bates on yates presentation overview€¦ · bates on yates presentation overview neighborhood...
TRANSCRIPT
Bates on YatesPresentation Overview
Neighborhood Objections Presentation to VABC (20 Oct 2016)
PresentersHal Moore, Dan Voss, Jane King, Kathryn Weller, David Smith, Joe Scott
1
Introduction - Hal
• Our Understanding of the Application
• Overview of the Presentation
2
Practicality - Hal
• Grounds for Refusing a License
• Size of the Lot
3
Bates on Yates Plot
Septic Tanks
Water Well
Septic DrainField
Vines
4
Practicality – Hal (continued)
• Experience from Explosive Growth of Small Boutique Winery
• Water Usage
• Sewage
5
6
===========
Pictures taken on 12 April 2015
View looking west on Yates Ford Road, toward the driveway into Hemlock Overlook Park.
View looking south toward PSW, from driveway leaving from Hemlock Overlook Park.
The area to the left has been cleared as of 2 June 2015
The area ahead has been cleared as of 2 June 2015
7
Pictures taken on 02 June 2015
If this area had been just to open up the vineyard to sunlight as represented, why is a hard surface necessary?
8
Pictures taken on 02 June 2015A new entranceway has been built. It appears to be built for a driveway.
View looking south toward PSW, from driveway leaving from Hemlock Overlook Park.
Winery Building
9
Picture taken on 02 June 2015
Boundaries of areas cleared for parking lot shown in red.
Vineyard planted in 2007
10
Legality - Hal• Compliance with Farm Winery Act - need for
production equipment
• EPA/Stormwater Compliance
• Frustration with Enforcement of the A&F
• Unchecked Growth and Expansion
• Cease and Desist Letters
11
Peace, Quietude and Safety - Dan
• Cars Blocking Emergency Vehicle Access
• Affect on Equine Activities
12
Public roads in Clifton adjacent to the existing winery – 16 April 2016
13
Peace, Quietude and Safety - Jane
• Vehicle Safety from Dramatic Changes in Traffic Patterns Due to Existing Licenses
14
Display of Traffic Constraints
BOY
Bull Run Crossing
Bates on Yates
Picture taken from Clifton Rd where Yates Ford ends 4 April 2015
The inebriated driver of this car was coming from the existing winery, and drove onto a resident’s property after failing to stop at the stop sign at the end of Yates Ford Road. Fortunately, the driver did not hit another car.
The individuals involved in the head on collision on 6 Oct 2016 at the same location were not so lucky.
16
Peace, Quietude and Safety - David
• Road Infrastructure
17
Peace, Quietude and Safety - Kathryn
• Personal Perspective
18
Closing Remarks - Joe
19
1
I. Introduction (Hal)
Note: The printed contents of the tabbed binders presented at the hearing are contained in electronic form at a Dropbox site. (https://www.dropbox.com/sh/plpec1496tuu0cr/AAC9l28UjeRsJLzLDRTRAxzma?dl=0)
Our understanding of the application is that the applicant desires to grow grapes and sell “boutique” wine from his property near Yates Ford and Clifton Road. The lot is one of the pre-1982 Occoquan downzoning lots, and is smaller than the normal five-acre minimum established by the Occoquan Watershed downzoning in 1982 by Fairfax County. The applicant does not want to open a “wine shop” as he would have to go through the normal zoning approval process in Fairfax County. Since a commercial business of this type is not permitted under the R-C zoning regulations, the application would probably be denied. Instead, the applicant is moving forward using the “farm winery legislation” in § 15 and § 4 of the Code of Virginia to sidestep the normal zoning prohibitions. The “farm winery” legislation, beginning in 2006, removed the authority of local governments to regulate the establishment and operation of “farm wineries” under their zoning regulations, and shifted this control to the Virginia Alcohol and Beverage Commission (VABC) [Tab 1] (Attachment 24: Law Review Article on Virginia Winery Law).
As residents of the area around the location of the Bates on Yates location, several of us will be providing testimony on our struggles with the impact of existing farm wineries with reference to peace and quietude, and practical /legal aspects as they impact that peace and quietude. We have coordinated our documentation and presentations and have provided copies. We have also provided petitions from over 200 residents of the Occoquan Watershed opposing this license. We have been accompanied by several people today, who share our opposition to farm wineries, breweries, and distilleries in Clifton as they have evolved in the Clifton area.
II. Practicality (Hal)
a. Grounds for Refusing a license
The “farm winery legislation” in § 4.1-222 "Reasons for the Board to refuse a license" indicates some of the rationale for rejecting or terminating a license:
“…is so located with respect to any residence or residential area that the operation of such place under such license will adversely affect real property values or substantially interfere with the usual quietude and tranquility of such residence or residential area” ; “The number of licenses existent in the locality is such that the granting of a license is detrimental to the interest, morals, safety or welfare of the public. In reaching such conclusion the Board shall consider the (i) character of, population of, the number of similar licenses and the number of all licenses existent in the particular county, city or town and the immediate neighborhood concerned; (ii) effect which a new license may have on such county, city, town or neighborhood in conforming with the purposes of this title; and (iii) objections, if any, which may have been filed by a local governing body or local residents.”; and “There exists any law, ordinance, or regulation of the United States, the Commonwealth or any political subdivision thereof, which warrants refusal by the Board to grant any license.” In its 2009 Hearing, VABC indicated the following: “It should also be noted that the ABC Act contains sufficient safeguards to allow the continued monitoring of ABC licenses by ABC Enforcement Agents. If conditions change, or it is later determined that there is substantial interference with the peace and quietude of the neighborhood residents, disciplinary charges may be brought against the licensee.” [Tab 8] (Attachment D: 2009 VABC Hearing with Summary, Opinion Written by Clara Williamson)
b. Size of lot (Hal)
By applying under the farm winery legislation § 15 and§ 4, the applicant must demonstrate that: he has wine production facilities on his property; and that 51% of the grapes he uses in the wine he produces (there is no set minimum or maximum amount) must come from his lot on Yates Ford Road, or some other property that he owns or leases in the Commonwealth of Virginia [Tab 2] (Code of Virginia § 4.1-219 A and B), with no more than 25% being produced outside of the Commonwealth He is not required to have a minimum acreage amount, under the farm winery legislation. He is not required to produce a minimum amount of wine. However, Bates on Yates must have the full range equipment to comprise a “winemaking facility” to produce finished wine[Tab 2] (Code of Virginia § 4.1-207). The mere “positioning” of a wine barrel in his basement as “evidence of production” is not sufficient. [Tab 3] (Attachment Z 05: August 5, 2016 Meeting with VABC). These facilities must include the normal production equipment found in a standard winery, such as crushing containers, wine vats, chemistry laboratories, and bottling facilities. It is unlikely that he would have the space for such equipment in the basement of this home.
3
By comparison, PSW, which has a smaller production facility just down the road, uses approximately 5,000 square feet for its production facility. If the applicant cannot meet the requirements of the Farm Winery legislation and obtain a license under it, his facility will fall under the normal control of Fairfax County Zoning. Fairfax County Zoning has already voiced their objection to this application as being out of character with the Residential-Conservation (R-C) zoning of the area.
c. Explosive Growth from an Application for a Small Boutique Winery (Hal)
As with Bates on Yates, PSW’s original application was for a small “boutique winery” with no more than 30 cars or 80 visitors per day[Tab 9] (Attachment B: 2011 Septic Application, page 7; Attachment N: Photos of PSW Parcel in 2009). It has morphed into a massive retail and production operation, hosting 300 vehicles and 1,000 visitors at a time [Tab 10] (Attachment 8: Wineries and Breweries Septic Overload.pptx; Attachment R: Parking Lot Construction; Photos of parking area). Based on VABC’s report that PSW processed 120 tons of grapes in 2014 [Tab 3] (Attachment Z 05: 05 August 2015 VABC Meeting), PSW is estimated to be producing over 86,000 bottles of wine per year [Tab 5] (Attachment Y: Paradise Springs Wine Effluent Estimates). The traffic, illegal parking, and drunk drivers have become unbearable for residents in the neighborhoods along Yates Ford Road. Such large retail and production operations were not envisioned as part of the Occoquan Watershed downzoning. The police had to be called on 16 April to unclog a massive parking snarl that enveloped Yates Ford Road and feeder streets, preventing access by emergency vehicles. [Tab 11] (Photos of Traffic Snarl on April 2016). What would prevent a similar growth from occurring with Bates on Yates?
