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The proposed text
amendment seeks to update the County’s regulations related to
farm wineries. A farm winery is a rural property where
grapes are grown and processed into wine. Farm wineries are
licensed by the Commonwealth (Attachment 1: Code of Virginia
Farm Winery Licensing). The County has seen a tremendous
growth in the number of farm wineries in the County over the
last three years; whereas in 2006 there were 9 farm wineries in
the County, at present, there are 18, with applications pending
for licenses for two additional wineries (Attachment 2: List of
Fauquier County Farm Wineries).
Farm Winery
Provisions in the Code of Virginia
The Code of
Virginia establishes limitations on the local regulation of farm
wineries (Attachment 3: Current Virginia Code Section Limiting
Local Regulation of Farm Wineries). In 2007, the Virginia Code
provisions were significantly changed, with an additional minor
change in 2008; the regulations now require that farm wineries
and certain accessory activities be allowed by-right on rural
properties, specifically:
•
production and harvesting of
fruit and other agricultural products;
•
the manufacturing of wine;
•
on-premises sale, tasting, or
consumption of wine during regular business hours within the
normal course of business of the licensed farm winery;
•
sale and shipment of wine by
common carrier in accordance with Virginia and Federal
regulations;
•
storage, warehousing, and
wholesaling of wine in accordance with Virginia and Federal
regulations;
•
sale of wine-related items that
are incidental to the sale of wine.
The Code also
requires that local regulation of farm wineries be reasonable,
take into consideration the economic impact on farm wineries,
take into account the agricultural nature of proposed activities
and events; and take into account whether the proposed
activities and events are usual and customary for farm wineries
in Virginia. The Code requires that usual and customary
activities be permitted without local regulation unless there is
a substantial impact on the health, safety, or welfare of the
public. The Code also requires that noise regulations for farm
wineries be the same as generally applied in the Ordinance,
except that outdoor amplified music arising from events and
activities may be more restrictive.
Fauquier County
Zoning Ordinance Provisions
The existing
Fauquier County Zoning Ordinance provisions (Attachment 4:
Existing Farm Winery Regulations in the Zoning Ordinance) allow
farm wineries, including the production of wine and accessory
tasting and sales activities, as an agricultural use by right in
the RA and RC Zoning Districts, consistent with the Virginia
Code. However, events at wineries, both wine related (i.e.,
wine dinner) and non-wine related (weddings) require approval of
a special permit or special exception for events.
Process
In late 2007, staff
began working on an amendment to the Zoning Ordinance provisions
related to events, to bring them into compliance with the new
Virginia Code regulations requiring that certain activities and
events be allowed by-right. In December 2007, Zoning staff met
with representatives of many of these wineries to begin a
discussion about revised regulations. Afterward, the wineries
worked together to draft proposed revised regulations, and
Supervisor Schwartz began a collaborative process with some of
the wineries, working on creating draft provisions related to
farm wineries.
Based upon this
work, the Board initiated the proposed Zoning Ordinance text
amendment in November 2008, with the proposed language draft
reflecting this collaboration between Supervisor Schwartz and
the wineries. (Attachment 5: Resolution of Initiation
w/Original Draft of Ordinance).
The Planning
Commission held an initial work session on the proposed Winery
regulations on February 17, 2009. Since that time, the
Commission has held multiple public hearings and work sessions
related to the proposed text amendment, with significant
participation by both wineries and neighbors of wineries. On
August 27, 2009, the Planning Commission voted unanimously in
support of sending a revised draft of the Ordinance to the Board
with a recommendation of approval (Attachment 6: PC Recommended
Ordinance). As a preamble to making the motion for approval of
the regulations, Ms. Garreau noted the following, asking that
these comments be provided to the Board in conjunction with the
recommendation:
“In May of 2008, wine critic Dan Berger, pondering
Virginia wines’ lack of performance on the global stage, noted
in his newsletter that "Virginia’s wines would be far more
respected if state legislators got behind them." Mr. Berger and
other observers of the wine industry cite such contributing
factors as "no quality standards, no certification that only
Virginia-grown fruit goes into the bottle," and a lack of "a
wine czar who isn’t connected to any of the state’s
sub-regions," according to an article in the current edition of
the Piedmont Virginian. In his remarks, Mr. Berger added that
"local wine industry leaders have failed to make a strong case
for their wines. Indeed, internal feuding among wineries has
left the wineries association far less effective than it could
be... As such it has failed to find the crucial funding...to
elevate the image of the state’s top wines."
