WILMINGTON — The Board of Adjustment has overturned a zoning violation for a popular business located on Market Street.
The City of Wilmington claimed Biggers Market added live music as a prop without zoning approval. But after an hour-long discussion Thursday, the adjustment board voted 3-2 to deny the city’s position.
The city’s zoning administrator, Kathryn Thurston, said she had received a number of complaints that the farmers’ market and outdoor retail store were hosting outdoor music.
After city staff inspected the site on February 17, 2022, a Wilmington Police Department officer issued a violation four days later. An amended notice was sent April 21, citing the city’s new code, which went into effect December 1, 2021.
The notice stated that live amplified music, added to the existing market, was not listed in the zoning compliance application and did not meet buffer requirements. The breach also highlighted “random” parking issues along residential streets due to the number of customers visiting the market.
Per city code, amplified sound is not permitted within 500 feet of residential neighborhoods, one of which borders the property to the south. Also, by adding the “offsite” use to the property, additional parking requirements are necessary.
“The parking permitted for the site is not sufficient to permit the use of an entertainment venue,” Thurston told the council.
Under General Statue 160D-705 and the city’s land development code, landlords have the right to appeal within 30 days. Matthew Nichols, an attorney working for property owners Aubrey and Joy Rogers, filed an appeal on May 20 denying claims that the property is in breach.
Biggers Market, rebranded in 2021 from Port City Produce, has been hosting live music to supplement its retail business since 2015, Nichols said at Thursday’s meeting. The location is protected by old city code, which did not regulate outdoor music in the regional business district.
“Staff presented this as an addition of incidental use without zoning approval and we would fundamentally disagree,” Nichols said.
He added that Biggers is not considered an event venue as it does not have a permanent stage and does not charge customers to enjoy music, entertainment is rather “incidental” to the product market.
He also argued that the city was trying to apply the new land use planning code to a site plan that had been approved under the old one. The city approved the company’s zoning compliance in June 2021, three months after the company announced its rebranding and move to its current location, 6250 Market St.
“It’s part of their business, part of their model, as a market accessory,” Nichols told BOA members. “It’s a benefit for customers and adds to the environment.”
He also noted that Biggers had never received a noise quote, which Thurston confirmed was true.
“I would say they must have a boosted sound on Market Street with 55,000 cars going by a day,” Nichols said.
Nichols, along with Biggers co-owner Wells Struble, cited examples of other farmers’ markets that feature live music, such as the Wilmington Farmers Market in Tidal Creek. An apartment complex is also adjacent to the Oleander Drive site.
Struble said that in terms of parking, he and his business partners had purchased a parcel adjacent to the market at 6240 Market St. and planned to convert it into an overflow lot.
While the project is ready for construction, permits still need to be approved.
Thurston said four service calls to the property were the result of parking issues and vehicle collisions. Cars line up on Elijah Drive, the residential street next to Market, making it difficult to see when exiting the parking lot.
Charles Stanley, owner of 18 Elijah Drive, testified that his entrance was repeatedly blocked. He also noted that he could hear the music when he was outside, but said “it’s not that loud”.
Most council members seemed more concerned with parking issues than amplified sound, with the exception of Mark Saulnier.
“The city has a real problem with music adjacent to residential neighborhoods,” he said.
Saulnier lives on Wrightsville Avenue and said he hears live music from a pair of nearby businesses sometimes late at night.
“Live music travels,” he said. “I don’t know if you’ve spoken to the neighbors yet, but you should have quiet enjoyment of your property. With live music for six to eight hours a day, what if they don’t like that music or don’t want to hear it? »
Besides Stanley, another person made comments at the public hearing in favor of the deal.
Stephanie Jarvis, who lives in the adjoining neighborhood of Biggers, said Wilmington thrives on small businesses to boost its economy. The company employs local people and supports local farmers where it sources its supplies.
“Biggers is a success story for this community,” Jarvis told the board. “As they evolved as a business, yes, they became what you call an ‘event space’. But I never showed up and had to buy a ticket. But they also became a space family reunion, allowing us to create memories.
She added that local musicians are trying to make a living.
No neighbors objected to the music at the meeting, and several audience members supported Biggers.
“The real problem is not that it’s a change or addition of location, it’s the parking lot and I think the property to the south is working to fix that,” the president said. of the board, Patrick Moore.
He made a motion to rescind the violation, which was approved by a majority of the board. The music can continue at the Biggers Market.
Advice or comments? E-mail amy@localdailymedia.com.
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