d. Water usage (Hal) Residents of the Occoquan Watershed depend on well water. One of the reasons for the five-acre minimum property requirement when the Watershed was created in 1982 was to provide enough room between single family residences for each home to have a well without depleting the water supply of its neighbors. Last year, an applicant for a brewery (Loud Mouth), which was occupying a lot of 15
acres, put forward a projection for beer production that would have exceeded the usage of 55 single family homes. A national geological service engineer conducted a study showing how such an added load would potentially cause the wells of neighboring properties to run dry [Tab 19] (Attachment 20: Water Resources Report; Attachment 27 Water Table Depletion Information; Response from Virginia Department of Health (Safe Drinking Water-Mr. Eggborn). The head of the Virginia department responsible for approving commercial wells, Mr. Eggborn, has confirmed that there is no legal requirement to ensure that an approved well not endanger the well-water supplies of neighboring properties. While it is not clear that Bates on Yates would engage in the same projected production level, wine production and visitor loads will create the need for more water usage than a traditional single family home. What impact will this usage have on neighboring wells, given the close proximity of BOY’s wells to those of neighborhoods and the smallness of the lot?
e. Sewage (Hal) To meet the added visitor loads, Bates on Yates will need to increase the capacity of the septic field to accommodate additional visitor loads. The current Occoquan Watershed standard is designed to require five acre lots as the minimum necessary to support the septic and well water demands of the average family of four. The typical septic field for Clifton area homes has a daily capacity of 500-750 gallons per day. Well water uses are typically in the range of 250 gallons per day, assuming no lawn watering [Tab 4] (Attachment A: Dept. of Health and PSW Exchange 2008, Attachment B: 2011 Septic Application, and Attachment 8 Wineries and Breweries Septic Overload). Bates on Yates will require expanded septic and well water space to support additional patron loading. However, the lot, because it was created prior to the 1982 downzoning, is between one and two acres, so there is no capacity to spare that is not already dedicated to the existing building, well, septic, and vineyard.
Bates on Yates would not be exempt from sanitation or Clean Water Act requirements. It must have a septic system robust enough to handle estimated visitor loading. It also may not dump wine production effluent directly on the ground or into the septic system [Tab 5] (Attachment P: Response from EPA Indicating No Alternative Installed Systems at PSW; Attachment Y: Paradise Springs Winery Effluent Estimates; 21 July 2015 Response from EPA; Virginia DEQ Response 23 September 2015; Attachment 33: Loud Mouth Brewery: the Facts-Waste Water section). Wine effluent is considered to be one of the most noxious forms of water pollution, because its oxygen and chemical constituents act as a “super fuel” for algae and pathogens. [Tab 6] (Attachment X: Articles on Winery Wastewater). There are approximately four types of systems considered suitable for treating wine effluent. This system will need to be larger and more complex than a septic system. [Tab 7] (Responses: DEQ response 24 July 2015). The property simply does not have the space for this type of additional infrastructure.
5
PSW failed to comply with a directive in 2009 from Fairfax County in that it not use a 1950s era septic system for Paradise Springs Winery. PSW defied this directive until the construction of his new septic system in 2011. [Tab 4] (Attachment A: Dept. of Health and PSW Exchange 2008, Attachment B: 2011 Septic Application, and Attachment 8 Wineries and Breweries Septic Overload). VABC does not consider the violation of local directives to be a factor in determining whether a license should continue. The peace and quietude of the neighbors have been disturbed by septic overflow alarms that go off on weekend mornings until winery workers arrive to shut them off. The septic system is designed to support a residence with 20 people present. Fairfax County believes that he is having the system pumped out repeatedly through the week. However, there has been no closer examination by Fairfax County that this pumping out is indeed taking place. [Tab 14] (Responses: Discussion with Fairfax County Dept. of Health – Adrian Joye; 21 July 2015 from EPA-David McGuigan; DEQ Response 23 September 2015; Response from EPA Indicating No Alternate System Installed at PSW; Response from VA DEQ on EPA compliance of 6 Oct 2016). If this license is approved, Bates on Yates will be unrestricted in the number of patrons visiting the site each day. Fairfax County would have no control of visitor numbers and traffic. Bates on Yates would be permitted to sell wine produced by other vineyards, under a Bates on Yates label. [Tab 3] ((Attachment Z 05: 05 August 2015 VABC Meeting). PSW, during its first two years of operation, sold wine produced by Pearmund Cellars that had a PSW label on the bottles. Because Bates on Yates would be considered a “farm” under the State Uniform Building Code (SUBC), it will not be subject to building safety, structural, fire code, or electrical safety inspections. It may conduct all of the events permitted under the farm winery legislation, which include events, wine tasting, and weddings. Some activities, such as “helicopter rides”, are prohibited. [Tab 13] (Attachment W: Review of Farm Building Exception to SUBC).
III. Legality
a. Farm Winery Law Requirements (Hal)
“Bates on Yates does not comply with the requirements of the Farm Winery legislation with respect to “wine production facilities”. By applying under the farm winery legislation § 15 and§ 4, he must demonstrate that: he has wine production facilities on his property; and that 51% of the grapes he uses in the wine he produces (there is no set minimum or maximum amount)
must come from his lot on Yates Ford Road, or some other property that he owns or leases in the Commonwealth of Virginia [Tab 2] (Code of Virginia § 4.1-219 A and B), with no more than 25% being produced outside of the Commonwealth He is not required to have a minimum acreage amount, under the farm winery legislation. He is not required to produce a minimum amount of wine. However, Bates on Yates must have the full range equipment to comprise a “winemaking facility” to produce finished wine[Tab 2] (Code of Virginia § 4.1-207). The mere “positioning” of a wine barrel in his basement as “evidence of production” is not sufficient. [Tab 3] (Attachment Z 05: August 5, 2016 Meeting with VABC). These facilities must include the normal production equipment found in a standard winery, such as crushing containers, wine vats, chemistry laboratories, and bottling facilities. It is unlikely that he would have the space for such equipment in the basement of this home. By comparison, PSW, which has a smaller production facility just down the road, uses approximately 5,000 square feet for its production facility. If the applicant cannot meet the requirements of the Farm Winery legislation and obtain a license under it, his facility will fall under the normal control of Fairfax County Zoning. Fairfax County Zoning has already voiced their objection to this application as being out of character with the Residential-Conservation (R-C) zoning of the area.
b. EPA/Stormwater(Hal) PSW has violated the Clean Water Act by dumping wine effluent on to the surface of the ground since production began at the facility. PSW has been told by the federal EPA and Virginia DEQ that it must develop an alternative system, but it has yet to construct one, which it recently installed. Wine effluent is considered to be one of the most noxious forms of water pollution, because its oxygen and chemical constituents act as a “super fuel” for algae and pathogens. [Tab 14] (Responses: Discussion with Fairfax County Dept. of Health – Adrian Joye; 21 July 2015 from EPA-David McGuigan; DEQ Response 23 September 2015; Response from EPA Indicating No Alternate System Installed at PSW; Response from VA DEQ on EPA compliance of 6 Oct 2016). VABC does not consider violations of EPA regulations as being a factor in determining whether a “farm winery” may continue with its license. How would this pollution be regulated, given our experience with PSW? PSW has failed to obtain storm water permits and is under a “stay” from Fairfax County DPWES for a parking lot that was constructed last year. It is unknown if PSW obtained a storm water permit for the construction of a “tool shed”, which appears to be a three story 5,000 plus square foot building complete with windows, insulated walls, central air, heat, and bathrooms. [Tab 15] (Responses: DPWES (Storm Water Response) 23 September 2015). VABC does not consider violations of storm water regulations to be a factor in reevaluating a license. How
7
would such “improvements” be regulated for Bates on Yates, given our experience with PSW?
c. Frustration with government enforcement (Hal) The farm wineries in Clifton have only a patina of agriculture associated with them. Only 4 of the 120 tons of grapes processed each year are grown on site. It is effectively a “rural speakeasy” and “wine production center.” Although 51% of those grapes are supposed to come from land owned or leased by PSW’S owner, VABC ‘s Agent Kelly will not state that she has checked the shipping documents to verify the pedigree of PSW’s source grapes. VABC prefers to “trust” farm wineries, especially since their limited staffing never envisioned having them function as a “zoning authority [Tab 3] (Attachment Z 05: 05 August 2015 VABC Meeting) and verifying grape invoices from many different sources. PSW has failed to adhere to its Agricultural and Forrestal (A&F) Agreement for the property. In exchange for significant property tax reductions, the applicant agreed to not allow the property to be “more intensely developed.” In 2015, PSW constructed an “overflow parking lot” by downing five acres of trees. The ostensible reason for the downing of the trees was to “provide more light for his grapes.” But the trees felled were not projecting shadows on to the small plot that PSW has dedicated to vines. In 2016, PSW has constructed a “tool shed” that appears to be another event center. As with the parking lot, the new event center does not comport with the requirement to not “more intensively develop” the property. In addition to the new event center (begun in Spring 2016), PSW constructed a red “barn” structure between the old cabin and the new parking lot (removing some vines) between July 2015 and Spring 2016. [Tab 16] (Attachment K: Establishment of Kincheloe A&F on 10 July 2013; Attachment U: Possible A&F Violations by PSW). VABC considers this to be a violation of a local contract with County authorities, and does not influence considerations to revoke a license. Although the Fairfax County head of Zoning and Planning has denied it, his duty staff confirmed in 2015 that the rear parking lot behind the event/production center intrudes on a Resource Protection Area (RPA) under the Chesapeake Bay Protection Act. It is believed that, as a farm winery, PSW did not have to go through the normal construction/ zoning vetting process, which would have detected the problem. Therefore, the normal compliance checks did not occur before the parking lot and event center were constructed. [Tab 10] (Attachment 8: Wineries and Breweries Septic Overload.pptx; Attachment R: Parking Lot Construction; Photos of parking area). [Tab 17] (Attachment 26: Regulations Under the Chesapeake Bay Ordnance; Attachment 35: Ches Bay Resource Protection Areas). Again, VABC’s enforcement representatives do not believe
that violations of environmental laws should be a factor in determining whether a winery license should be revoked or limited.
