WORK SESSION AGENDA REQUEST

Sponsor: 

Board of Supervisors Meeting Date:

Peter B. Schwartz, Marshall District Supervisor

 

October 8, 2009

Staff Lead:

Department: 

Kimberley Johnson, Zoning Administrator

 

Community Development

 

Topic:

A Work Session to Review a Zoning Ordinance Text Amendment to Sections 3-318.17-18, 5-1810, 6-102, and 15-300 Related to Farm Wineries

 

Topic Description:

The work session is an opportunity for staff to brief the Board of Supervisors on proposed revisions to the Zoning Ordinance related to farm wineries.  In the work session, staff will provide a brief overview of the existing farm wineries in the County, the regulatory history of wineries; and the existing Virginia Code provisions related to farm wineries.    Staff will also provide an overview of the Planning Commission recommended version of the farm winery amendments to the Zoning Ordinance.

 

Requested Action of the Board of Supervisors:

Conduct a work session.

 

Staff Report:

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.      

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).

 

Financial Impact Analysis:

No financial impact analysis has been conducted.

 

Identify any other Departments, Organizations or Individuals that would be affected by this request: 

Department of Economic Development
Wineries
Land Owners

 

Attachments:

1.   Code of Virginia Farm Winery Licensing

2.   List of Fauquier County Farm Wineries

3.   Current Virginia Code Section Limiting Local Regulation of Farm Wineries

4.   Existing Farm Winery Regulations in the Zoning Ordinance

5.   Resolution of Initiation with Original Draft of Ordinance

6.   Planning Commission Recommended Ordinance

7.   Planning Commission Recommended Ordinance Restructured by Staff

8.   Written Comments Received from the Public are available for review in the Department of Community Development

 

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