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02.26.2013  
 

A Tale of Two Lawsuits

Barrel Oak Winery 'wins' special exception as lawmaking body is served with second claim

 
by Linda Jones McKee
 
 
barrel oak winery special events
 
According to a special exception granted Feb. 22, Barrel Oak Winery can now host an extra 12 special events per year beyond the previous maximum.
Warrenton, Va.—Like many states east of the Rockies, Virginia has experienced tremendous growth in the number of wineries operating within the state during the past 30 years. In 1980 there were approximately 20 wineries in Virginia, and today the count is 220, according to WinesVinesDATA; additionally, grapegrowing is now recognized as an agricultural growth industry. However not everyone likes the tourism aspect of the wine industry, which draws more visitors, and some counties in Virginia have attempted to use their zoning ordinances to control what wineries can and cannot do with their properties through land-use regulations.

By 2005, the farm wineries in Fauquier County, Va., west of Washington, D.C., were limited by local regulations that threatened to stifle their ability to grow. Because of the negative impact of these local restrictions, the Virginia General Assembly passed the Farm Winery Act of 2006 with the purpose of protecting the expanding farm winery industry and constraining a local government’s regulatory authority over farm wineries. The law prohibits a local government from regulating farm winery operations, with the exception of large festival events and loud outdoor music that would impact the surrounding community.

Since the passage of the Farm Winery Act, the wine industry in Virginia has grown to the point where it now contributes $750 million annually to the state’s economy, and state and local taxes have increased from $21 million in 2005 to $43 million in 2010.

New regulations imposed
Fauquier County officials began to discuss a revised farm winery ordinance as early as 2008, and county supervisors have held numerous work sessions and public hearings on different versions of a potential ordinance. On July 12, 2012, the Board of Supervisors of Fauquier County in Warrenton, Va., passed a new farm winery ordinance that restricted farm wineries’ hours, the number of special events a winery could have per month and the number of people who could attend those events, in addition to other provisions.

Under the new ordinance, each farm winery could have two events per month during regular business hours (until 6 p.m.) for no more than 25 ticketed/reserved participants. In lieu of one of these events for 25 people, a farm winery may serve food to the general public. An administrative permit could authorize extending business hours until 7 p.m. (or 8 p.m. during certain times of the year) as well as one additional event for no more than 150 participants. Larger events for 200-500 persons could be authorized by special exception.

Fauquier County wineries respond
Reaction to the new zoning ordinance on the part of the county’s wineries was immediate, but not united. Fauquier County is home to 26 wineries, but even within that relatively small number there exists a range of different business models. Some wineries prefer to host no events at any time, and a restriction of hours for them is not an imposition. For other wineries—especially new ones—special events serve to attract consumers and help build a customer base. For those wineries, the ability to hold events past 6 p.m.—especially on weekend nights—was the difference between building a growing business and potential failure.

On Aug. 10, two lawsuits were filed against the Fauquier County Board of Supervisors and the farm winery ordinance. Attorney Merle Fallon of Warrenton, Va., filed a lawsuit on behalf of Brian and Sharon Roeder, owners of Barrel Oak Winery in Delaplane, Va. Meanwhile Philip Carter Strother, who owns Philip Carter Winery in Hume, Va., and serves as managing partner in the Richmond, Va., law firm of Strother Law Offices PLC, filed a suit that included his and nine other Fauquier County wineries. Both lawsuits assert that county officials enacted regulations that violate the state’s Farm Winery Act, especially the provision that “usual and customary activities and events at farm wineries shall be permitted without local regulation unless there is a substantial impact on the health, safety or welfare of the public.”

Resolution of the Barrel Oak suit
While the two suits were filed against the Fauquier County Board of Supervisors, neither Roeder nor Strother served the Board of Supervisors with the suits, in the hope that county officials would be willing to negotiate changes to the ordinance and avoid the time and expense of a trial in court. During the fall, discussions were held between county officials and the wineries involved in the lawsuits.

Barrel Oak Winery applied for a special exception that would allow special events and for it to continue to operate as it had in the past. Before Barrel Oak opened in 2008, the Roeders designed a marketing plan to establish their winery as a community center that would attract local residents. Their tasting room has been open until 9 p.m. on Fridays during the winter months and until 9 p.m. on Fridays and Saturdays during the spring, summer and fall. The winery also hosts events such as charity fundraisers.

On Feb. 14, the Board of Supervisors of Fauquier County voted to settle the lawsuit brought by Barrel Oak. By passing an “alternate resolution,” the Board of Supervisors granted the winery “a special exception to allow farm winery special events.” The alternate resolution will allow the winery to hold 12 additional events beyond the maximum of 25 events allowed under the ordinance and to have hours extended beyond the limits of the county winery ordinance.

The special exception will be in effect provisionally for six months, during which time Barrel Oak Winery must meet several conditions including expansion of their septic system, installation of evergreen trees to provide additional screening, implementation of specific fire safety and ingress-egress measures specified by the resolution, and relocation of the entrance sign in compliance with the regulations of the Virginia Department of Transportation. If all conditions are met, the special exception will become permanent.

Roeder told Wines & Vines, “We’re thrilled with the outcome. It’s a win for the winery and a relief for us as it secures our business model. But it’s not going to benefit either the county or the state because of the overall precedent that was set.”

The second winery suit continues
The alternate resolution passed by the county supervisors resolved the Barrel Oak lawsuit, but it did not settle the one brought by Strother on behalf of the 10 Fauquier County wineries. Strother told Wines & Vines that county officials wanted to impose the same conditions for a special exception on the 10 wineries as were placed on Barrel Oak Winery. “The wineries involved with this lawsuit are a lot smaller than Barrel Oak,” Strother noted. “Restricting their hours and ability to hold special events would probably put some of the wineries out of business. Some can’t afford some of the changes required by the special exception—to their septic systems, for example, or the winery is located on a different kind of geological formation that won’t allow the type of septic system the county ordinance is mandating. It’s all grossly unfair and driven by a group of super wealthy people who don’t care about small business, only about maintaining the views from their 1,000-acre estates.”

On Feb. 22, a week after the Barrel Oak Winery suit was settled, Strother had the lawsuit served on behalf of the 10 wineries to the Board of Supervisors of Fauquier County. If it is not settled out of court, the lawsuit will go to trial. Meanwhile, the debate over land use and the role of wineries in this part of Virginia continues.

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