Lawsuits filed in response to farm winery ordinance

By LINDA BELL WINE
AFP Correspondent

WARRENTON, Va. — Eleven wineries in Fauquier County have joined together to file suit against the Fauquier County Board of Supervisors, claiming that the board is violating their rights to hold special events on their wineries.
Barrel Oak Winery in Delaplane, Va., has also filed a separate suit, alleging the new Farm Winery Ordinance will put them out of business.
The 11 wineries claim the board exceeded its authority when it adopted the new ordinance at its July meeting. The lawsuit was filed, but not served, which means both sides have an opportunity to work it out before the case goes before a judge.
The plaintiffs asked for declaratory judgment, which is a legal judgment issued in anticipation of a trial.
Although wine has been made in Virginia for 250 years, the recent winery problems in Fauquier started in 2004, when the county’s zoning administrator, Kim Johnson, proclaimed that “a winery may not host parties ... or have promotional concerts, festivals or other advertised events” by right. This regulation continued in 2005 in Fauquier (other counties imposed similar limitations).
In 2006, the Virginia General Assembly passed a restriction on local government’s authority to regulate wineries in their locality. The new law shifted the burden of proof to localities to show that an activity or event is unusual for a farm winery, and that it has substantial impact on the health, safety and welfare of the public.
On July 1, 2007, Fauquier’s Wine Ordinance became void. Relying on the law, the plaintiffs in this suit then expanded their operations.
In 2009 the law was amended to tighten requirements on localities. Since the passage of the new code in 2009, the number of wineries in the state has grown from 125 in 2006 to more than 230 today. The economic impact is tremendous, as Virginia is the fifth largest wine producing state with an 11 percent increase in sales in 2011. The wine industry creates jobs, generates taxes and brings in tourist dollars, particularly in rural areas, the winery owners say, and don’t need to be further regulated.
Fauquier County is now home to 26 wineries. Almost 750 acres are dedicated to grapes. The average price of an acre is $15,000, plus another $15,000 to $20,000 an acre to put in a vineyard. Add to that three to five years to get fruit, and five to 10 years for quality fruit. Another one to three years is necessary before the wine can be sold.
None of the 11 wineries have ever received a violation from zoning or a citation from the sheriff.
The county’s own deputy attorney advised the board in a memo that the County cannot regulate agricultural activity. Virginia’s agriculture and forestry secretary warned that the Farm Winery Ordinance would lead to lawsuits, business insecurity and put off investors.
Brian and Sharon Roeder, who filed the other lawsuit against the Board of Supervisors, own 20 acres at Barrel Oak Winery in Delaplane. BOW, as it is informally called, “is typically open to the public until 9 p.m. Now it will have to close at 6.” Brian said. “The county has done no impact study or safety impact study; they have not done their part. They will put us out of business.”