d. Unchecked growth/expansion (Hal) In meeting with Mr. Shawn Walker and Agent Katie Kelly last August, many of us were disappointed to learn that VABC would not consider any of the concerns listed above in determining whether to terminate or modify a license. Only a request from the Fairfax County Board of Supervisors to terminate or restrict the license of a winery or brewery will influence VABC, and not such a request is guaranteed to be granted. [Tab 3] ((Attachment Z 05: 05 August 2015 VABC Meeting). The Fairfax County Board of Supervisors and the Town Council of Clifton have recently opposed new licenses for PSW under the guise of “Silent Road Winery and Brewery. [Tab 18] (Letter from Clifton Town Council; note from Supervisor Pat Herity). Given the history of VABC’s management with PSW, I believe that it is possible for Bates on Yates to metastasize into something more malignant than a “small boutique winery.” In a conversation in June 2016 with Agent Kelly, she indicated that she told the applicant in May that there were a number of objections to his license application. She asked if the applicant wanted to withdraw it and replace it with another application that places some limitations on the size and scope of Bates on Yates, such as maximum visitor loads. He declined her offer. He would have to withdraw his previous application and submit a new one. But a “new” application would be refused, as it occurred after the 1 July 2016 cutoff date for new applications in an area zoned R-C under the modifications to the winery law. Approving the applicant’s license in its current form would empower Bates on Yates to undertake the same scope as has occurred with PSW.
e. Cease and Desist Letters (Hal)
Communication between farm winery applicants such as Bates on Yates and Paradise Springs Winery would have the opportunity to create situations that might reach mutual understanding. Instead, the applicants in the Occoquan Watershed have tried to use the Farm Winery legislation to bulldoze their way in. Instead of working with his neighbors, PSW has sent threatening “cease and desist” letters to residents perceived as questioning or speaking up on winery and brewery issues in any capacity [Tab 12] (Responses: Cease and Desist Letter to
9
Hal Moore from Phillip Strother). It has been estimated that these letters have been sent to over 30 residents of Clifton since 2009. They are almost completely identical, although in late 2015, he began using a different attorney. He has refused mediation attempts from the Fairfax County Police department between the winery and neighbors. He has taken advantage of an exemption to the State Uniform Building Code (SUBC) that excludes “farms” from having to comply with structural, fire safety, and electrical safety regulations for any structure deemed to be a “farm building.” He has built a production and event center hosting thousands of visitors and workers each day, with none of the current safety inspection processes designed to stop another “Triangle Shirtwaist Fire.” [Tab 13] (Attachment W: Review of Farm Building Exception to SUBC; Responses: 20 July 2015 Response from TRB). Like PSW, the Bates on Yates applicant has cut off communications with concerned with the application and is focused on “ramming the approval through.” What guarantees do the local residents have that BOY will not represent exactly the same experiences and problem set that they have experienced with PSW? I will now transition to Dan Voss who will speak to several peace and quietude issues.
IV. Peace and Quietude
a. Public Safety and Equine Enjoyment (Dan) We wish to express to you our objections to the application for a winery license for the Bates on Yates, LLC at 12211 Yates Ford Road in Clifton, Virginia. My wife and I are 25 year residents at our current address which is less than one half mile from the proposed farm winery and object to this commercial entity located in our residential conservation zoned area. This proposed facility at a residential home is located at the intersection of two two- lane tree lined country roads (Yates Ford and Clifton Roads) with no safety shoulders. The lot is less than two acres in size, most of which accommodates the house, the septic field, well and some grape vines. Therefore there would be very limited parking space to accommodate visitors (see PPP slide4). The establishment will have no control over the overflow parking that will occur on the edges of Clifton and Yates Ford Roads from the visitors that the winery would attract. The winery will result in cars parking such as to block or constrict passage on these roads causing a public safety hazard. This is what happened at the existing winery on the other end of Yates Ford Road which is not a through road. (See the picture of the road leading to the Paradise Springs Winery PPP slide 13). This potential blockage would present a catastrophic safety situation if emergency and police vehicles could not pass. Our past personal experience has been to have
ambulances and fire trucks visit our neighborhood and are frequently on Clifton Road. Such a blockage could have been tragic for our community. These vehicles’ access is imperative and cannot have a blockage as shown in the pictures tolerated. Another personal note is that the greatly increased traffic on the Yates Ford Road section headed to the existing winery has presented such a safety hazard that my wife and other equestrians can no longer ride their horses safely to Hemlock Regional Park at the end of YFR. Furthermore that winery’s visitors park in the park’s trailer parking area such that riders can no longer trailer their horses to the park. The BOY proposed winery would add traffic to the other section of Yates Ford Road that she and other riders now use to access local bridle trails to the detriment of their safety. It should be noted that when Fairfax county created the legislation and zoning (R-C) in 1982 that formed the Occoquan Watershed in the Clifton and surrounding area, Virginia was trying to encourage the equine industry. As result, the 116 property owners associations (POAs) in the Occoquan Watershed have significant language in their covenants discussing the rights of home owners to keep horses and use bridle trails in these communities. The added hazard of winery attracted traffic on these country type roads would adversely impact area real estate values in a county that has few allowable horse properties and would be detrimental the quality of life, quietude and tranquility for this local equestrians and the community at large. We strongly urge the board to deny this license application in its entirety.
b. Traffic (Jane) Good afternoon. My name is Jane King and, despite the accent, I am a US citizen and a registered voter. For the last 28 years I have lived in the Clifton Hunt sub-division, off Henderson Road, just under a mile to the SW of the Bates on Yates site, on the roads that take commuter traffic out of Fairfax County. Although we are now aware the location has a Grandfathering Exception in the Zoning Ordinance, it remains a 1.87 acre residential site, surrounded by other single family homes, wedged between two busy Clifton-area roads that the applicant acknowledges are already overloaded with local traffic and Prince William County commuters. The commuter traffic that passes by the subject property moves on and much of it heads my way to Old Yates Ford Road and the bridge across Bull Run. The only other crossings are a bridge 7 miles to the north or one 12 miles further south. It seems the term “quietude and tranquility” is to be considered a relative one but licensing a farm winery at 12211 Yates Ford Road is going to substantially increase traffic in this residential area and affect its “usual quietude and tranquility,” as cited in the Board’s Hearing Notice. Unfortunately, the traffic and number of residents in the pertinent zone will not be returning to their 1941 levels any time soon.
