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July 19, 2013

Cuccinelli: Fauquier winery ordinance exceeds authority

File Photo/Lawrence Emerson
“This ordinance threatens the financial viability of my winery,” Philip Strother Carter tells the supervisors at a public hearing before the adoption last July. The Hume winery owner and Richmond lawyer later filed a lawsuit challenging the ordinance.
It is my opinion that the Fauquier County Zoning Ordinance for farm wineries, at least in part, is an invalid exercise of local authority because it exceeds the locality's delegated zoning authority and is preempted by state law governing alcoholic beverages.
— Attorney General Ken Cuccinelli
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Fauquier County’s controversial Farm Winery Ordinance, adopted a year ago, “exceeds the locality’s delegated zoning authority,” Virginia Attorney General Ken Cuccinelli said.

Mr. Cuccinelli on Friday issued an advisory opinion that the ordinance “at least in part” violates the state Constitution. (See opinion below.)

State government’s top lawyer also said Virginia alcohol control laws preempt portions of the Fauquier ordinance.

His opinion has no effect as law, however. It merely provides guidance and potential support for a legal argument challenging the ordinance.

Del. Christopher K. Peace (R-97th/Mechanicsville) requested the attorney general’s opinion.

The Republican nominee for governor, Mr. Cuccinelli also said he believes that portions of the county winery ordinance, such as those regulating amplified noise, comply with state law.

Philip Carter Strother, a Richmond lawyer and Hume winery owner, applauded Mr. Cuccinelli’s opinion.

“Here’s to the small group of farm winery owners who took a stand against the tyranny of an oppressive local government bent on the regulatory control of every aspect of the private lives and businesses of its citizens,” Mr. Strother wrote in an e-mail. “Sic semper tyrannis!” (Death to tyrants).

He and 10 other winery owners last August filed a lawsuit, challenging the ordinance. A couple of the plaintiffs have dropped out, after getting approval for special events and other aspects of their operations, which the ordinance regulates.

Barrel Oak Winery, Fauquier’s largest, earlier this withdrew its suit when the board of supervisors granted permission to continue hosting more than 190 annual “special events.” Barrel Oak established a pattern of business that preceded the ordinance adoption — critical its settlement with the county.

Attorney general opinion on Fauquier Farm Winery Ordinance by Fauquier Now

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Skypiper · August 5, 2013 at 10:22 pm
Oh My God! This family has presented the sentiment of the rural small family farmer. Perhaps BOS Schwartz and all his wealthy cronies should read this and remember when they had nothing.....the problem with the Fauquier County Board of Supervisors is they are BOUGHT AND SOLD by WEALTHY Fauquier County Board residents!..Unfortunately there are so many who make their fortunes and then forget where they came from.....this is is saddest commentary on human behavior. It should always be that those who "make it" actually help those who are trying so desperately to make a standard living. Shame on you Swartzers....YOU should be sooo ashamed.....
HumeVA · August 3, 2013 at 10:20 pm
We moved to Fauquier 8 years ago, assisted our daughter with the purchase of land and planted a small vineyard. The cost of production and our sweat equity will likely never turn a huge profit. The Fauquier winery ordinances however have assured that our investment will never produce the small farm business that we had envisioned. Though our permits and planting predate these ordinances we are now limited to constructing a winery building in the middle of our vineyard due to 300 foot the set back requirements enshrined in the repressive Fauquier winery rules. After recent tours of duty in two foreign wars my son-in-law had hoped to return to a promising future in a very green Fauquier business. Unfortunately that dream disappeared with the passage by the supervisors of the winery rules. We are Fauquier parents who had hopes of keeping our families together around a farming enterprise near to home. Fauquier supervisors who are so proud of these ordinances should be called to answer for not only discouraging green farming businesses but FAMILY farming business!! I don't support our AG on much but he has my appreciation for exposing county over reach in Fauquier. We have never looked for a hand out or special consideration. Yet mostly non farming "concerned citizens" apparently have more influence with our county supervisors than green farming business. These ordinances in their extreme detail and sanctions vest the life or death of family businesses in the hands of county bureaucrats. Rather than encourage farmers and neighbors to work together our supervisors have chosen to create detailed rules and jobs for administrators. Our taxes are paying for this over reach. When all else fails Citizens must remember this issue when next we cast our ballots.
brianroeder · July 24, 2013 at 9:42 pm
@Al....I don't know. I am just quoting VA law here...
Al Taberson · July 24, 2013 at 9:27 pm
Al Taberson · July 24, 2013 at 9:25 pm
Great synopsis brianroeder. Does the national league of cities approve of your write up?
brianroeder · July 24, 2013 at 7:10 pm
Marienmt: This is how our constitution works: Narrow Government Authority: Dillon's Rule. This is the basis for the AG's opinion. You may not like it, but it its the law of the land. As such until it is changed, it is the rule by which we all live and must decide our actions.

