PUBLIC HEARING AGENDA REQUEST

Sponsor: 

Board of Supervisors Meeting Date:

Peter B. Schwartz, Marshall District Supervisor

 

December 10, 2009

Staff Lead:

Department: 

Kimberley Johnson, Zoning Administrator

 

Community Development

 

Topic:

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 proposed text amendment clearly establishes within the Zoning Ordinance the by-right activities allowed at Farm Wineries, including a certain size and number of by-right events.  Additional events at Farm Wineries can then be approved by Special Exception.

 

Requested Action of the Board of Supervisors:

Conduct a public hearing and consider adoption of the attached Ordinance.

 

Staff Report:

The proposed text amendment seeks to update the County’s regulations related to farm wineries to bring them into compliance with updated Code of Virginia provisions on Farm Wineries.  Staff began working on this amendment in late 2007, with a Board initiation of the text amendment occurring in November 2008.  The Planning Commission held its first work session on the issue in February 2009, holding multiple additional work sessions and public hearings until taking action on August 27, 2009, unanimously recommending approval of a revised draft of regulations.

The Board of Supervisors held a Work Session on the winery issues on October 15, 2009.  At that meeting, staff reviewed the legislative history of farm winery regulation in the County, the Code of Virginia provisions, and the draft regulations recommended by the Planning Commission.  An initial public hearing and additional work session on the issue were also held by the Board on November 12, 2009.

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 25 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 50 people are 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 was previously made available to the Board.  As of the date of drafting this report, no new comments have been received by staff since the Board’s work session on the winery issue.

 

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

Attachment:

1.   Proposed Ordinance (PC Recommendation Restructured)

 

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