Ex-Market Owner Files Suit Against Town

Mount Jackson Man Claims ‘Arbitrary Enforcement’ Of Codes Kept Him From Operating

Posted: June 17, 2013

The former owner of the Mount Jackson Farmers Market has filed a lawsuit against the town to challenge what he called an “arbitrary enforcement” of town codes. The position of the town, he claimed, prevented him from operating the market this year.


Gerald Forsburg, of Mount Jackson, filed the suit in Shenandoah County Circuit Court last week, naming both the Town of Mount Jackson and Town Manager Charlie Moore as defendants.


Forsburg and his wife Tara operated a farmers market for the first season last year out of the parking lot of the former Farm Bureau building on South King Street. The Forsburgs purchased the building about two years ago.


The couple operated the market under permission of a special use permit. That permit was extended by the Town Council in April with the stipulation that the building’s parking lot, now gravel, be paved to comply with town codes. The deadline to complete the paving project was July 1.


Forsburg announced in mid-April that the market would not open for a second season because the cost to complete the project by that date was too high.


He estimated the expense would range anywhere from $20,000 to $35,000.


Councilman Todd Holtzman said in an April newspaper interview that every Mount Jackson business must comply with the same zoning laws.


“What it boils down to is what we do for one applicant we have to do fairly for another,” he said.


However, Forsburg claims in his suit that council members have narrowly interpreted the ordinance to mean that the parking lot must be paved with a substance such as asphalt.


“The parking lot had been used for many years for entry and exit and a place to park vehicles while their owners utilized the facilities in and around the building,” read the suit.


Forsburg contends that the gravel lot meets the “hard surface” requirement.


“No issue of public health, safety or welfare is alleged as a basis for requiring a new hard surface on the lot. Apparently aesthetics is the reason for the required “upgrade” in the surface area,” it read. “The existing hard surface is more than adequate for the intended use of the parking lot.”


David Bean, attorney for Forsburg, said Wednesday that a new gravel lot beside the South King Street building in question is used by a business for garbage pickup.


“I’m very curious as to why a town lot that is used for garbage pickup right next to his place of business is permitted [to use gravel] and [Forsburg] is supposed to work something out with asphalt,” he said. “That seems like a rather arbitrary distinction.”


In the lawsuit, Forsburg asks for reimbursement for legal fees and the money lost as a result of the loss of the beginning of the market season, as well as permission to start the market immediately after payment of the special use permit fee.


Bean said the damages would likely amount to a few thousand dollars.


“We’re really disheartened that we were forced to take it to this level,” said Forsburg. “But the arbitrary enforcement of the codes left us no alternative.”


Mount Jackson Town Attorney Doug Arthur had no comment on the case last week as he had not yet been served with the suit.


Contact Kaitlin Mayhew at 574-6290 or kmayhew@dnronline.com

NDN Video News