Music at the market? BOA overturns city violation regarding entertainment at production stand

The city issued a notice of violation to Biggers Market, saying it was not in zoning compliance. The board of adjustment overturned the violation Thursday. (Courtesy City of Wilmington)

WILMINGTON — The board of adjustment reversed a zoning violation for a popular business located on Market Street.

The City of Wilmington asserted Biggers Market added live music as an accessory use without zoning approval. But after an hour-long discussion Thursday, the board of adjustment voted 3-2 to negate the city’s position.

City zoning administrator Kathryn Thurston explained that she had received a number of complaints that the open-air farmers market and retail store was hosting outdoor music.

After city staff inspected the site Feb. 17, 2022, and a Wilmington Police Department officer issued a violation four days later. An amended notice was sent April 21, citing the new city code, which went into effect Dec. 1, 2021.

The notice stated that live amplified music, added to the existing market, was not listed in the zoning compliance application and does not meet buffer requirements. The violation also pointed to “haphazard” parking issues along the residential streets due to the number of patrons visiting the market.

According to the city’s code, amplified sound is not permitted within 500 feet of residential districts, with one bordering the property to the south. Also by adding the “outdoor venue” use to the property, additional parking requirements are needed.

“The parking permitted for the site is not sufficient to accommodate the use of an entertainment venue,” Thurston told the board.

Under General Statue 160D-705 and the city’s land development code, the owners have a right to appeal within 30 days. Matthew Nichols, an attorney working for property owners Aubrey and Joy Rogers, submitted an appeal May 20 denying allegations that the property is in violation.

Biggers Market, rebranded in 2021 from Port City Produce, has been hosting live music to complement its retail operation since 2015, Nichols said at Thursday’s meeting. The location is grandfathered in by the old city code, which did not regulate outdoor music in the regional business district.

“Staff has framed this as an addition of an accessory use without zoning approval and we would fundamentally disagree,” Nichols said.

He added Biggers is not considered an event venue because it does not have a permanent stage and does not charge patrons to enjoy the music, rather the entertainment is “incidental” to the produce market.

He also argued that the city was trying to apply the new land development code to a site plan that was approved under the old one. The city signed off on 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 an accessory to the market,” Nichols told BOA members. “It’s a benefit to customers and adds to the environment.”

He also noted Biggers has never received a noise citation, which Thurston confirmed was true.

“I would contend, they have to have amplified sound on Market Street with 55,000 cars going by a day,” Nichols said.

Nichols, as well as Biggers co-owner Wells Struble, pointed to examples of other farmers markets that offer live music, such as Wilmington Farmers Market at Tidal Creek. An apartment complex is adjacent to the Oleander Drive site as well.

Struble said in terms of parking, he and his business partners bought a parcel adjacent to the market at 6240 Market St. and plan to convert it into an overflow lot.

While the project is ready for construction, permits still need approval.

Thurston stated four calls for service to the property were the result of parking issues and vehicle collisions. Cars line up on Elijah Drive, the residential street off Market, making it difficult to see when turning out of the parking lot.

Charles Stanley, homeowner at 18 Elijah Drive, testified his driveway has been blocked on several occasions. He also noted he can hear the music when he’s outside but said “it’s not that loud.”

Most board members seemed more concerned with the parking issues than amplified sound, except 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 ever talked to the neighbors, but you should have the quiet enjoyment of your property. With live music going on for six to eight hours of the day, what if they don’t like that music or want to hear it?”

Aside from Stanley, one other person made comments during the public hearing in support of the market.

Stephanie Jarvis, who lives in the neighborhood abutting Biggers, said Wilmington thrives on small businesses to drive its economy. The company employs local individuals and supports local farmers from where it sources its produce.

“Biggers is a success story for this community,” Jarvis told the board. “Over their evolution as a business, yes, they have grown into what you guys are calling an ‘event space.’ But I have never once shown up and had to purchase a ticket. But they’ve also grown into a family meeting gathering space, allowing us to create memories.”

She added local musicians are trying to earn a living.

No neighbors spoke in opposition to the music during the meeting and several audience members stood in support of Biggers.

“The real issue is not that it is a venue change or addition, it’s the parking and I believe the property to the south is working to address that,” board chair Patrick Moore said.

He made a motion to overturn the violation, which was approved by the majority of the board. Music can continue at Biggers Market.


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