11
Since I now find myself one among many living within a 2-mile radius of all four of Fairfax County’s existing, and pending, alcohol farm licenses, my main objection to this license falls under Section 4.1-222.3* of the Code of Virginia, also cited in the Board’s Hearing Notice, with an emphasis on the public safety aspect of extra traffic on these rural roads that do extend significantly beyond the boundaries of the subject property. Along the 10 miles of Clifton Road (VA-645) that run between Route 29 to the North and Route 123 to the East, there are only 11 businesses that are accessed directly from it - and 7 of those are in the Town of Clifton. All the other properties that border the road are private residences. The double yellow lines down the entire length of Clifton Road are a clear indication of the type of road it is and they often become invisible as it rises over blind hills and curves around blind bends. The bikes and motorbikes that share this road present an additional hazard, both as solo riders and groups, like the 12 twelve bikers on a Poker Run turning onto Henderson Road or the group of cyclists joining the road from Twin Lakes that I encountered as I drove to the grocery store on Saturday morning. They are legitimate road users and drivers must respect their presence and lack of speed. Then, four times a day, school buses pick up or drop off school children, some of whom must cross the road to reach their homes. This being a rural road, we also have deer, tall trees with shallow root systems and areas where storm water collects or flows downhill along the path of least resistance. Regular road-users know where the danger spots are but still have to remain alert. For their own safety, local residents approaching driveways or sub-divisions put their turn signals on much earlier than is necessary. Drivers who are unfamiliar with our roads are always easy to spot. They’re either driving too slowly or may stop suddenly in unexpected places, seeking specific addresses. Such actions disrupt the usual flow of traffic and occur too frequently even now, before another farm winery appears on the map. These roads are not just busy during the morning and evening commute. They are in constant use every day of the week and the volume of traffic has steadily increased over the decades I’ve been in the area. Driving home nowadays, it is not unusual to turn off Clifton Road onto Henderson and almost immediately join a line of traffic that stretches all the way down to my sub-division and beyond. That final part of my journey can sometimes take as long as it took from my workplace in Chantilly. And getting out of my street after that means relying on a courteous commuter to let me through. This is the reality of living close to Clifton Road, where the estimated thousands of cars travel daily, yet somehow not being a close enough neighbor to the farm winery premises to be impacted in terms of traffic, noise, property values, or otherwise. There are only two ways to reach this proposed farm winery: either directly from the eastern portion of Yates Ford Road with a left turn onto the property (shown in dark blue on the map on Page 15 of the Bates on Yates Presentation Overview), or by turning off Clifton Road onto Yates Ford and immediately right onto the property. The sight-lines along Clifton Road are poor in either direction at this
turning because this end of Yates Ford Road intersects with it at an acute angle, at the apex of a long, blind bend, complicated by a change in elevation and then, having reached the destination, there is nowhere to go except down the short private driveway visible on the aerial view on Page 4 of the Presentation Overview. Vehicles stopping suddenly at the entrance, while a driver tries to figure out where to park, will be an unexpected hazard for other road-users. This eastern segment of Yates Ford Road is the property’s northern boundary and the applicant seems fully aware of its history as a heavily used cut-through between Chapel and Clifton Roads. The residents insisted that the existing speed bumps be added when the County upgraded it from a gravel road to a paved one, but those bumps can only affect the speed, not the volume of traffic that uses it to join Clifton Road or visit a winery. Accommodating any extra vehicles will only add to the traffic woes of the current residents and commuters, with or without any additional calming measures. Reaching Clifton Road from points west, via the Bull Run bridge, requires either a right turn at the Henderson Road T-junction (shown in pink), or an earlier right turn onto Maple Branch Road, followed by a left turn where it joins Clifton Road at a different T-junction (shown in green). Maple Branch Road effectively creates a triangle with Clifton and Henderson Roads making it another heavily used cut-through, which, like Yates Ford, also had speed bumps added in an attempt to reduce traffic speed. Turning left at the T-junction where Maple Branch meets Clifton Road involves stopping on an upward slope and looking round a raised, overgrown bank on the right for oncoming traffic. Experienced, local drivers know to stay back several feet to avoid being hit by drivers turning in too fast and cutting the corner. But in that position, you become as invisible to those turning in as they are to you. It is a difficult turn to execute safely and accidents do occur there. A car turning across the path of motorcyclist caused a fatal one in June 2013. The right turn from Henderson has a grassy bank and two telephone poles obstructing the view and these are only two of the five poorly-sighted T-junctions within a linear mile of this proposed winery. In the last two weeks I have driven past two accidents on Clifton Road; one at the Yates Ford Road junction around 8:00pm on Thursday October 6, 2016 and the other near the Clifton Oaks pipestem around noon on Tuesday October 11, 2016, in bright sunshine. Police were at both scenes and the midday one also had EMS vehicles in attendance. It is a challenging road for unprepared drivers to negotiate at any time of day, even if they haven’t come out for some wine tasting. Major accidents frequently disrupt traffic at the southern point of the traffic triangle too, where Maple Branch meets Henderson. In the early evening one line of commuter traffic feeds from the left into the backed up traffic heading across Bull Run. The lights at Davis Ford Road, 3 miles down the road, are causing this backup. Earlier this year Police, Hazmat and fire crews had to shut down the roads leading to this intersection for about 5 hours when a truck laden with pool chemicals caught fire. It was during peak travel time and caused traffic chaos. I had to park in a nearby sub-division and finish my own journey home on foot.
13
Many minor, usually unrecorded, accidents also occur here and nearby residents are used to removing debris from the road or their own front yards. This is my neck of the woods and these particular roads are my route to anywhere so I have no choice but to drive them on a daily basis. Along with many others living in the sub-divisions on the western edge of Fairfax County, I find these unlit roads-without-shoulders dangerous enough to be on without inserting even a few distracted, possibly inebriated, strangers into the mix in a way that can only be viewed as “detrimental to the . . . safety . . of the public.”* Other testimonials will inform you about how the area’s existing farm winery has brought mayhem to the residents of the narrow, dead-end road that leads to it and how one man’s portal to paradise has become a neighborhood’s gateway to hell. The dated photos included in the Presentation Overview (Pages 13 & 16) have documented the types of incidents the excessive or inebriated traffic causes on its way to and from those premises. Having this type of traffic on the busy thoroughfares that surround the subject property is going to contribute to the traffic-related public safety issues that I am concerned about. Because there is an existing farm winery in the area, and two other farm alcohol licenses pending at the same address, along with fifteen other locally active licenses, Section 4.1-222.3* of the Code of Virginia is relevant to this application. In addition to the safety concerns I have expressed, please consider (under Item (i)) how profoundly the “character of, [and] population of, . . . the immediate neighborhood concerned,” will be affected and also take into account (under Item (iii)) the number of written and electronic objections “filed by a local governing body or local residents” before this hearing was scheduled. Our present-day Residential-Conservation district does not need a second farm winery operating in the area and subjecting the residents and other road users to the safety issues that will ensue, so I thank you for listening to my objections and respectfully request that you refuse to grant this license, even if it does deprive Clifton of any brand competition for the local monopoly that exists today. *3. The number of licenses existent in the locality is such that the granting of a license is detrimental to the interest, morals, safety or welfare of the public. In reaching such conclusion the Board shall consider the (i) character of, population of, the number of similar licenses and the number of all licenses existent in the particular county, city or town and the immediate neighborhood concerned; (ii) effect which a new license may have on such county, city, town or neighborhood in conforming with the purposes of this title; and (iii) objections, if any, which may have been filed by a local governing body or local residents.
c. Road Infrastructure (David)
Good afternoon. I am David Smith and live on Evans Ford Court, approximately 1 ½ miles from the proposed winery. My colleagues here today are armed with a host of data regarding the legality of the proposed winery, the safety problems caused by the current winery on Yates Ford Road, accidents, congestion of roads to and from the winery, parking problems, inattention to narrow, curving, and hilly roads by people not familiar with this part of the County. I would like to emphasize a different perspective—the general roadways in this neighborhood—Henderson Road, Yates Ford Road, Maple Branch, and Clifton Road which all come together at or near Bates on Yates, plus Kincheloe Road which is nearby, intersecting with Yates Ford Road. My wife and I moved to Clifton in 1969—now approaching 50 years ago. At that time, we had the very same roads as we do today. Yates Ford Road has been and continues to be 17 feet wide and without stripes or shoulders. There has been no widening of this or other roads; there has been no straightening of the “U” curves or blind hills. There have been no new roads built. There are no sidewalks or shoulders built to handle pedestrians, bicycles or the frequent need to try to safely pass another car, large bus, or trash truck. In the past few years we have seen an overwhelming increase in traffic on all of these roads. There are now over 10,000 cars each day, each way coming from Prince William County on Henderson, Maple Branch, and Clifton Roads to and through the Town of Clifton—this traffic passes directly in front of Bates on Yates. There are some 30,000 school children bused each year over these same roads to Hemlock Overlook Park at the end of Yates Ford Road. Fairfax Police have reported that there are some 4,200 automobiles each week that drive on these same roads to the Paradise Springs winery, also at the end of Yates Ford Road, with some daily totals reaching 1,300 cars on a weekend day. There are 6 soccer fields at the end of Kincheloe Road that are fully occupied on weekends and some weekdays as well. These soccer fields must be accessed via Clifton, Yates Ford, and Kincheloe Roads. We have the same road infrastructure now that we had 50 years ago, but it is now strangled with the many new demands with no improvements. Our safety on the roads is at risk, and our tranquility and quietude is being lost. This is a residential area—let’s keep it that way and protect our safety. The application for a winery license for Bates on Yates should not be approved.
d. Personal Experience from Existing Winery Licenses (Kathryn)
15
My name is Kathryn Weller. I live at 13012 Yates Ford Road, about 1.6 miles from Bates on Yates, and about half a mile from Paradise Springs Winery, on the portion of Yates Ford that comes to a dead end at Hemlock Overlook Park. At an ABC hearing in 2009, I listened while my neighbors cautioned that a farm winery would devastate a quiet suburban neighborhood. Their warnings were ignored. Paradise Springs got its license, and quickly grew far beyond the small scope of operations that had been promised. My community has paid a high price for its success. When I moved here in 2002, I walked along Yates Ford Road almost every day, meeting lots of neighbors doing the same. Kids had fun on their bicycles, and horses were ridden down to Hemlock Park. But now -- as documented by VDOT and the Fairfax County police -- the volume of traffic has tripled. With as many as 1,400 vehicles a day going by our homes, all these peaceful ways of enjoying our neighborhood have been lost. Before Paradise Springs opened, there were only four road signs on Yates Ford Road between Kincheloe Road and Hemlock Park. Today, there are 48. The addition of 44 warning and directional signs is a measure of the changes we’ve had to endure. It’s not residential growth that’s responsible. No new homes have been built here for years. It’s the winery that’s really changed our once quiet and tranquil neighborhood. I’ve lost some good friends because of that change. Three families who’d lived on Yates Ford Road for a long time have now moved away. Of course, not everyone wants or can afford to that -- and indeed, why should they have to leave their homes? I have had to live near a farm winery for seven years, and that’s what makes me so concerned about the impact Bates on Yates could have on adjacent neighbors. I’m also worried that having two wineries so close to one another will bring even more traffic through my own neighborhood. All this has caused my husband and I to realize, we too must find a new place to live. With deep sorrow, we feel we have no choice but to move. A farm winery just doesn’t belong in a suburban residential neighborhood. That’s what we said in 2009, and now, seven very difficult years later, I’m saying it again. Please don’t turn another Clifton neighborhood into a parking lot for a farm winery.
