By Joe Beck
The Mount Jackson Farmers' Market will stay closed for the foreseeable future after a judge Thursday scrapped a challenge to a zoning law that town officials say requires the market to operate with an asphalt or concrete parking lot.
Shenandoah County Circuit Judge Dennis L. Hupp agreed with town officials and added that he was in no position to overturn a legislative decision by the town council.
The market's co-owner, Gerald Forsburg, filed a lawsuit in early June challenging the town's interpretation of the ordinance. The market never opened this year after Town Manager Charles Draper decided Forsburg had failed to meet a council requirement that the market have a paved, hard-surface lot this year.
The market had been operating with a crushed rock and gravel lot. The market did not open this summer.
Forsburg, through his attorney, David H.N. Bean, who has a law office in Mount Olive, had sought a permanent injunction that would prevent the town from requiring him to pave the parking lot.
In an interview after Thursday's hearing, Forsburg said he could not afford the expense of paving the parking lot that has served his business well since it opened two summers ago. Loans for such projects are much harder to obtain now than six or seven years ago, Forsburg said.
"The town council should understand that if they want economic development," Forsburg said.
Robert Mitchell, the Winchester attorney hired to defend the town against the lawsuit, argued that the requirements of the special use permit under which the farmers' market had been operating was explicit in requiring a paved surface. Mitchell asked Hupp to grant his motion for a dismissal of the suit.
Forsburg had admitted that he was not in compliance with the special use permit, Mitchell said.
"There is no material fact in dispute here," Mitchell said.
Beane said the town was singling out the farmers' market for rigid enforcement not applied to other businesses.
"Many other businesses in town, which includes the town lot, which is adjacent to this lot, are covered with gravel," Beane told Hupp, adding that he saw "no logical reason" for discrimination against the farmers' market.
Hupp ruled from the bench that Forsburg had "acknowledged that the lot he uses is not a hard surface lot as defined in the ordinance."
"It's a reasonable condition," Hupp added of the requirement that the lot be paved.
Hupp said the council had acted within its authority as a legislative body in requiring the paved parking lot.
"This is not a situation where the court can substitute its judgment for the town council," Hupp said.
Forsburg and Beane said afterward they were unsure whether they would appeal the decision.
Contact staff writer Joe Beck at 540-465-5137 ext. 142, or firstname.lastname@example.org