Dillon's Rule is derived from the two court decisions issued by Judge John F. Dillon of Iowa in 1868. It affirms the previously held, narrow interpretation of a local government's authority, in which a substate government may engage in an activity only if it is specifically sanctioned by the state government. Dillon's Rule was challenged by Judge Thomas Cooley of the Michigan Supreme Court in 1871, with the ruling that municipalities possess some inherent rights of local self-government. Cooley's Rule was followed for a short time by courts in Indiana, Iowa, Kentucky and Texas until the U.S. Supreme Court upheld Dillon's Rule in 1903 and again in 1923. Since then, the following tenets have become a cornerstone of American municipal law and have been applied to municipal powers in most states:

A municipal corporation can exercise only the powers explicitly granted to them
Those necessarily or fairly implied in or incident to the powers expressly granted
Those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable

State constitutions vary in the level of power they grant to local governments. However, Dillon's Rule states that if there is a reasonable doubt whether a power has been conferred to a local government, then the power has not been conferred.
Dillon's Rule In Practice

Dillon's Rule allows a state legislature to control local government structure, methods of financing its activities, its procedures and the authority to understake functions.

Thirty-nine states employ Dillon's Rule to all municipalities: Arizona, Arkansas, Connecticut, Delaware, Georgia, Hawaii, Idaho, Kentucky, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Vermont, Virginia, West Virginia, Washington, Wisconsin and Wyoming.

The following eight states employ the rule for only certain municipalities: Alabama, California, Colorado, Illinois, Indiana, Louisiana and Tennessee.

The only exception to the exclusive selection of home rule or Dillon's rule is the state of Florida, which employs home rule but reserves taxing authority for the state.
brianroeder · July 24, 2013 at 12:32 pm
1. Two years ago, Fauquier was the 3rd largest winery county in Virginia, now it is 5th.
2. No wineries have opened since the ordinance passed. Before then 3 on average were opening a year.
3. Since passage, 3 wineries have sold and one more has closed. Another went through bankruptcy in the months leading up to the ordinance and another is in bankruptcy right now.
4. Two investments groups seeking each to invest $7 million minimum in Fauquier to start wineries decided not to specifically because of the ordinance.
5. The Attorney General has issued an opinion that several parts of the ordinance over-reached and are illegal.
6. Every one of our family farm wineries are locally owned and operated, providing over 200 paying jobs, $900,000 in local winery paid sales tax revenues, over 1000 acres of land being used for agricultural purposes, and over $150,000,000 in tourism revenues for our community.
7. In the 4 years before the ordinance was passed, not one formal letter of complaint was served to a winery by county officials.
8. The Sheriff reported one incident involving alcohol and a winery in the 36 months preceding the passage of the ordinance.