V. Conclusion (Joe)
I would like to say something about those of us who spoke today. We are not politicians, we are not lobbyists, we are not lawyers, and we are not orators.
We are the people who live in Clifton, we drive on the roads every day, we deal with the increase in traffic, the speeding and the illegal parking, we pick up the garbage, and we endure the noise. We are the folks who used to enjoy going for walks and bicycle rides on our streets, and who used to enjoy quiet evenings on our decks and porches. We respectfully request you strongly consider our concerns and objections since everything you have heard is based on our actual day to day experiences dealing with an existing winery in our area. Please understand that we already face enough challenges trying to maintain our quietude and tranquility, and do not need another winery to further compound the situation and further degradate our property values. And let us all not forget the white elephant in the room and acknowledge that if everything we are saying is not true, the laws relating to the establishments of these types of enterprises would not have been changed. These people are not against wineries – they just do not belong in residential neighborhoods. In closing, I would like give you these petitions signed by over 100 more residents in the area who are opposed to the granting of this license for the reasons stated here today.
Bates on Yates VABC Hearing, Leesburg, VA 20 October2016
At the Bates on Yates (BOY) hearing yesterday, we had about 30 concerned Clifton residents show up for moral support. I was very surprised. I was only expecting at the most about 4 or 5 people on top of the six speakers. That level of support was overwhelming and greatly appreciated. Although we had expected an attorney from the County (Laura Gori), we were not expecting anyone else. What a surprise to see the Fairfax County Zoning Administrator, Leslie Johnson. She was also joined by Donna Pesto, who has been working on the Farm Winery, Brewery, and Distillery Zoning Ordinance. It demonstrated senior level engagement and support. They all stayed for the entire session, until it ended at 2030. The hearing officer was Clara Williamson. She was the author of the decision in 2009 granting PSW its license. We did not start until late. The second B-Chord Brewery hearing was scheduled in the morning and went late. The B Chord applicant lost the first application hearing in June, based on peace and quietude. Since that area of Loudon is not zone R-C, the applicant found a new site a short distance away and resubmitted the application. BOY was originally scheduled to start at 1300, we did not start until 1400. The county went first with BOY on cross-examinations. Arguments made by BOY:
• Even though the lot is 1.86 acres, the 1982 Occoquan Watershed downzoning “grandfathered” existing lots to have the same privileges as the post 1982 five acre plus lots.
• St. Claire Williams, in the Zoning Administration office, sent a note to Mr. Farmer on 30 April 2015 telling him that there were no issues with him having a farm winery.
• Mr. Farmer made investments and other preparations (production equipment, incorporation) in 2015 based on Mr. Williams’ note.
• FFX County (Leslie Johnson) did not express its disapproval of BOY until May 2016, after “appearing” to approve in 2015.
• There is a long tradition of agriculture for the BOY lot. Arguments made by the County:
• The definition of “agriculture” in Fairfax is tied to a separate “definition” that is apart from and applies to all categories of zoning in the County. It is specifically tied to “five acres”. It is a construction that is completely independent of the R-C zoning, the 1982 Occoquan downzoning grandfathering scheme, and the Farm Winery legislation.
• The County challenged the assertion that agriculture has always been long associated with that lot. David Smith later asserted that he witnessed a period between 1969 and 1975 when there was no agricultural activity at the lot. It appeared to be abandoned.
• Mr. Williams indicated that he had no authority to rule on zoning. He was only trying to explain to Mr. Farmer his prerogatives under the Farm Winery legislation. Ms. Johnson knew nothing of his note to Mr. Farmer.
• Leslie Johnson testified that she had never met Mr. Farmer and knew nothing about his proposed farm until she became aware of his application to the VABC on 9 May 2016, which led to her disapproval letter. Mr. Farmer later admitted that he had met with others in her office,
Bates on Yates VABC Hearing, Leesburg, VA 20 October2016
and not Ms. Johnson personally. His initiation of communications was apparently a “drive by visit” that did not involve subsequent follow-up.
• Leslie asserted that the proper step for Mr. Farmer after being denied permission by the Zoning Administrator was to have taken the case within 30 days to the BZA. He never took it to the BZA. The implication was that Mr. Farmer wanted a VABC Hearing Officer to rule on a Zoning Ordinance issue instead of the constitutionally appointed Board of Zoning Appeals, which is an agent of the Circuit Court. In many zoning cases, the County (Zoning and Planning) and the Circuit Court (BZA) are often at odds with one another.
• What seemed like an interminable amount of time was spent on the Laura Gori trying to cast aspersions on Mr. Farmer’s assertions of “I submitted all of the due diligence required documents in a timely fashion and the County gave me the go ahead.” There was much discussion on the time of submission of a package at the Herrity Building in 2015 that led up to the St. Clair Williams Email.
After completing the County’s objections and the BOY counterarguments, the Clifton Residents had their turn. Individuals who had early on volunteered to speak were Dan Voss, Jane King, David Smith, Kathryn Weller, and me (Hal Moore). Those names were submitted to the VABC in August as the speakers. We had met repeatedly and exchanged versions of our narrative testimonies between August and October. We coordinated a composite narrative testimony and summary PowerPoint presentation. The testimony narrative was supported by 20 “tabs” in a binder consisting of reference documents, totaling over 300 pages. The Hearing Officer wanted a single interlocutor for our group and the other speakers asked me to step up. Prior to the meeting, we were told that we needed to have three copies of detailed references to back up any of our points. We were not told that we needed to provide a copy of these binders in advance to anyone. We were told that although the hearing officer was not a judge and that the normal evidentiary rules of a court did not apply, the VABC hearing officers wanted to have the comportment of a court proceeding. We were told that we might need to cut our speaking time to two minutes per person. We explored the option of having additional members speak about their concerns over the issue, but this idea was nixed at the beginning of our testimony. When we arrived, I attended the end of the B-Chord hearing. I discovered that there seemed to be no time limits on the speakers, even though they were going over their time limit. The Hearing Officer told me later that the VABC should never have scheduled two controversial proceedings on the same day (B-Chord II and BOY). I had hardly started my introduction and the passing out of our exhibits when the Hearing Officer made me start dancing. Her statement that “You don’t expect me to deny approving a license for Bates on Yates, based on what has happened at Paradise Springs Winery” caused me to panic. The thought that passed through my mind was ….
“Of course we expect you to take what has happened with Paradise Springs Winery into account. You decided the case that granted the license permitting Paradise Springs Winery to go into operation. In your finding, you indicated that we concerned Cliftonites should not worry about the small boutique winery of Paradise Springs Winery. If PSW got out of hand, you would have the capacity to bring it back into control. It went out of control, and VABC did nothing about it. Second, Section 4.1-222 of the Code of Virginia enjoins you to take into account the
Bates on Yates VABC Hearing, Leesburg, VA 20 October2016
existing licenses in a neighborhood and use the impact of those licenses to inform your decision in granting a license. I am amazed that you the gall to ask me that question.”
