BY DEBBIE PAGE
After hearing four hours of testimony on Tuesday, the Mooresville Board of Adjustment delayed final arguments and potentially a decision on the fate of Josh’s Farmer’s Market until January.
As the hearing resumed, business owner Josh Graham’s attorney Rick Yeoman asserted during his questioning of Town Planner Danny Wilson that Josh’s Farmer’s Market fell under a nonconforming use (or an existing land use that was lawful in terms under previous zoning designation) because it never ceased operation for 180 days. Ceasing operations would cause the business to lose its nonconforming status after decades of operating the same business model on Williamson Road before being forced to move.
The business had also maintained utilities throughout the year at both business sites, even though it only operated April through December, Yeoman said.
Wilson testified he had still not examined the permitting process for Josh’s Farmer’s Market that the town used during the decade before the current controversy. That process was governed by the town’s old Unified Development Ordinance. He also questioned its relevance to the violations that occurred at the YMCA property where the business has been operating.
The town planner also noted that the market’s final 120-day season sales permit, which expired July 30, was issued under the recently adopted UDO and had no basis to qualify as a nonconforming use.
Wilson said he told Graham that the business would fit under the retail use category. He could not recall whether he told Graham that he was not a “farmer’s market” as defined in the new UDO, which was approved in February.
Wilson also believed that the previous UDO did not define “farmer’s market” at all.
Yeoman said Graham had no idea “farmer’s market” had been newly defined as individual vendors selling their products at stalls. His client was also unaware that he could apply for an interpretation to be defined as a farmer’s market.
After an objection by Town Attorney Sharon Crawford protesting the relevance of the questioning, Board Chairman James Rupp Jr asked Yeoman about his client’s goal for the hearing.
Yeoman said Graham’s goal was to continue operating at the YMCA for the next two to three years until NCDOT completes its road improvements and will allow him to make his property at the corner of Williamson Road and Sundown Road an accessible lot with permanently constructed facilities that comply with town rules.
Crawford reiterated that the hearing was solely an appeal of the administrative decision to apply violations and fines after Josh’s Farmer’s Market’s temporary use permit ended at the YMCA property. She added that the property’s zoning never permitted the farmer’s market and that this process was not about getting classified as a farmer’s market.
Rupp allowed testimony to continue. Yeoman next questioned the definitions of “farmers market,” especially the words “vendor” and “prepared,” which are not defined in the town’s UDO.
Yeoman noted that Josh’s business model included selling his own products, consigned products, vendors on site, and products purchased and “prepared” from local farmers, with some farming sources stretching to other parts on North Carolina and South Carolina.
Yeoman contended that under the town’s definition, Graham was a farmer’s market, to which Wilson again disagreed.
Board member Jason Overturf then intervened, saying they had not been asked to define farmer’s market in the case before the board and he was not comfortable being asked to do so.
Yeoman next asked Wilson if he had discussed vesting (grandfathering) with Graham. Wilson did not remember but said vesting was not possible under the temporary permits issued at the Williamson Road or YMCA property.
Yeoman then produced a 2021 receipt issued by the town for a 12-month permit for Josh’s Farmer’s Market, designating it a farmer’s market. Wilson said that was a receipt, not a permit.
After Yeoman finished his questioning, Crawford then asked Wilson to describe the process to be a farmer’s market. Wilson detailed the process, which included possible zoning changes and special use permits, concept plans, reviews by most town departments, a traffic impact study, a site plan, looking at infrastructure needs, more reviews, obtaining building permits from the county, getting inspections, and earning a final certificate of occupancy.
Wilson said Graham had not filed paperwork to start this process.
He also noted the zoning issues at the YMCA site, the temporary permit rule limiting a business to 120 days at one site, and Graham’s failure to cease operation and restore the site to its previous state after the temporary permit expired on July 30.
Crawford said that to stay at the YMCA site, Graham would have to go through a rezoning process, which may or may not be granted. Yeoman noted this was not a permanent space for Graham’s business that required rezoning, just a temporary measure to operate until his property can be developed.
Graham was then called to the stand, describing his seven-day-a-week operation as a business that provides locally grown produce and products to the community while providing local vendors with an avenue through which to sell.
“I give the community something they cannot get in chain stores,” he said.
