By Kenric Ward | Watchdog.org Virginia Bureau
WARRENTON — Several vintners and a local farmer are challenging a land-use ordinance that they call an assault on economic freedom and a clear violation of state law in Fauquier County.
Farmer Martha Boneta filed a lawsuit Aug. 31, seeking $2 million in damages related to fines she faces for selling agricultural products on her property and for hosting a children’s birthday party there.
Neither of the vintners’ lawsuits seeks monetary compensation, but all three complaints lodged in Fauquier County Circuit Court claim that local officials overstepped their authority by enacting regulations that conflict with Virginia’s Right to Farm Act.
The vintners claim that the restrictions in Fauquier’s farm winery ordinance violate the portion of the state law that reads: “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.”
County attorney Kevin Burke and the four supervisors who voted for the ordinance declined to comment on the cases.
“We have been advised not to discuss a matter that is the subject of ongoing litigation by our counsel,” wrote Supervisor Holder Trumbo in an email.
But in 2008, when local officials were weighing a lighter version of the winery ordinance, a deputy county attorney advised supervisors they were “prohibited” from regulating activities under the purview of state Alcohol and Beverage Control laws.
County Administrator Paul McCulla said the ordinance “balances the rights of people living next to and around wineries entitled to the quiet and enjoyment of their property with the rights of business.”
McCulla said officials do not believe the ordinance violates any state statutes.
However, Philip Strother, owner of the Philip Carter Winery in Hume, said the county’s “comprehensive regulatory scheme is suffocating small businesses and farmers’ ability to work their land.”
Strother, an attorney who filed the third lawsuit and is the lead plaintiff, told Watchdog.org Virginia Bureau that the county has no business dictating hours of operation or requiring special-use permits when state law prevails.
State Secretary of Agriculture Todd Haymore echoed that opinion in a letter to the Fauquier County Board of Supervisors, asserting that “certain provisions are in conflict with the code of Virginia that clearly defines the usual and customary operations of farm wineries.”
“The confusion created by this potential conflict is likely to generate legal proceedings against the county, which will be costly for all parties involved,” Haymore added presciently in his July 12 letter — the day the ordinance passed.
Louizos Papadopoulis, owner of Molon Lave Vineyards here and a co-plaintiff in Strother’s lawsuit, said the Fauquier ordinance, approved on a 4-1 vote, could cost local operators their livelihoods and prevent others from opening.
Vintners bridle at the new regulations that shutter their tasting rooms at 6 p.m. on weekdays, limit “special events” to two per month, restrict food offerings and establish 300-foot setback standards for buildings.
Attorney Merle Fallon, who represents Barrel Oak Winery, points out that the county conducted no studies to assess the wineries’ impact on “public health, safety and welfare” — areas that could allow a local jurisdiction to build on state statutes.
Mark Fitzgibbons, a local attorney and land-use activist who is not a party to the lawsuits, says Fauquier officials are “trespassing on the rights of farmers and vintners.” In each case, he said the county is giving the zoning administrator the discretion to define prohibited activities.
Gov. Bob McDonnell‘s administration has been a strong promoter of the wine industry, which contributes more than $700 million to the state economy and paid $43 million in taxes last year.
Wineries say Fauquier’s aggressive regulations will inflict economic damage on the community.
Barrel Oak says it collected $950,000 in taxable “gross receipts” during the hours banned by the new ordinance, with 75 percent of its revenue earned after 6 p.m.
Seeking damages from the county, Boneta, operator of the 68-acre Liberty Farm, claims that Fauquier’s new agricultural zoning laws — and the ensuing legal battles — jeopardize her livelihood.
Strother says he believes he knows who drove the board’s decision to pass this ordinance.
“It’s the thousand-acre club,” he said, describing “extraordinarily, well-heeled individuals who have established their bucolic lifestyle and are hell-bent to maintain it.
“Many just cut their lawn and get their land-use tax credit by cutting hay. That’s all they do, and they control the politics.”
Jim Law, owner of Linden Vineyards in Linden, doesn’t have 1,000 acres, but he supports the county’s action.
“The ‘farm winery’ has morphed into something not envisioned. Now we have ‘entertainment wineries,'” he said, adding that some local vintners seem more focused on throwing parties and hosting weddings than in growing grapes.
Law says event-oriented wineries — some of which purchase a majority of their wine from off-site locations — violate the spirit, if not the letter, of the state’s farm winery law.
The statute states that at least 51 percent of the grapes used in wine sold at a farm wineries must be grown on the premises. But Law said some vintners skirt the requirement by purchasing “paper leases” to obtain grapes from other sites.
Further, Law believes the county’s safety concerns are justified.
“You have hundreds of people driving on secondary roads where law enforcement is far away,” he said.
“The whole nature of the business has changed,” said the winemaker, whose 20-acre vineyard, planted in 1985, has become one of the region’s largest producers.
Contact Kenric Ward at [email protected] or (571) 319-9824.