If I had said what I actually felt, the hearing officer would have shut us down. Something more diplomatic came out of my mouth; although I don’t remember what I actually said. All that mattered to me, is that we were able to move to the next stage of all of the speakers making their points. My thanks to Kathryn Weller and Joe Scott who kept poking me in the ribs to keep us on course. The next problem that we had to overcome were the objections of Brandon Murrill, counsel for Bates Farmer, that he had not had time to review our binder of references. I responded that we were not informed of the requirement to present documents in advance. Moreover, we had only seen the BOY objection packet a few days prior. We were able to reach a compromise, where we agreed to recess for 30 minutes to discuss what items to include. When I developed the attachments over the previous three months, I followed Agent Kelly’s direction that we needed to have detailed references backing up any assertions that we were making. As a result, there was a lot of material. I began by deleting the most tangential documents as Mr. Murrill and I began to go through the package. For example, I had printed out the State Uniform Building Code (SUBC) in its entirety. That was removed from the binder, as did a law review article written by Phillip Stroether on the Farm Winery law. However, we kept 90% of the attachments as exhibits that pertained to our core arguments. Most importantly, our testimony narratives remained included as accepted exhibits. I think that the Hearing Officer and Mr. Merrill were glad that we were willing to compromise. I was relieved to be able to keep the bulk of what I thought was important. After we finished our presentations and cross examinations, Agent Kelly spoke. She pronounced that VABC was “neutral” in its position on whether to grant BOY a license, which I thought said a great deal about VABC’s interest in protecting the interests of the community. I wonder if she intentionally withheld that we needed to submit our materials in advance to the BOY. She also revealed that PSW has several different VABC licenses, which I did not know. For example, in order to sell the wine produced at PSW to distributors or other buyers (other than visitors to the winery), they have to have a separate license from the normal Farm Winery license. The hearing ended around 2030. The hearing officer has a goal of rendering a decision within 30 days. I don’t have a strong sense of what will happen. I think that the County took a lot of missile hits. Mr. Merrill made it look as though Leslie Johnson doesn’t have control over her department, with the St. Claire Williams email being the star attraction. On the other hand, I think that the County made some good jabs at Mr. Farmer. I thought that the key winning argument was that in response to Leslie’s letter of May 2016 saying “No” to BOY, Mr. Farmer should have appealed the decision to BZA, which is the prescribed path for such appeals. Instead, he brought the argument to the VABC. Even if I were a VABC hearing officer disposed toward favoring the winery industry, and willing to ignore the concerns of winery neighbors, I would be very reluctant to wander into the quicksand of ruling on issues traditionally reserved for the Circuit Courts-BZA. I think that the BZA appeal issue will be the key issue of the decision.
Bates on Yates VABC Hearing, Leesburg, VA 20 October2016
Leslie Johnson’s presence at the meeting was encouraging. I knew that she had opposed the original PSW license. I knew that when some of the “problems” started occurring with the small boutique winery known as Paradise Springs began cropping up, she brought them up with the Board of Supervisors. The BOS, especially Pat Herrity and Sharon Bulova, told her to ignore them, implying that she would be fired if she did not comply. Her very public presence on this issue tells me that some sort of “wind of change” is present. Perhaps the BOS is in a “fear of Clifton mode” after the strongly worded statement from the Town Council of Clifton and all of the phone calls and emails they received from citizens on the Silent Road Winery issue. The 26 April 2016 Loud Mouth Brewery gathering had to put some breeze into the BoS sails. Leslie is probably feeling safe enough to take on a winery in a big way, and the Office of General Counsel is backing her up. At the commonwealth level, I was encouraged by the first B-Chord decision in June, when for the first time a VABC hearing officer rejected a brewery application based on citizen concerns about peace and quietude. Another breeze change is that, of all people, David Albo was on the side of the citizens in the B-Chord I decision, given that his legislation started this nightmare. Another piece of evidence of changing winds was how quickly George Barker and Time Hugo were able to produce a “win” in modifying the legislation for R-C areas. I think that if the VABC Hearing Officer decides that she can supersede the authority of the Circuit Courts-BZA, Fairfax County won’t be content with simply appealing to the appellate level of the VABC; I think that will take it directly to the Circuit Court and, if necessary, the Supreme Court. This issue is too much of a challenge to the traditional zoning appeals process. Mr. Farmer is fortunate that his counsel is his brother-in-law. But pro-bono work, even from a relative, has its limits.
BATES ON YATES 1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
VIRGINIA ALCOHOLIC BEVERAGE CONTROL BOARD
RICHMOND
IN THE MATTER OF BATES ON YATES, LLC BATES ON YATES 12211 YATES FORD ROAD CLIFTON, VIRGINIA 20124-2137 SENT VIA CERTIFIED AND STANDARD MAIL APPLICATION FOR FARM WINERY – CLASS A
INCIDENT NO. 201607280060 HEARING HELD At Leesburg, Virginia October 20, 2016 ADMINISTRATIVE HEARING OFFICER CLARA A. WILLIAMSON APPEARANCES FOR THE BOARD: Katie Kelly, Senior Special Agent FOR THE COUNTY OBJECTORS:
Laura S. Gori, Senior Assistant County Attorney, County of Fairfax, Virginia Suite 549, 12000 Government Center Parkway Fairfax, Virginia 22035-0064 Leslie Johnson, Zoning Administrator St. Clair David Williams, Jr., Senior Assistant to the Zoning Administrator Mavis Stanfield, Deputy Zoning Administrator FOR THE RESIDENTIAL OBJECTORS: Leonard H. Moore Jr., Spokesperson 12840 Dunvegan Dr. Clifton, VA 20124
BATES ON YATES 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Dan Voss 7248 Archlaw Drive Clifton, VA 20124 Jane King 12417 Clifton Hunt Drive Clifton, VA 20124 David Smith 13014 Evans Ford Ct P.O. Box 166 Clifton, VA 20124 Kathryn Weller 13012 Yates Ford Rd Clifton, VA 20124 Joseph B. Scott 12501 Yates Ford Rd Clifton, VA 20124 Aileen Mitchell 12825 Yates Ford Rd Clifton, VA 20124 (Present but did not testify) Samuel “Dutch” Hillenburg 7701 Tiffany Ct Clifton, VA 20124 (Present but did not testify) Chris Spina (Present but did not testify)
FOR THE APPLICANT:
Brandon Murrill, Esq. 12211 Yates Ford Rd Clifton, VA 20124
Brian Bates Farmer, Managing Member Jennifer K. Murrill, Chairwoman (Present but did not testify)
BATES ON YATES 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Cite As: IN RE: Bates on Yates, LLC, APP #090130 (03/02/2017)
Reported by Donna Tuten, CCR, CMRS
BATES ON YATES 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
O B J E C T I O N S
(Farm Winery – Class A)
Incident No. 201607280060 1. The place to be occupied by the applicant is so located
with respect to a residence and residential area that the
operation of such place under the license will adversely
affect real property values or substantially interfere with
the usual quietude and tranquility of such residences and
residential area. REF: Section 4.1-222 A.2.d. of the Code
of Virginia.
2. The number of licenses existent in the locality is such
that the granting of a license is detrimental to the
interest, morals, safety, or welfare of the public.
REF: Section 4.1-222 A.3. of the Code of Virginia.
3. The Board is not authorized and empowered under the
provisions of the ABC Act to issue the license.
REF: Section 4.1-222 A.5. of the Code of Virginia.
BATES ON YATES 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
I. BACKGROUND:
A. Preliminary Matters
1. The hearing in this matter was convened in order to
consider the objections set forth in the Notice of Informal
Conference/Hearing Before Hearing Officer, to the granting of a
Farm Winery Class A License to Bates on Yates, LLC, t/a Bates on
Yates (“Applicant”) located at 12211 Yates Ford Road, Clifton,
Virginia, Incident No. 201607280060.
2. An Informal Conference was held prior to the hearing,
during which all parties and objectors were present. It was
ascertained that the ABC Bureau of Law Enforcement
(“Enforcement”) was neutral regarding the granting of the
application. It was further determined that Objection 3 was
brought by the Board of Supervisors of Fairfax County and Leslie
B. Johnson, Fairfax County Zoning Administrator (“Fairfax
County” or “County”), and that Objection 3 only involved the
County and the Applicant. The evidence pertaining to that
objection was heard first prior to proceeding with the evidence
pertaining to Objections 1 and 2. Mr. Leonard Moore was
selected as spokesperson for the objectors concerning Objections
1 and 2. Because Objection 3 alleges that the ABC Board is not
authorized or empowered under the ABC Act to issue the license
in this case, it will be considered first in the decision.
BATES ON YATES 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
B. Summary of Factual Findings (Objection 3)
3. The evidence presented at the hearing demonstrated that
House Bill 879 enacted by the General Assembly in February 2016
amended the definition of “farm winery” in the ABC Act to
exclude from that definition an establishment on land zoned
Residential Conservation (“R-C District”) (see Code Section 4.1-
100). However, this amendment does not preclude the ABC Board
from issuing a license to a new farm winery if: (1) an applicant
submits an application before July 1, 2016; and (2) the farm
winery use is “in compliance with the local zoning ordinance as
an agricultural district or classification or as otherwise
permitted by a locality for a farm winery or limited brewery
use” (see Code Section 4.1-100) (emphasis added)1
4. It was further demonstrated that on April 29, 2015, Mr.
Brian Bates Farmer, managing member of Bates on Yates, the
Applicant LLC, visited the Fairfax County Department of Planning
and Zoning. The purpose of his visit was to secure a
determination as to whether his property, located in an R-C
District, could be used as a farm winery. Upon arrival, he
1 It is undisputed that the Applicant submitted its application prior to July 1, 2016. The issue in this case is whether the use of this property as a farm winery is in compliance with the local Zoning Ordinance permitting a farm winery use in an R-C District. As discussed, infra, Fairfax County argued that the Applicant is not in compliance with the Zoning Ordinance because the operation of a farm winery is an agricultural use, which requires a lot with a minimum of five (5) acres.