So the State Legislature went to work, though not
quite in the direction that these noted experts indicated was
needed. In response to many farm winery owners’ conviction that
their livelihood is dependent upon their ability to attract and
build public attention to their wineries, state legislators have
singled out farm wineries in the Commonwealth’s vast
agricultural network. Under recently passed State Code, farm
wineries uniquely are encouraged to become public spaces, to
serve and sell alcohol at their farms, and to host such events
that, if sought by any other type of agricultural establishment,
would be subject to special permitting by local jurisdictions.
Counties all over Virginia are scrambling to bring their
disparate zoning ordinances in line with the new guidelines.
In the 21 months since Fauquier Zoning
Administrator Kim Johnson began working on our ordinance, staff,
the Planning Commission and members of the Board have met with
and heard from the County’s farm winery owners, winery managers
and owners in other parts of Virginia, viticulturists and wine
experts, our Department of Economic Development, Fauquier County
Counsel and many dozens of concerned citizens, in addition to
reviewing ordinances from around the country. The county has
received more than 100 emails, letters, and phone calls, has
hosted town meetings and has held numerous work sessions and
three public hearings.
While it is not in our purview to determine what
will boost or detract from Virginia’s wine industry, we must
consider the impacts of ordinances on the success of farm
wineries we are required by code to consider the economic
viability of our farm wineries. According to the State Code, the
County has "the land use authority to protect the health, safety
and welfare of the citizens of the Commonwealth." The job of the
Planning Commission is to make a recommendation to the BOS on a
zoning ordinance that upholds that part of the Code while not
violating other parts. This ordinance protects farm wineries’
right to farm, manufacture, market and sell their wines. It also
provides citizens who reside near or adjacent to farm wineries
and elsewhere in the county some level of assurance that the
peace and tranquility associated with our rural areas will be
maintained and that rural enclaves will not become destination
roadhouses or worse. I believe this Ordinance considers and
accounts for the economic viability of the wineries while
protecting the neighboring communities.
I heartily support sending this ordinance to the
BOS, in the fervent belief that all the energy that farm winery
owners have expended on this ordinance can now shift back to the
business at hand, which is to make great wines and propel
Virginia firmly onto the global stage.”
At a meeting held
just days before the Planning Commission acted, the two
Commission members in attendance had heard from both winery
representatives and neighborhood representatives that there was
some confusion regarding the meaning of the Ordinance. As the
Commission had run out of time to address these clarity issues,
in conjunction with the motion for approval, the Commission
asked staff to take the proposed Ordinance and work to
restructure and reword it with the purpose of clarifying it
without changing the substance. Attachment 7 provides staff’s
restructuring/rewording of the Planning Commission’s
recommendation. The revised staff version has restructured the
proposal significantly with the goal of addressing the
identified clarity issues, but makes no substantive changes to
the requirements proposed by the Planning Commission.
Overview of
Proposed Amendment as Recommended by the Planning Commission
By-Right Activities/Uses at Wineries
The revised
regulations set forth a list of activities permitted by-right
(as accessory uses to a farm winery). This list includes all
of those activities (i.e., production, incidental sales of wine
items, etc.) that are required to be allowed by the Code of
Virginia.