In addition to buying directly from farmers, Graham has 25 to 30 consigners, who pay Graham 25 percent of item sales as a fee. He also produces beef, eggs, lettuces, okra, and heirloom tomatoes. Additionally, vendors rent spaces on the weekends to sell their products.
Graham views himself as a vendor who produces or prepares the products he sells. He also noted that 90 percent of the products he sold were “sourced” by himself.
Graham has operated his business since 1990 in some form but did not incorporate until 2012. He employs 12 full-time and 32 part-time workers and operated at 189 Williamson Road until being forced to move because of NCDOT road improvements in 2021.
He got a one-year permit to operate at the YMCA from the town. Graham said all of his permits, since he started getting them at the request of the town around 2015, were six- to 12-month special permits.
Graham said he did not know a new UDO had been approved until a month afterwards and did not know a farmers market definition had been established that excluded his business model.
Graham said he was told on multiple occasions this year that his business is not a farmer’s market but a retail business. He did not realize this definition was relevant at the time and he was not told he could appeal to get an interpretation of the definition or that rezoning was an option.
Graham said Wilson offered no other options after July 30 when the 120-day permit expired, even though Graham was operating under the same business model that he had for many years.
When Yeoman asked him what he wanted from the hearing, Graham said he simply wanted to continue to operate as an existing business, as he had for three decades, until he could get the Sundown parcel to work as a permanent location.
He noted that people depend on his business, including his family, employees, and customers. Because NCDOT has its own timeline, the Sundown parcel will continue to have access issues that do not have a quick solution.
Under Crawford’s questioning, Graham said that he did not own the property at the YMCA site and operated under a “use” agreement with the YMCA. However, Lowe’s YMCA Executive Director Ashley Morgen was forced to terminate the agreement after Town Manager Randy Hemann emailed her.
Graham also admitted to continuing operation after the permit expired, saying he planned to pay the $500 per day fines until December 31, which was a cheaper option than moving. However, when the town came back a few weeks later with a dozen more violations, each carrying a separate fine, the now $7,000 per day in fines were not sustainable.
When asked if he thought he should be exempt from town rules, Graham said he thought Josh’s Farmer’s Market should be included in the new UDO, not excluded. “The new guidelines for outdoor sales space affected us,” he said. “We have not changed our operation.”
Crawford questioned Graham about the violations regarding signs, outdoor storage, screening, blocking parking and walkways, and other issues cited by the town staff.
Attorney Mark Hamblin next continued questioning of Code Enforcement Officer Rebecca Saunders, asking her why the number of violations rose from two to over a dozen in nine days. Saunders said that at a staff meeting town staff examined pictures and saw more violations.
Hamblin asked about the validity of some violations, noting the buildings were compliant when erected under the permit, that screening some products would inhibit customers’ view, and that other businesses in town also have products or storage in parking places and were not cited.
Saunders said violations were issued after code officer observation or public complaints, but she admitted that no public complaints had come to the town about Josh’s Farmer’s Market on any of these cited issues.
Hamblin also questioned the watershed violation because the town had done no calculations to determine if adding gravel to the market area had exceeded the 50 percent impervious surface requirements.
Under additional questioning, Wilson said Lowe’s YMCA had the burden to prove the added gravel did not violate the watershed rules.
When Hamblin asked if these “violations” had existed since March of 2021 at the market but were never cited until now, Wilson said he would not speculate and that the town was only concerned with violations found after the permit expired.
Assistant Town Attorney Carey Austin began delivering the town’s closing argument, noting that as promised, Graham’s attorneys provided many distractions from the matter at hand: Did violations occur at 170 Joe Knox Drive and were they properly cited by the town?
Austin noted the photographic and testimonial evidence presented of the violations and added that Graham admitted he operated illegally after the permit expired.
Austin conceded Josh’s Farmer’s Market is a wonderful place, but she said it must abide by the rules like every other business. The town staff must enforce the UDO as written, she added.
Rupp then interrupted Austin, saying the time was 6 p.m., that the closing arguments and deliberations were still to come, and that the board members had other obligations.
He asked for a vote to continue the closing arguments and board deliberations to January 17 at 2 p.m. at the Mooresville Town Hall. The vote passed 5-0, after which the meeting was adjourned.