BATES ON YATES 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
first met with Mr. St. Clair Williams, who was the Senior
Assistant to the Zoning Administrator, and provided a detailed
description of his proposed use of the property as a farm winery
and further informed Mr. Williams that his lot was 1.8 acres in
size. Mr. Williams then requested that Deputy Zoning
Administrator for Appeals Mavis Stanfield join them in the
meeting.2 Both of these individuals had the authority to make
determinations regarding land use under the Zoning Ordinance.
5. During this meeting, Mr. Farmer explained his
interpretation of the Fairfax County Zoning Ordinance, Section
2-405, entitled, “Permitted Reduction in Lot Size Requirements
for Existing Lots.” This section is referred to as “the
grandfathering provision” of this section. He took the position
that an agricultural use was permitted on his property, as his
property was recorded in 1956, and the lot size requirements
were waived pursuant to the provisions of Section 2-405,
providing that:
“If a lot was recorded prior to March 1, 1941, or if a lot was recorded prior to the effective date of this Ordinance, and said lot met the requirements of the Zoning Ordinance in effect at the time of recordation, then such lot, either as a single lot or in combination with other such lots pursuant to a Building Permit, may be used for any use permitted in the zoning district in which located under this Ordinance even though the lot(s) does not meet the
2 Following the factual summary, the testimony of Mr. Williams, Ms. Stanfield, Zoning Administrator Leslie Johnson and Mr. Farmer is set forth in detail.
BATES ON YATES 8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
minimum district size, lot area, lot width and/or shape factor requirements of the district, provided all other regulations of this Ordinance can be satisfied (emphasis added) (see Exhibit 7).
6. Also during this meeting, Mr. Farmer provided a copy of
a “Buildable Lot Determination” issued to him by the Fairfax
County Department of Public Works in 2005, finding that Section
2-405 was applicable, and, therefore, a building permit could be
issued for the development of a use permitted by right, by
special permit or by special exception on the lot, provided all
County and applicable Zoning Ordinance regulations, including
minimum yard requirements, are met (see Exhibit 4). The
regulations applicable to Section 2-405, the “grandfathering
provision,” of the Fairfax County Zoning Ordinance do not
involve lot size within the meaning of the definition of
agriculture set forth in Article 20, requiring five (5) acres
for an agricultural use (see Exhibit 2). Rather, it is
provided, in subsection D. of Section 2-405, that “except for
the minimum district size, lot area, lot width and shape factor
requirements of the district, all other requirements of this
Ordinance shall be satisfied, including but not limited to the
bulk and permitted use regulations of the zoning district in
which located” (see Exhibit 7).
7. Mr. Williams and Ms. Stanfield requested that Mr.
Farmer provide photographs showing continuous usage of the land
BATES ON YATES 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
for agricultural purposes. Pursuant to this request, he
obtained the requested materials, and on the following day,
April 30, 2015, hand-delivered a letter with a packet of
information, including photographs, to the Fairfax Department of
Planning and Zoning addressed to Ms. Johnson (see Exhibit 5).
Subsequent to Mr. Farmer’s delivery of this material, and within
approximately one or two hours, he received an e-mail from Mr.
Williams stating that:
After further discussion on your request about establishing a winery on your property, we have determined that the use as you described it would be deemed a “Farm Winery” as defined by Virginia State Code … Therefore, the usual activities and events customary for farm wineries are permitted without local regulation unless there is substantial impact on the health, safety or welfare of the public (see Sec. 15.2-2288.3 of the state code below). So, no approval is required from the County for your use as you described it, however any state requirements and/or regulations must be met. I trust this correspondence adequately responds to your request. If you have additional questions, please feel free to contact me (emphasis added) (see Exhibit 6).
8. Approximately four days after receiving this
determination from the County, Mr. Farmer filed an application
with the Virginia State Corporation Commission (SCC) to register
the business and an application with the Alcohol and Tobacco Tax
and Trade Bureau (ATB), and, during the next several months,
began to incur significant expenses in designing and preparing
his basement for the winery operation and tasting areas. He
BATES ON YATES 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
filed an application with the ABC Board for a Farm Winery -
Class A License on May 5, 2016.
9. On May 23, 2016, more than a year after receiving his
usage determination from the County, he received an e-mail from
Zoning Administrator Johnson stating that:
It is my position that you do not have the requisite acreage to establish a farm winery on your property. I would certainly welcome an opportunity to meet with you to discuss your pending application with the Virginia ABC (see Exhibit 3).
C. Testimony of Witnesses (Objection 3)
10. The County called Ms. Leslie Johnson, zoning
administrator; Mr. St. Clair Williams, senior assistant to the
zoning administrator; and Ms. Mavis Stanfield, deputy zoning
administrator, to testify. Ms. Johnson stated that she has held
the position of Zoning Administrator of Fairfax County and
Director of the Zoning Administration Division under the
Department of Planning and Zoning since September 2012. In this
capacity, it is her responsibility to interpret zoning
ordinances. She further stated that the property at issue in
this case is located in the R-C District where operation of a
farm winery is a permitted use, as it is considered
agricultural. She explained that the Residential Conservation
District Regulations, set forth in Section 3-C02, list
“Agriculture, as defined in Article 20,” as a permitted use (see
Exhibit 1). However, Article 20 defines “Agriculture” as: “The
BATES ON YATES 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
use of a tract of land not less than five (5) acres in size for
(a) the tilling of the soil; (b) the growing of crops, nursery
stock, or plant growth of any kind, including forestry; (c)
pasturage; (d) horticulture; (e) dairying,; (f) floriculture; or
(g) the raising of poultry and livestock; and (h) the wholesale
sales of any of the foregoing products” (see Exhibit 2). Based
upon this definition, she concluded that Mr. Farmer was not
entitled to use his property as a farm winery, as he had only
1.8 acres, rather than the five (5) acres required.
11. Ms. Johnson also stated that she did not participate
in the meeting between Mr. Williams, Ms. Stanfield and Mr.
Farmer on April 29, 2015, and she did not see the e-mail
forwarded by Mr. Williams to Mr. Farmer granting him approval to
operate as a farm winery until approximately one week prior to
the ABC hearing. She denied that this constituted a final
determination and stated that she would have made a different
decision. She denied ever seeing the hand-delivered packet from
Mr. Farmer on April 30, 2015, containing a letter, photographs
and other materials. Subsequent to receiving Mr. Farmer’s ABC
application for a Farm Winery – Class A License, she forwarded
an e-mail to him dated May 23, 2015, stating that he was not
qualified to receive this type of license, as he did not have
five (5) acres of land, and, therefore, could not meet the
BATES ON YATES 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
definition of agriculture set forth in Article 20 of the Zoning
Ordinance (see Exhibits 1, 2 and 3).
12. Ms. Johnson was questioned on cross-examination
concerning the grandfathering exception set forth in the Fairfax
County Zoning Ordinance, Section 2-405, and admitted that this
exception applies to the property at issue, although she still
maintained that Article 20 was applicable and required five (5)
acres for an agricultural usage.3 However, she further stated
that the provisions of Section 2-405 allow a lot that was
recorded prior to March 1, 1941 or recorded prior to the
effective date of the ordinance to be used for any use permitted
in the zoning district even though the lot does not meet the
minimum district size (see Exhibit 7). She explained that Mr.
Farmer’s property was recorded in 1956 and met the Zoning
Ordinance requirements in effect at that time, which allowed the
lot to be developed with a use permitted in that Ordinance. In
considering this issue, she looks at prior ordinances, and,
according to her, there are three Zoning Ordinances of record,
i.e., one in 1941, one in 1959 and another in 1978, and to the
best of her knowledge, the 1941 Ordinance required a lot size of
one-half an acre of land for an agricultural use. Mr. Farmer’s
lot size is 1.8 acres.
3 As discussed, infra, Counsel for the applicant argued that because Section 2-405 applies, the property may be used for any use permitted in the zoning district at the time of recordation.
BATES ON YATES 13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
13. A series of aerial photographs taken of the subject
property by the Fairfax County Geographical Information System
were identified by Ms. Johnson and received into evidence
collectively as Exhibit 8. These photographs were certified and
allegedly show that there was no continued agricultural use of
this property.4 As set forth below, Mr. Farmer testified at
length regarding his use of the property for agricultural
purposes, and his clear and forthright testimony was credited by
the Hearing Officer.