Tasting Room Hours
The amendment
generally limits the by-right hours of a tasting room to 9:00
a.m. – 6:00 p.m., effectively defining “regular business hours”
for farm wineries. The State Code states that localities must
allow wine tasting during regular business hours, but did not
define those hours. The Planning Commission reviewed typical
closing times at wineries and found that most closed by 6:00
p.m., with occasional later hours. Because the regulations
also allow activities or events of a certain size to occur at
wineries once a week in the evening, effectively wineries could
actually, under this existing provision, keep their tasting
rooms open until 10:00 p.m. one evening a week.
Number and Size of By-Right Events Allowed
The regulations
establish a level of by-right events for farm wineries.
Historically, the County has always regulated events at wineries
through the special permit and special exception process,
consistent with how the County regulates events at all other
uses in the County, including other agricultural uses. The
2007 Virginia Code update requires that the County change this
approach for farm wineries, allowing some events by-right. The
proposed regulations would continue to allow a winery to ask for
any level of events through the special exception process, but
also establishes a level of by-right events for each winery.
The proposed text amendment establishes the by-right level of
events that a winery is entitled to based upon the size of the
winery and type of road accessing the winery. The regulations
also distinguish between events
occurring in the course of a regular business day (9:00 a.m. to
6:00 p.m.) versus evening events (6:00 p.m. to 10:00 p.m.) and
events that occur in addition to regular tasting business
as opposed to events that occur in lieu of regular
tasting business.
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Category of Farm Winery |
Daytime Events:
Between 9:00 a.m. and 6:00 p.m. |
Evening Events:
Between 6:00 p.m. and 10:00 p.m. |
|
Wineries located on a parcel with at least 25 acres; and
with direct access on a Minor Collector or higher
classification street, or a functionally equivalent
street, as determined by the Zoning Administrator. |
When the tasting room is also open to the public, an
unlimited number of events up to 60 people are allowed,
in addition to the ongoing tastings.
When the tasting room is closed to the general public,
an unlimited number of events up to 200 people are
allowed, plus 1 event/quarter up to 300 people and 1
event/year up to 500 people. |
1 event per week up to 60 people
1 event per month up to 200 people
|
|
Wineries with at least 15 acres and, if located within a
subdivision, average lot size of all parcels in
subdivision is at least 15 acres. |
When the tasting room is open to the public, an
unlimited number of activities/events up to
2560 people
are allowed, in addition to the ongoing tastings.
When tasting room is closed to the general public, an
unlimited number of activities/events up to
5025 people is allowed, plus 1
event/quarter up to 150 people and 1 event/year up to
250 people. |
1 event per week up to 25 people
1 event per month up to 100 people
|
|
All Other Wineries |
No events/activities when the tasting room is open to
the general public, in addition to the ongoing tastings.
When tasting room is closed to the general public,
unlimited number of events up to 25 people, plus 1
event/quarter up to 100 people. |
1 event per week up to 25 people. |
Staff would note
that most of the county’s farm wineries would fall into the
middle tier under this proposal. The timing distinctions in the
proposal are intended to address the fact that evening events
are often more impactive to neighbors (who are more likely to be
at home) and also raised heightened safety issues relative to
travel on rural roads. In addition, considering whether a
winery is open or closed for regular business during an event,
provides increased flexibility for larger events because they
are not adding concurrent impacts over the tasting events
allowed by-right.
Definitions of Wine Tasting and Winery Events
The Ordinance
necessarily distinguishes between events and other tasting
activities because the County is allowed to regulate events but
not tasting activities. A significant challenge has been to
develop a definition that distinguishes between the two. The
proposed definitions in the current draft is:
WINE TASTING: Sampling,
by the general public, of wines. Incidental food such as cheese
and crackers, etc. may be provided along with the wine. Wine
tasting shall include special promotions such as barrel tasting
open houses and, seasonal and holiday weekends with special
incidental foods and background entertainment provided that such
tastings are generally advertised and do not meet the criteria
listed for a WINE EVENT.
