County Attorney Scott Forbes addressed the board, expounding on the legal ramifications of following through with a moratorium.
WADESBORO — Anson County Board of Commissioners picked up where they left off following the six day hold-over from their previous meeting that abruptly ended in adjournment, recessed until Monday, March 25, with discussing the legality of the proposed Peachland Flea Market project slated for land on Faulkner Rd.
Using the intervening time to brush up on moratorium laws and precedent cases whose rulings set the court’s reasoning regarding future cases, County Attorney Scott Forbes manned the podium for the whole of the meeting. He expertly fielded commissioners’ questions surrounding the legalities of enforcing a moratorium on a particular business.
“It is my legal opinion after looking at all of the facts, and relying on another case in this, In re Campsites, moving forward, a moratorium is not going to stop this flea market, in my legal opinion. Nothing gives you the authority to stop or to regulate where a business goes within this realm,” advised Forbes.
To support how he arrived at this legal conclusion, Forbes cited the In re Campsite case which concerned a campsite whose construction began at a time when the county they were building in had no zoning laws in place, similar to Anson County now.
“This does not mean that they [Peachland Flea Market] are not required to have building permits, to make code, and things of that nature,” he cautioned.
Further clarifying his legal stance, he continued, “To enact a moratorium, you would have to find, in a public hearing, a clear statement of the problems or conditions that necessitate a moratorium. [To prevent all] flea markets from coming, I do not believe you meet the requirements for that either, which is what the purpose of a moratorium is,” defined Forbes.
“It is for a type of business or to stop something… this would be for the purpose of stopping a business from coming to a place it has a legal right to come to,” he added.
Touching on the shared traffic concerns of many, Forbes theorized, “If there is a traffic problem out there, it needs to be handled. That is something that came up because people were talking about the narrow seventeen-foot wide road out there. There are also codes… I think there has to be a twenty-foot wide driveway all the way around the facility.”
“I just want to clarify,” interjected Chairman Jamie Caudle, “when we talk about traffic on Faulkner Rd., the county has no authority over the traffic on Faulkner Rd., correct?”
Following Forbes’ affirmative answer, Caudle described a litany of areas under DOT control such as, paving roads, widening roads, and maintaining roads.
“In other words, I don’t have the authority to say there is too much traffic on Green St. out here, right?”
Forbes responded to Caudle, saying, “Limiting the ability to have a business there because of the flow of traffic, I do not see where that would be the county’s responsibility, no.”
Commissioner Lawrence Gatewood hypothesized, “Would a negative report from DOT, could it cause this flea market (to not come)…”
“That would be on them,” stated Forbes. “From my understanding the DOT can stop anything.”
Getting to the heart of the matter, Caudle questioned, “In your legal opinion, have we met the full requirements that if we hold a public hearing, it will hold up to a moratorium?”
Following a brief pause to collect his thoughts, Forbes answered cautiously, “It is my opinion that, from the facts that I have, the concerns expressed, will not satisfy [the needed] criteria.”
Returning to the legal precedent for a moratorium, Forbes explained, “They bought the land based on no zoning, they started working on it with the assumption that there was no zoning, and the assurances that no zoning would be implemented to block them. When the land was purchased they had the legal right to do with the land what they said they were going to do with the land and as far I know they have done it. The grading of the land, they spent money on it, they have changed the land… they have spent their money just like with In re Campsites.”
Forbes, who has toured the construction currently in progress on Faulkner Rd., acknowledged all the hard work and money already spent on the site, with gravel and soil already hauled in, significant grading work, and poured concrete already taking place.
“That would be creating a vested interest in the property,” he simplified.
Certain remedies may yet be found, Lawrence Gatewood, inquired of Forbes the legal definition of a public hearing.
“A public hearing is to ferret out information to make an educational decision on something or reveal more information and for you to establish a public forum for that.”
Bricken remarked, “Because we have not had a public hearing we do not officially have a moratorium in place at this time.”
“You do not have a moratorium. That was an interpretation that I had made that upon further review, I did not have the correct information at that time. Upon further study, you do not have a moratorium in place at this time,” Forbes contritely emphasized.
Interceding in the conversation, Commissioner Robert Mims inserted, “My question would be, if they have a flea market and then there are problems, can we go back and issue [a moratorium] to try and stop it?”
“Like with any business if you have problems like that, you can shut them down in certain circumstances,” answered Forbes.
“There is a public hearing tentatively scheduled for April 16th to be held here in this room,” informed Caudle.
Weighing in from his role as County Manager, Lenn Sossaman explained that following the hearing, an ordinance will be drawn up for the board to adopt, stating the criteria needed to qualify for the implementation of a moratorium that the county has met.
Jokingly declaring the gift of clairvoyance, Commissioner Gatewood described images of, “A carnival taking place out there every Saturday and Sunday on this ten acre site on Faulkner Rd. To your point Mr. Mims, we may have to close it down once it is a nuisance every weekend. That is what I envision.”
Delivering the final word from commissioners on the subject, Bricken emphatically stated, “It was brought up in one of our other meetings that maybe we are not engaged in this process. I’m sure our county attorney can tell you I speak to him almost every day about this. I’m sure if our EMS Department were here they could tell you I speak to them several times a week, the permitting office would tell you the same thing. I go by there every single day.. You know where I live, I go by there every single day and I look at that site,” reminded Bricken.
“In the end, even with a moratorium, I do not see you ending the flea market coming to this area,” cautioned Forbes. “Even if you have a public hearing and you implement it, I do not see that being the end of this. I do not think that it is going to cause the flea market not to come here,” he mournfully predicted.
