Fauquier Farm Sales Ordinance Fails the Test

by Mark J. Fitzgibbons

This past week Fauquier County passed a new farm sales ordinance following over a year of drama that reached across Virginia and even the United States.

The ordinance slightly expands farmers’ rights to sell farm goods.

That is why the county supervisors failed the test.  They still think they can dish out rights.

They also believe zoning ordinances exist to allow the county to use discriminatory enforcement against some citizens, and give favor to others, groups, and real estate proprietors.

The farm sales ordinance, coming under the threat of state legislation and lawsuits, shows that the supervisors still hold their profoundly wrong view of their power.

The message they send: Don’t speak out against the county government, or we’ll enforce the laws strictly against you, but your neighbor who “behaves” politically will be allowed to break the laws.

This is, in essence, the same way the Obama administration enforces the law.  That the county is controlled by Republicans shows that abuse of power can be quite bipartisan.

The problem is twofold.  The core of the Virginia Code governing how counties may enforce zoning ordinances was developed in 1962.  Virginia was under Democrat control, and this was five years before the United States Supreme Court struck down Virginia’s ban on interracial marriage.

A reading of the Virginia Code shows that it was set up to enable local governments to discriminate in their enforcement of zoning laws.  The Code allows counties to use ‘Kangaroo Courts’ for administrative enforcement and appeals.  The Code allows counties to deprive citizens of due process, which means that counties can discriminate against some, and provide favors to others.  County justice is not blind.

The second part of the equation is that our supervisors in varying degrees still don’t understand basic American concepts of law and rights.

American law was designed to protect rights while protecting against harms.  Like the Obama administration, Fauquier’s supervisors seem to believe that rights are to be granted by government, and that the law is not meant to protect against harms but to allow government to control and coerce the people.

Chairman Holder Trumbo used the debate about the farm sales ordinance as a chance to remark that perhaps we should not have zoning laws.

Perhaps some real estate developers want to build strip malls where farms exist, and perhaps Chairman Trumbo is willing to relinquish the county’s rural nature for more tax revenues to cover the county debt under his reign.

But farmers and the people of Fauquier who love its rural character want to preserve farm land.  That, however, requires that farmers be free to earn a living rather than have their mortgages foreclosed.  We preserve farm land by letting farmers earn a living.  Farmers, not the county, know how to do this best.

Property can be zoned without giving Zoning Czar Kim Johnson the authority to fine farmers selling a few tomatoes too many, or for birthday parties.  Zoning laws are not to be used to peer into the finances of farmers, which this new ordinance seems to do by giving Johnson discretion.  Zoning also must not deprive farmers the rights that other citizens enjoy.

This recent ordinance shows that our officials are not equipped to fix the larger underlying problems in Fauquier County.  Business owners, for example, still can’t park their business vehicles at their homes, and the county has failed to provide water for business districts, which impedes commercial activity in commercial districts.

There are dozens of examples of how the county has inserted its nose where it doesn’t belong, and has failed to provide the basic services it should.

No county is perfectly run, but not all counties in Virginia are run in this dysfunctional way.   We need leaders with better governing principles.

Nobody wants Richmond running the county, but this ordinance shows that Richmond must place controls on local control, including civil remedies against counties and wayward officials.



3 Responses to Fauquier Farm Sales Ordinance Fails the Test

  1. Virginia Grown? Reply

    December 15, 2013 at 2:45 pm

    We should applaud this ordinance as a good step in the right direction, but please keep In mind There remain several flaws with this ordinance that force good farmers to break the law because this ordinance in unenforceable and against usual and customary farming practices. The following are huge errors that open the county up to More litigation:

    1 Many farmers buy everything from livestock to vegetables and fruits in West Virginia and Maryland. There is also established case law in a case won by the Institute for Justice that Requiring “only Virginia” products violates interstate commerce. It is admirable to support Virginia grown, but to require it , violates the rights of farmers And long established practices.
    Perhaps a mileage radius would have been a more sound way to handle. Plus how many bottled waters or other ancillary items a are produced in Virginia?

    2 It is long established that a 50% cap is very detrimental to farmers and does not take into consideration drought, blight, new beginning farmers, etc. Moreover, the notion that the county will have to
    Hire Farm Police to audit farmers is outrageous.

    3 This business of the “6 month rule” on livestock is a joke. And poultry from chicks? Really? Since when?

    4 only 12x a year for the use of a barn or a farm structure or shed? Really? Building code requirements for farm sheds and buildings? Since when?

    Again, better but still needs work.

  2. Mark Fitzgibbons Reply

    December 15, 2013 at 10:44 am


    Now, Lee, insults are unbecoming an elected official.

    I understand that you argued valiantly to improve the ordinance, but you nevertheless prove my point, writing in your comment:

    “As I promised I will be here to help any of you. If this new and REALLY good ordinance prevents any of you as farmers from making a living or additional income that would not interfere with or endanger our neighbors.”

    As someone who attended the hearing wrote:

    “After speaking at the county Board of Supervisors meeting tonight about the new farm regulations and the requirement that you can only process fruits produced on the farm or on land adjacent to it and owned by the same individual and about my need to buy inexpensive surplus and undersized apples to use to make cider in order to compete in price with the Chinese imports I spoke to one of the supervisors who basically told me to go ahead and do it and if someone complains to come back to him and he will put through a text amendment to allow it. He likened obeying the county zoning ordinances to driving 56 MPH in a 55 MPH zone. They are rarely enforced and only there to allow them to go after the most flagrant violators. I would rather know the law and obey it from the start. It takes a little different mindset to go ahead and willingly break it and then have it changed if you are caught (as long as you are on good terms with the supervisor). Things certainly are done differently in the country.”

    So, having a private farm is like driving on the public roads, eh?

    Good thing Lee Sherbeyn is around to help his friends who break the law, right? What happens, though, if Lee decides to retire from public life? Who’s going to “fix their tickets?” And what about those who are not FOL (Friends of Lee)?

    Despite your failure to comprehend, thanks for reading, and Merry Christmas.


  3. Lee Sherbeyn Reply

    December 15, 2013 at 9:27 am

    And it only took Mark 19 paragraphs to say nothing this time. I think it is great that he is expanding his abilities. This should enable him to incite the public over nothing but with many LESS falsehoods.
    Yes everyone I am one of those supervisors that he speaks of. I am also a farmer that has been farming and living in this county for over 20 years. As we work on the things in the county that separate us (with the exception of Mark) we will bring it to the best possible conclusion. I want to publicly thank Everyone that has helped us get it to this point. Madge E, Martha B, Rick B, Jessie S, Timmy G. and his whole family. They are quite a remarkable bunch. As I promised I will be here to help any of you. If this new and REALLY good ordinance prevents any of you as farmers from making a living or additional income that would not interfere with or endanger our neighbors. God knows none of us wants that. Thank all of you again and as we keep making Fauquier better and working together Please have a great CHRISTmas.
    P.S. Merle Fallon, I am still trying to fulfill my promise to you.
    Lee Sherbeyn
    Proud to be one of the 5 supervisors that support this effort.

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