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Posted July 11, 2013 | comments Leave a comment

Town's attorneys call farmers market suit baseless

By Alex Bridges

Attorneys for Mount Jackson say a lawsuit over a farmers market lacks merit and are asking a judge to dismiss the complaint.

The owner of the Mount Jackson Farmers Market claims the Town Council and Town Manager Charles Moore forced the business to shut down by requiring a costly upgrade to the parking lot. Town Council earlier this spring refused owner Gerald Forsburg's request for more time before requiring the lot be ungraded.

Strasburg attorney David H.N. Bean filed a complaint last month in the Shenandoah County Circuit Court on behalf of Gerald Forsburg and the business, identified as 5973 South Main St. LLC. The complaint names Town Council and Moore as defendants.

Mount Jackson procured the legal assistance of Winchester attorney Robert T. Mitchell Jr. who, last week, filed papers, including a motion to dismiss the case, in response to Forsburg's complaint. Town Attorney Douglas C. Arthur serves as co-counsel to the town.

In an answer to the complaint filed July 3, the defense denies the plaintiff's claims.

Judge Dennis L. Hupp held a pretrial conference Thursday. Hupp scheduled another hearing in the case for Aug. 8.

The defense motion to dismiss the case claims that a limited liability company can sue in its own name. However, 5973 South King St. LLC lost its status as a limited liability company on Oct. 31, 2012, the motion states and cites records with the Virginia State Corporation Commission.

Likewise, according to the defense motion, 5973 South King St. LLC does not own the property involved in the case.

The complaint states that the plaintiffs bought the unoccupied building in downtown Mount Jackson approximately two years ago with the intention of repairing and improving the property and surroundings. The new owners planned to turn the building into a market and craft location by renting space to others and using some of the premises for offices.

The building lies on property in the business-zoning district. Local ordinances allow farmers markets in the business zone with a special-use permit, according to the complaint.

The plaintiff operated a farmers market on part of the parking lot in the summer of 2012. The complaint states the operators planned to continue running the market this summer and had arranged for vendors to participate.

The complaint describes the parking lot as hard-surfaced with gravel suited for drainage that served its purpose for many years. A bad economy slowed plans to improve the building and the parking lot, the complaint states.

The town manager and Town Council notified the owners in the spring they would need to fix and improve the parking lot by constructing a hard surface from asphalt and/or concrete, according to the complaint.

The plaintiff sought an extension of the use of the farmers market for the summer of 2013. Town Council denied the request "based on their reading/interpretation of the applicable Town ordinance, as requiring an asphalt surface," the complaint states.

"No issue of public health, safety or welfare is alleged as a basis for requiring a new hard surface on the lot in question," the complaint states. "Apparently aesthetics is the reason for requiring an 'upgrade' in the surface area."

As a result of council's action, the plaintiff canceled arrangements for vendors to sell products at the market this summer. The plaintiff lost anticipated revenue and a years' growth in the process, according to the complaint.

The plaintiff asked the court to declare that the plaintiffs can operate the farmers market on the premises without interference by the defendants; that the existing hard surface falls within a reasonable interpretation of the town ordinance; and to void any narrow reading of the regulation.

The plaintiff also asked the court to issue a permanent injunction to forbid the town from requiring him to upgrade the parking lot to asphalt or similar material, and is seeking reimbursement for legal fees and income lost by losing the ability to use the parking lot.

The defense argues that the case claims no basis for an award of attorney's fees. As such, the defense asks the court to dismiss the plaintiff's request for reimbursement of those fees.

Contact staff writer Alex Bridges at 540-465-5137 ext. 125, or abridges@nvdaily.com


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