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Farm Wineries and Zoning

Ed Note: This piece was originally published as a Letter to the Editor in the Fauquier Times Democrat by Philip Carter Strother, who has a law practice based in Richmond and is the proprietor of Philip Carter Winery of Virginia, and chairman of the Fauquier Wine Council as well as of the Virginia Wine Council. Mr. Strother writes:

Vit, the Latin root of the word viticulture, is also the source of vita—life itself.

Virginians have long identified themselves with the vine, have recognized its importance, and have consistently promoted a viable wine industry during the past four centuries.  As Virginians, grape and wine production is part of our collective cultural identity and heritage.

This love affair with the vine dates back as far as 1619, with the adoption of the Twelfth Act of the Original Acts of the Virginia General Assembly that required every land owner to plant and maintain ten vines, making it a crime to neglect this most important and respectable civic duty.  Between 1619 and the American War of Independence, Virginians passed no fewer than 12 laws to encourage the production of quality wines in the Commonwealth.

On October 30, 1760, 103 of our Virginian Founding Fathers proclaimed that: “It has been long lamented that this colony should pay annually a considerable sum of money for foreign wines, often mean in quality, and at an extravagant price, when we have the greatest reason to believe our climate capable of producing as fine wines as any in the world, were the cultivation of the vineyard properly attended to.”  These Founding Fathers included George Wythe and Richard Henry Lee, both signers of the Declaration of Independence; as well as George Washington, the Father of our Country, and Royal Governor Francis Fauquier, the namesake of Fauquier County.

Lord Fauquier would later certify in 1763 that the Carter Family successfully had growing at Cleve Plantation a vineyard of European grapes both red & white.  The Carters also received the first international recognition for wines produced at Cleve, as being quality wines representing “the first spirited attempt at making wine in America.”  In Fauquier County, there is a connectedness between the wine farmer and the land that forges an eternal bond, much like the cultural identity of the region itself defined by our historical connection to wine.  It is worthy of appreciation and protection.

Despite this deep-rooted connection, there is a small vocal minority in Fauquier County who is diligently pursuing a special interests agenda to undermine the economic vitality of the wine farmers in the County.  The Fauquier County Board of Supervisors is presently considering the adoption of a zoning ordinance amendment applicable to farm wineries in the county.  Although there has not been a single substantiated complaint against a farm winery in the county in over five years, the proposed ordinance sets about to control how the business of growing wine is conducted in the county.  This ordinance represents a serious threat to many existing Fauquier wineries and an even greater threat to the growth and long term economic vitality of the Fauquier Wine Region.

The proposed ordinance also represents the latest effort in a decade long ideological battle in the County that pits wine farmers against a privileged elitist minority who believe that their personal version of the pastoral ideal should control over others.  This pastoral ideal is characterized by an esoteric notion of the environment; where sterile open space landscapes are preferable to organic and productive agricultural lands that support a sustainable local wine economy and viable culture.

Between 2000 and 2005 certain localities, including Fauquier, advanced this agenda by enacting zoning ordinances that significantly restricted the activities and events at farm wineries.  This created serious concern at the state level that the actions of a few rouge counties could unilaterally adopt zoning restrictions that would undermine the larger state interest to promote the growth of the wine industry.

By 2006, this conflict reached a head when House Bill 1435 was introduced into the General Assembly by Delegate David Albo.  HB1435 was intended to promote the growth of the Virginia farm wine industry by expressly restricting localities from regulating wineries through zoning.  After a two-year study conducted by the Office of the Secretary of Agriculture and Forestry, which included 11 interested agencies and organizations, the General Assembly passed Virginia Code § 15.2-2288.3(2007).

Section 15.2-2288.3 represented a comprehensive restriction on a local government’s regulatory authority over farm wineries.  The law expressly prohibits a locality from regulating multiple facets of a farm winery operation, and in the context of activities and events at farm wineries, the law shifts the burden of proof to localities to demonstrate that a particular activity or event is not usual and customary for farm wineries throughout the Commonwealth, and that the activity or event has a “substantial impact” on the health, safety, or welfare of the public, prior to any local regulation.

The requirement that a locality must demonstrate a substantial impact is unique and appears nowhere else in Virginia land use law.  The requirement curtails a locality’s generalized land use authority to enact regulations “to improve the public health, safety, convenience and welfare of its citizens,” and places a considerably higher burden squarely on a locality when attempting to demonstrate the reasonableness of its proposed regulation of a farm winery’s activities and events.

At its core, 15.2-2288.3 declares the policy of the Commonwealth to preserve the economic vitality of the Virginia wine industry, while maintaining limited local authority to prevent “Woodstock” style events that would truly have a substantial impact on the welfare of the surrounding community.  It also allows a locality to place reasonable restriction on outdoor amplified music, but any such restriction must be reasonable.  During the two-year General Assembly debate, these points were conceded by the wine industry because of the wine industry’s recognition of the potential impact of large scale, festival type events, and the passionate desire to integrate our farming operations into the community.

Virginia Code 15.2288.3 represents the single most significant law for the advancement of the Virginia wine industry in the modern era since the 1980 amendment to the Virginia Farm Winery Act.  In 2006 there were only 125 wineries in the Commonwealth.  Today, there is close to 200, and this number is growing.  It is anticipated that there will be over a 100 percent growth in the number of wineries within a decade of the law’s passage.

Despite the comprehensive nature of the law, in 2008, certain localities began to take the strained legal position that the tasting room of a farm winery is a commercial use that is separate and distinguishable from the other agricultural production areas of a farm winery.

In doing so, these localities moved to regulate the tasting rooms of the wineries.

In response, the Virginia General Assembly passed House Bill 2071 and Senate Bill 1033, amending section 15.2-2288.3, to expressly recognize the agricultural nature of licensed Virginia farm wineries, and placed an additional requirement on localities to acknowledge the agricultural nature of activities and events at farm wineries when considering reasonable restrictions on activities and events that are not usual and customary for farm wineries.

The most recent zoning ordinance proposal being considered by Fauquier represents yet another lost cause effort by a marginalized elitist group that is out of touch with the hard working citizens of Fauquier County who enjoy their farm wineries and the benefits the wineries provide the community.  It also threatens the economic vitality of these small businesses and the families who rely on them for their livelihoods and investments.

It is hoped that Fauquier county officials will reject the proposed zoning ordinance, which, if passed, is certain to entangle the County in a considerable legal and legislative battle.

I am, Philip Carter Strother

I write as the owner of Philip Carter Winery. I serve as the chairman of the Fauquier Wine Council and the chairman of the Virginia Wine Council.

Phiip Carter Winery of Virginia


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