These are facts. This is a local issue. What kind of county do you want to live in? Do you want farmers on the land or do you want them off? You decide.
Silii · July 24, 2013 at 7:35 am
Better local "abuse" than state abuse. The government in Richmond has way overstepped boundaries both in public and very personal issues. Cuccinelli will only settle this issue if he can grab and consolidate more power in Richmond. We need less state government in our lives including allowing us to deal more effectively with developers and their "by right" power afforded by Richmond.
Freedom · July 23, 2013 at 11:21 pm
Ken Cuccinelli is attacked for standing up to tyranny in Fauquier, a county that is suppose to be Republican"
Skypiper · July 23, 2013 at 10:59 pm
If Obama can render his opinion after a court case has been tried with verdict rendered, then Cuccinelli can certainly render his opinion about farming/winery rights in Fauquier County. This is not just a Fauquier issue, it has become a state and national issue relating to overly obtrusive local governmental intervention into the lives of small farmers and small business owners. Fauquier has become the center of local abuse due to the elitest attitude of members of the FCBOS. The winery ordinances are not only repressive to the owners, but the AG of our state has shed the proper perspective on this important local economic and property rights issue.
Al Taberson · July 23, 2013 at 7:37 pm
You are right marienmt. This is what richmond does best - pushing special interests and telling local governments what to do. I wonder if some of our local "land use activists" pushed for this opinion. If so, and that's the kind of political views mr. Cuccinelli caters to, then he will not get this conservatives vote come November.
Silii · July 23, 2013 at 2:42 pm
If other counties have worked things out, then why is there any discussion about Cuccinelli in the Fauquier discussion? Clearly Cuccinelli's opinion is not needed now or in the future. He is attacking local control.
nova_gjones · July 23, 2013 at 2:37 pm
There are many Virginia Counties that have vineyards. They have ordinances for wine and they don't have the friction that Fauquier has.
Philip Carter Strother · July 22, 2013 at 10:05 am
Aww you flatter me Pete. However, again, contrary to your representation below your facts and institutional knowledge are lacking. In 2009/10 we worked hard to get Albemarle County to adopt a farm winery ordinance in line with state law. Because of our work and the excellent civil servants at the County we accomplished that goal. This was an acceptable and balanced approach and outcome, and the County and wineries are now working together. Unfortunately, Fauquier County dismissed our suggestions out of hand. For Fauquier's citizens' and taxpayers' sake, we hope the county will listen to the voice of the Virginia Attorney General, which is consistent with the advice previously given to the county by the Virginia Secretary of Agriculture and the county's own assistant county attorney.
Peter B. Schwartz · July 22, 2013 at 9:20 am
Hyperbole always was your strongest suit Philip. As hard as you must have lobbied the AG for a sweeping opinion that our ordinance was unconstitutional with regard to the noise provisions, event provisions and so forth, the AG hardly wrote an opinion that is as sweeping as your sound bites would have everyone believe. And you continue to be unable to accept that the County has a responsibility to balance the needs of the winery owners, whose businesses we really do respect, with the legitimate expectations of others who share this lovely county with the wineries.
Philip Carter Strother · July 22, 2013 at 8:38 am
“At most, it describes as unconstitutional our requirement for an administratively issued zoning permit for the by-right winery activities specifically listed in the state code.” Sayth the honorable Board Member.

As a point of clarification, the Attorney General’s Opinion expressly determines that the portion of 6-401 of the winery ordinance that requires “approval of a Zoning Permit pursuant to section 13-500" is illegal. This is the core essence of the Winery Ordinance, as it relates to the fundamental purpose of zoning, which is the determination of what use goes in which location in the locality.

Below in part are the “administratively issued zoning permit” requirements found in Section 13-500 of the Fauquier Zoning Ordinance. I too would encourage anyone who is interested to read them. Among other things, the section requires that the applicant be in compliance with all provisions of the zoning ordinance, thus it loops/links back to the other 12 pages of regulatory control provisions of the winery ordinance. I.e., one can’t get the Zoning Permit unless he or she is in compliance with all the listed control regulations. These onerous regulations range from the unreal to the absurd and include such things as a football field setback requirement around the entire perimeter of the winery property, to a mandatory closing time requirement of 6pm, to things such as having winery staff training validated by the County Zoning Administrator, among other things!

