
   of Assembly. In 1903, the General Assembly specifically authorized construction of Confederate
   monuments on the public squares of Mecklenburg,[27] Greensville,[28] Botetourt,[29] Bedford,[30] Campbell,[31]
   Amelia,[32] and King William[33] counties. Some of these Acts contain restrictions on the disturbance of the
   monument, others are silent, and in the case of King William, one Act contains such a restriction and a
   related Act does not.[34] Several other such enactments are found within the Acts of Assembly, both
   predating[35] and postdating[36] the 1904 passage of what is now § 15.2-1812.

Each jurisdiction, therefore, may find itself in a unique situation as a result of a particular Act of
Assembly. The list set forth above is not exhaustive, and any locality evaluating the potential restrictions
on its ability to remove or relocate a war or veterans memorial must research whether an individual Act
may govern the situation presented.

3. Other Legal Constraints
   In addition to the enactments of the General Assembly discussed above, other legal constraints
   might limit the ability of a locality to remove or relocate a war or veterans monument. For example, a
   monument may have been donated to the locality subject to reversionary terms or conditions in the
   transfer instrument triggered by the locality's attempt to remove or disturb the monument.[37] Or, the
   locality might have received funding for the acquisition, maintenance, preservation or enhancement of the
   monument through a grant program that places restrictions on any alteration of the monument. As an
   example, a grant received under the National Historic Preservation Act likely includes a Preservation
   Agreement[38] imposing certain restrictions on the receiving party, and likely would require recordation of
   restrictive covenants on the property on which the monument is located. Again, the specific
   circumstances of each monument must be investigated thoroughly to determine what restrictions may
   apply.

Conclusion
In my opinion, local governments must consider a number of potential restrictions that may apply
to removal or relocation of a war or veterans monument as a function of general law, special Act of
Assembly, or other limitations such as those imposed upon the donation or conveyance of the monument
or limitations arising from participation in a preservation or funding program by action of the locality.
Depending on when the monument was erected and where it is located, § 15.2-1812 of the Code of
Virginia may or may not prohibit the locality from such actions. Careful investigation of the history and
facts concerning a particular monument in a given locality should be completed to determine what, if any,
restrictions might apply.
With kindest regards, I am
Very truly yours,

Mark R. Herring
Attorney General

[1] Nothing contained herein should be construed to evaluate or opine upon removal or relocation of monuments located upon state or federal property.

[2] 1904 Va. Acts ch. 29.

[3] Id.

[4] 1910 Va. Acts ch. 17.

[5] Id.

[6] 1930 Va. Acts ch. 76.

[7] 1945 Va. Acts ch. 55.

[8] 1982 Va. Acts ch. 19. By the time of this amendment, the statute had been recodified twice, first as § 15-696 and then as § 15.1-270 of the Code of Virginia. In 1962, when the statute was recodified as § 15.1-270, the General Assembly replaced the term "board of supervisors" with "the governing body" of the county. 1962 Va. Acts ch. 623.

[9] Non-substantive grammatical changes also appear in the 1910, 1930, 1945, and 1962 amendments to the statute.

[10] 1988 Va. Acts ch. 284.

[11] 1997 Va. Acts ch. 587.

[12] In particular, it expanded the list by replacing the term "Confederate ... monuments and memorials" with monuments and memorials to the "War Between the States." It also added the following wars: Indian Uprising [Algonquin War], French and Indian Wars, and Operation Desert Shield-Desert Storm. See 1997 Va. Acts ch. 587 and former VA. CODE ANN. § 2.1-21 (1993) (codified in current form at § 2.2-3300).

[13] 1997 Va. Acts ch. 587.

[14] 1998 Va. Acts ch. 752.

[15] The amendment also made specific mention of "Confederate or Union monuments or memorials of the War Between the States." Id. (emphasis added).

[16] Id.

[17] Id.

[18] 2005 Va. Acts ch. 390 (adding Operation Iraqi Freedom); 2010 Va. Acts ch. 860 (adding the Global War on Terrorism and Operation Enduring Freedom).
With respect to the history of § 15.2-1812 outlined above, certain substantive amendments not relevant herein have been omitted, but may be found by reference to the cited Acts of Assembly.

[19] Arey v. Lindsey, 103 Va. 250, 252 (1904).

[20] Bailey v. Spangler, 289 Va. 353, 359 (2015) (quotation marks and citation omitted).

[21] Id. ("It is reasonable to conclude that the failure to express an intention to make a statute retroactive evidences a lack of such intention.") (quotation marks and citation omitted).

[22] Tabler v. Bd. of Supervisors, 221 Va. 200, 202 (1980).

[23] See 2016 Session: HB 587 Memorials and Monuments; protection of all memorials, etc., Virginia's Legislative Information System, available at http://lis.virginia.gov/cgi-bin/legp604.exe?161+sum+HB587 (last visited August 21, 2017).

[24] Case No. CL15000500-00 (Dec. 7, 2015). The Supreme Court of Virginia declined to grant a writ in the case (Record No. 160310), both on initial petition (June 17, 2016) and on a request for rehearing (October 7, 2016).

[25] No definition of "public square" appears in the current Code, nor apparently historically within the Code. A number of older enactments refer to a public square as an area of land where the county courthouse, clerk's office and other official county buildings were located. See, e.g., 1890 Va. Acts ch. 632 (describing laying out a public square for the new county seat of Wise County).

[26] For example, this Office previously opined that the protections of the current Code section do not extend to "memorials or markers erected to recognize the historical significance of buildings." 2015 Op. Va. Att'y Gen. 120, 123.

[27] 1902-1904 Va. Acts ch. 465.

[28] 1902-1904 Va. Acts ch. 307.

[29] 1902-1904 Va. Acts ch. 130.

[30] 1902-1904 Va. Acts ch. 116.

[31] 1902-1904 Va. Acts ch. 117.

[32] 1902-1904 Va. Acts ch. 83.

[33] 1902-1904 Va. Acts ch. 58.

[34] Chapter 58 contains a restriction against disturbance or interference, see 1902-1904 Va. Acts ch. 58; Chapter 61, which authorizes the use of county funds for the monument, does not, see 1902-1904 Va. Acts ch. 61. Both passed the General Assembly on the same date.

[35] See 1897-98 Va. Acts ch. 320 (Rappahannock County); 1897-98 Va. Acts ch. 553 (Orange County).

[36] See 1908 Va. Acts ch. 243 (New Kent County); 1908 Va. Acts ch. 86 (King and Queen County).

[37] The Supreme Court of Virginia has recognized generally that reversionary clauses in deeds to the Commonwealth are enforceable. See Commonwealth Transp. Comm'r v. Windsor Indus., 272 Va. 64 (2006).

[38] 54 U.S.C. § 302902(b)(1)(C) (requiring a grant recipient to maintain and administer the property "in a manner satisfactory to the Secretary"). The Secretary of the Interior, through the National Park Service's Grants Manual, imposes a number of requirements to receive federal funds under the Act, including the necessity of a Preservation Agreement and restrictive covenants.