BY DEBBIE PAGE
The Mooresville Board of Adjustment denied Josh’s Farmers Market owner Josh Graham’s request to override Town Planner Danny Wilson’s imposition of citations on the business.
But Graham claimed a small victory when the board reduced his fines to $200, citing vague wording in the town’s Unified Development Ordinance regarding citation penalties.
After the hearing, Graham said he intends to appeal the ruling to Iredell County Superior Court, especially in light of hundreds of emails and material unearthed in a Freedom of Information Act request to the Town of Mooresville which his legal team received two weeks ago.
Unfortunately, the materials arrived too late to be presented as evidence before the board, Graham said.
Board Chair Jame Rupp Jr. closed testimony at the end of the second hearing on the matter on December 20 and moved closing arguments to Tuesaday.
Graham’s attorney Rick Yeoman attempted to get the emails and other material added to the hearing record — even if the board would not consider them in the ruling — in preparation for the planned appeal. He was concerned the court might not consider them if they are not part of the record.
However, the board voted unanimously to deny the request, telling Yeoman to use that denial as a due process violation of constitutional rights in the Graham’s appeal. Yeoman also entered his objection to the denial in the hearing record.
TOWN CLOSING ARGUMENT
In presenting the town’s final arguments, Assistant Town Attorney Carey Austin reminded the board members that they must base their decision on relevant facts and evidence. The documents and photos proved violations after the market’s 120-day temporary seasonal sales permit, issued on April 1, 2022, expired on July 30, yet the business continued to operate until October 31.
Austin also challenged opposing counsel’s arguments about the temporary seasonal sales permitting ordinance’s ambiguity, the vague definition of farmers market, and the market’s standing as a non-conforming use, which Austin said was not possible for a temporary business.
Austin also said past permit practices of the town under the previous Unified Development Ordinance (UDO) and at the market’s previous location were irrelevant. She also cited an N.C. Supreme Court case that a town cannot be stopped from enforcing its laws, even if a violation was overlooked in the past.
The town’s attorney also claimed that the board had no authority to grant Graham’s request to continue operating at the YMCA property until N.C. Department of Transportation issues are resolved, allowing Graham to build a permanent, UDO-conforming structure on his property at the corner of Williamson and Sundown roads.
GRAHAM’S CLOSING ARGUMENT
Yeoman noted that Graham does not agree with the town on any point associated with this case, and the legal team added stipulations indicating disagreements with various town interpretations, including the definition of “farmers market,” which Yeoman said was essential to their case.
He also argued that the board should not consider the violations without considering the background of Graham’s decades of business operation in Mooresville and how the farmers market designation would change their judgment of the matter.
Yeoman also reminded the board that the town planner, Wilson, did not familiarize himself with the permitting history of Graham’s business, which previously operated on two six-month temporary permits issued each year for his previous Williamson Road location, which was forced to close in 2020 by NCDOT improvements.
Yeoman insisted that Graham’s business should be considered a non-conforming use, saying the UDO does not support the town planner’s interpretation of non-conformity not extending to temporary uses.
Yeoman argued this pre-existing use existed for decades and that nothing about the business itself changed — only the UDO changed, and the Town of Mooresville is taking the position that nothing can be done about it and that no other options existed.
He also argued that the Board of Adjustment has broader discretion than the town admits, that it could rule in a fair, equitable manner that is right in this circumstance to overrule the town planner and allow Graham to operate on the YMCA site until he can build on his property, without damaging the town’s authority to enforce its ordinances.
Yeoman also questioned the town’s insistence that Graham operates a retail business. “What retail business closes three months each year?” he said.
The business fits the farmers market definition, according to Yeoman, because various vendors sell at the market, either on consignment or in person, and Graham “prepares” everything he sells, as the ordinance states, by washing, packaging, and displaying the products.
If the business was defined as a farmers market, the “violations” Graham was cited for would not exist. Yeoman also reiterated that Wilson never told Graham that asking for a farmers market “finding” for his business was an option.
Yeoman added that no one was complaining about the business or its operation. Closing Josh’s Farmers Market “is not something the majority of people want,” he said.
Board Attorney Shawn Copeland said the board could reverse Wilson’s decision in whole or part, affirm it in whole or in part, or modify the decision, based on evidence and the law.
Rupp conceded the vast majority of the community wants Graham’s business to continue but that problems exist in the context of the UDO.
He also commended Graham as an effective, forthright witness who would positively impact any future court proceedings.
However, Rupp still felt the town’s position was correct in the confines with which the board must operate.
Board member Jason Overturf was troubled by the vague UDO language concerning violations and citations. He made a motion, which was seconded, that the board deny Graham’s appeal of the citations but lower the fine amount to $100 for each of the two citations issued by the town staff.
Board member Mike Jones disagreed, wanting the fines to be $100 and $1,400 as cited in the two citation letters.
The board voted 4-1 with Jones dissenting in support of Overturf’s motion.
Rupp then instructed counsel for both sides to meet and write the findings, conclusions, and objections to the board’s decision and to send this documentation to Rupp and Copeland by February 3 to prepare for formal board ratification.
Graham plans to appeal of his case to Iredell County Superior Court. He is also exploring the possibility of building a permanent structure at the YMCA site since the town has so far been unwilling to work with him until his property can be developed.
Though he is forced to sit on “a 4-acre piece of dirt” at this point, Graham said, “I was raised here. I ain’t leaving.”
Graham added the FOIA request emails and internal communications that his legal team received indicate that he has a strong basis to continue the legal fight.