An attempt is also made to minimize the impact of the portion of the AG opinion that makes it clear that in order for the other 12 pages of control regulations in the winery ordinance to apply to the wineries the County has to make specific determinations as to “the” winery, as required under state law. Thus, a locality cannot arbitrarily enact a one size fits all regulatory scheme in an attempt to stifle the growth of the wineries and the freedom of the individual property owners. All of this is hardly, “That’s a small point and a minor part of our the ordinance.” Sic semper tyrannis

13-503 Structures in Violation
No zoning permit shall be issued where it appears that the structure to be
constructed or the use contemplated would be in violation of the
provisions of this Ordinance or any other applicable law, ordinance or
regulation. The issuance of such zoning permit, however, shall not
afford protection of any other who is found to be violating this or any
other applicable law, ordinance or regulation.
13-504 Forms and Information Required
An application for a zoning permit shall be made to the Zoning
Administrator on forms to be provided by the Zoning Administrator who
shall require and be furnished with all such plans and documents as may
be required to determine whether the proposed structure and facilities
will be in compliance with the provisions of this Ordinance. Each such
application for a zoning permit shall be accompanied by the following
items or as much thereof as the Zoning Administrator deems pertinent
XIII - 23
and such additional information as the Zoning Administrator may
require as being pertinent:
1. Certificate from the Health Officer that the proposed location meets
the requirements of the Health Department from the standpoint of
water supply and sewage disposal, or where a public water and/or
sewerage system is involved a statement from the system(s)
management that all applicable regulations and requirements have
been complied with. No zoning permit shall be issued for a use to be
served by central water or sewerage system which system is not
complete, approved by proper authority and physically capable of
providing service at the time of the issuance of the zoning permit.
However, the requested permit may be issued if the Administrator
determines that any necessary water and/or sewerage system
construction and/or improvement will be complete, approved and
operational by the time the proposed structure will be ready for
occupancy. This determination will be based on the developer's
construction schedule and/or statements of the management of the
system(s) involved.
2. A grading permit if required.
3. The intended use.
4. If a dwelling, the number of families or housekeeping units.
5. A plot plan signed by the applicant drawn to scale showing
dimensions of the structure with respect to property lines and public
6. An entrance permit if required by VDOT regulations.
7. Within MU and PRD developments governed by a Code of
Development, the following additional information shall be provided
with each Zoning Permit:
a. A lot grading plan showing grading at minimum 2’ intervals on
the lot and basement floor and first floor elevations, where
b. Architectural drawings to scale showing all elevations
demonstrating compliance with Architectural requirements of
the Code of Development.
Silii · July 22, 2013 at 7:50 am
His comment shows how he flip flops. As AG and a conservative, he claims to believe in local control, less government from Richmond. Yet, he also believes in big government getting into people's bedrooms and private lives, including family planning. This man is dangerous and a control freak. He also believes in taking gifts, forgetting to disclose them, then pleading forgetfulness. This man is not forgetful and he is not to be trusted.
Peter B. Schwartz · July 20, 2013 at 3:34 pm
I suggest that anyone interested should read the actual opinion. At most, it describes as unconstitutional our requirement for an administratively issued zoning permit for the by-right winery activities specifically listed in the state code. That’s a small point and a minor part of our the ordinance. Even if the Virginia Supreme Court were to agree with this limited conclusion (which I am not sure that they would), the AG opinion specifically validates the noise provisions and the regulation of the additional by-right activities that our ordinance permits above and beyond the state law requirement. Most importantly, the opinion is curiously silent on all of the controversial portions of the ordinance regulating events. I think that if the AG had a problem with all of those provisions, he would have said so as part of this opinion. Finally, please understand that this is merely an advisory opinion. Only the Virginia courts can overturn our ordinance, and this has not happened.
Star scientist · July 19, 2013 at 7:44 pm
This probably makes jonnie Williams proud!
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