WINERY EVENTS:
Events held at a Farm Winery to promote the sale of a winery’s
wine. While such events may include private weddings or other
business, social or fundraising gatherings where the Farm Winery
is allowing its facilities to be utilized, such non-wine related
events shall be subordinate to events focused on the marketing
of wine, such as wine seminars and wine dinners. An activity
shall also be considered a WINERY EVENT under the terms of this
Ordinance if any of the following criteria are met:
•
The activity has a specific
starting time, rather than being spread throughout normal
business hours;
•
An entrance, cover charge or
attendance fee is charged;
•
Reservations are required
(except where reservations are utilized solely to space visitors
to the winery out over a period of time);
•
Individual invitations are
issued; or
•
The winery is closed to the
general public during the activity
•
The activity occurs beyond 6:00
p.m.
Music, art, or other entertainment and cultural activities shall
be allowed as accessory activities in conjunction with Winery
Events; however, in no case shall entertainment include
fireworks, hot air balloons or helicopter rides unless
specifically authorized by special exception. Any food provided
in conjunction with a Winery Event shall be prepared off-site;
in no case shall approval of a Winery Event be construed to
allow food cooked to order or food preparation on-site. Events
lasting more than a single day shall be counted as a separate
event for each day under these provisions.
Noise
The Virginia Code
provision does not allow the County to apply any noise
limitations to wineries that are not part of the code applying
to all uses, except that it does specifically allow localities
to regulate outdoor amplified music related to events and
activities. Noise impacts appear to be the most critical
concern of winery neighbors, as evidenced by the public
testimony on this text amendment. The Planning Commission
recommended draft includes the following noise limitation for
wineries:
Noise: No
outdoor amplified music shall be allowed. Outdoor amplified
music shall include music emanating from an open or temporary
structure. In addition, no noise shall exceed the noise limits
in or adjacent to residential uses as set forth in Section
9-704.
There was much
discussion throughout the Planning Commission hearing process as
to whether the limitation should be “no outdoor amplified music”
or “no amplified music audible at the property line,” with
neighbors strongly preferring the former and wineries preferring
the latter.
Process
Under existing
Zoning Ordinance regulations, almost all uses in the County,
including farm wineries, are required to secure a Zoning Permit
prior to operation. As part of the Zoning Permit process, the
applicant is required to provide permit approval from the
Virginia Department of Transportation (VDOT) related to access,
and Health Department permit approval related to septic and
water for the level of events they propose. The Zoning Permit
process affords the County to check other basic
requirements/limitations, such as building setbacks, keeping out
of the floodplain, parking, etc.
The proposed text
amendment more specifically defines the Zoning Permit process,
as the process has not properly been followed in the past.
While most wineries do have zoning permits, few have identified
on the zoning permit application any intended activity other
than growing and processing grapes. Staff is currently in the
process of compiling all of the details on existing zoning
permits for wineries. The text amendment clearly sets forth
the requirements for the zoning permit. The zoning permit, with
associated Health Department and VDOT permits, are critical, in
that they may limit a winery to a lesser level of events that
would otherwise be allowed by the Ordinance. For example, if
a winery only provides septic facilities for a maximum of 50
people, even if the Zoning Ordinance allows larger events
generally, the zoning permit for the property would set the cap
at 50 people in light of the applicant’s proposed septic system.
Staff would note
that in the formal Planning Commission draft, this by-right
approval process was called an “administrative pemit” rather
than a zoning permit, causing substantial confusion among
wineries as to whether or not the permit was truly by-right or
not. To eliminate this confusion, the staff restructuring has
moved these process requirements to another location in the
Ordinance and clearly defined the process as a zoning permit
process. The submission requirements are not new, but rather
an elaboration on existing zoning permit submission requirements
found in Article 13 of the Zoning Ordinance. The elaborations
are intended to specifically clarify for all what is required.
Public Comment
There was extensive
participation by both wineries and the public in the process as
this text amendment was considered by the Planning Commission.
A copy of all written correspondence received to date is
attached for the Board’s information (Attachment 8: Written
Comments Received). |