14. Mr. St. Clair Williams stated that he has been with
Fairfax County for 11 years and is the Senior Assistant to the
Zoning Administrator. He recalled meeting with Mr. Farmer on
April 29, 2015 and discussing a plan to operate a farm winery on
his property. He asked Deputy Zoning Administrator Mavis
Stanfield to join the discussion, and they spoke about Mr.
Farmer’s plan and the five-acre lot requirement for agricultural
use, as they were aware that Mr. Farmer’s property was less than
five (5) acres. During the meeting, they also looked at certain
materials brought by Mr. Farmer but did not specifically recall
which materials were reviewed. Following the meeting, Mr.
Williams discussed the matter further with Ms. Stanfield. He
4 As discussed, infra, Counsel for the Applicant argued that the photographs are irrelevant, as the property at issue met the lot size and area requirements at the time it was recorded, and Section 2-405 is applicable to lots, not uses.
BATES ON YATES 14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
stated that she asked that he forward to Mr. Farmer the
definition of a farm winery in the state code and the
regulations regarding the activities associated with a farm
winery.
15. Mr. Williams further stated that on April 30, 2015,
the day following the meeting, he forwarded an e-mail to Mr.
Farmer informing him of the determination that had been made
concerning the operation of a farm winery on his property and
enclosing applicable code provisions and regulations. In this
e-mail, he stated:
After further discussion on your request about establishing a winery on your property, we have determined that the use as you described it would be deemed a “Farm Winery” as defined by Virginia State Code … Therefore, the usual activities and events customary for farm wineries are permitted without local regulation unless there is substantial impact on the health, safety or welfare of the public (see Sec. 15.2-2288.3 of the state code below). So, no approval is required from the County for your use as you described it, however any state requirements and/or regulations must be met. I trust this correspondence adequately responds to your request. If you have additional questions, please feel free to contact me (emphasis added).
In this e-mail, Mr. Williams included not only the definition of
“Farm Winery” set forth in Code Section 4.1-100, but cited
applicable provisions of the Virginia Farm Winery Zoning Act
(FWZA), including Code Section 15.2-2288.3, stating:
It is the policy of the Commonwealth to preserve the economic vitality of the Virginia wine industry while maintaining appropriate land use … Local restriction
BATES ON YATES 15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
upon such activities and events of farm wineries licensed in accordance with Title 4.1 to market and sell their products shall be reasonable and shall take into account the economic impact on the farm winery of such restriction, the agricultural nature of such activities and events and whether such activities and events are usual and customary for farm wineries throughout the Commonwealth. 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 (see e-mail, Exhibit 6).
16. Mr. Williams stated that he prepared the narrative set
forth in this e-mail and that no one else saw the e-mail prior
to sending it to Mr. Farmer. He explained that his choice of
wording was to convey the fact that based upon the discussions
between him, Ms. Stanfield and Mr. Farmer, the use of the
property proposed by Mr. Farmer would be considered a farm
winery. He stated in the e-mail that no further approval was
required from the County for Mr. Farmer to operate as a farm
winery because it was his understanding, based upon the state
code quoted in his e-mail, that “the County cannot enforce any
restrictions on the activities associated with a farm winery.”
According to him, that understanding was what he was trying to
explain in his e-mail. He further explained that the statement
in his e-mail that “we have determined that the use as you
described would be deemed a farm winery,” the “we” referred to
him and Ms. Stanfield, as they discussed Mr. Farmer’s proposed
use of the property after the meeting (see Exhibit 6).
BATES ON YATES 16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
17. Ms. Mavis Stanfield stated that she has been employed
by Fairfax County for 16 years and has held the position of
Deputy Zoning Administrator since June 2015. In April 2015 she
was Mr. Williams’ supervisor in the Ordinance Administration
Branch. She stated that she recalled the meeting with Mr.
Williams and Mr. Farmer “to some extent.” She was asked to
address the five-acre requirement for an agricultural use of
property in an R-C District. After being informed that Mr.
Farmer’s property was 1.8 acres, she informed him that she had
no authority to waive the five-acre requirement because of the
definition of agriculture set forth in Article 20, requiring
five acres. She denied authorizing Mr. Williams to make a
different decision. She did not recall whether or not Mr.
Farmer brought up the provisions of Section 2-405 of the Fairfax
County Zoning Ordinance during the meeting, but stated that, in
her view, that section did not apply. However, she admitted
that Section 2-405 does not discriminate among uses permitted by
right in the R-C District and that a lot that qualified under
Section 2-405 may be used for any use permitted in the R-C
District under the Zoning Ordinance, and agriculture is a
permitted use.5
5 As discussed herein, counsel for the applicant argued that no usage determination was really necessary, because under the provisions of Section 2-405, Mr. Farmer was permitted to operate a farm winery as a permitted use, by right, in the R-C District.
BATES ON YATES 17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
18. Mr. Bates Farmer, managing member, stated that he was
interested in having a small-scale farm winery on his property
located at 12211 Yates Ford Road in Clifton, Virginia. He
planted his grapes on this property in 2012, as, according to
him, it takes them four to five years to become producing.
After planting the grapes, he pruned and cared for them with a
goal of making and selling wine; however, he did not want to
move forward until his use of the property had been approved by
the County. On April 29, 2015, he went to the Fairfax County
Department of Planning and Zoning “as a walk-in application” in
order to obtain a use determination. He initially met with Mr.
Williams, during which meeting he explained his intended use of
the property as a small-scale farm winery. He took his
“Buildable Lot Determination” that he had secured from the
Department of Public Works and Environmental Services on August
12, 2005 and reviewed that with Mr. Williams. In that regard, a
determination had been made that although his lot did not meet
the current Zoning Ordinance for lot area and/or width, the
grandfathering provision of Section 2-405 of the Zoning
Ordinance applied based upon DPZ (Department of Planning and
Zoning) research indicating the lot met the Zoning Ordinance
requirements with regard to lot area and width, when
created/recorded (see Exhibit 4).
BATES ON YATES 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
19. After reviewing these issues with Mr. Williams, he
(Mr. Williams) requested that Ms. Stanfield join the meeting.
Mr. Farmer stated that she informed him that he could not “do
this,” and that he needed to provide photographs to show a
continuing use of this property for agriculture. He informed
her that he could obtain the information she requested and had
photographs he could provide. He gathered this information and
hand-delivered a packet to the front desk of the Department of
Planning and Zoning the following morning addressed to Ms.
Leslie Johnson. This packet included a letter dated April 30,
2015 from him and photographs illustrating the continued use of
the property for agricultural purposes. In this letter, Mr.
Farmer stated:
As I mentioned, I started growing grapes on the 12211 Yates Ford property because I have a passion for agriculture and thoroughly enjoy working my land. My hope is simply to ensure I am able to legally sell my grapes or produce limited quantities of wine for sale at local farmer’s markets, Clifton Day, or local restaurants or venues with the appropriate VA ABC and TTB approvals. As I mentioned I just wanted to ensure I followed all the required Fairfax County processes required for agriculture related sales before moving forward … I have two small children, I live on the property, I have a regular 9-5 job like most people, and I have neither the desire nor intention to become a public ‘attraction’ or large scale Farm Winery business … There will not be any tour buses, weddings, concerts, or significant traffic coming to my home … You have my commitment.
As you requested, I went home and searched for aerial photography of my yard from over the years and pictures I took upon purchasing the property … I
BATES ON YATES 19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
believe the land has in fact been consistently utilized for farming by previous owners such that it might be reasonably be able to qualify for the same area ‘grandfathering’ as was applied to permitted uses from the buildable lot request I had submitted in 2005 … I also located pictures of the Moore Family tractor and furlough plow that I was able to take from my car back in 2005. I have included pictures of the antique plow pieces that my father and I removed from the property prior to the new home construction, which I believe were fully utilized over many years on the property for agricultural purposes … one appears to be a ‘disc harrow’ plow from the early 1900’s. In addition, I included pictures of my initial grape vine plantings once we moved in (emphasis added) (see Exhibit 5).6
20. According to Mr. Farmer, approximately one or two
hours after delivery of this packet, he received the e-mail from
Mr. Williams stating that no approval from the County was
required to operate a farm winery on his property. He stated
that after receiving this e-mail, he proceeded to obtain the
appropriate licenses and permits and make revisions to his
basement to accommodate activities of the winery, including
tasting. He explained that in July 2015 his mother became ill
and passed away in January 2016, and, as a result, he had to
temporarily cease his efforts concerning permits and
applications for the farm winery. There was, therefore, a gap
between the County’s approval of the usage of his property on
6 Mr. Farmer explained that he drafted this letter in TextPad, as he did not have the proper word processing tools. Prior to submitting it to the County, he had to print out the TextPad document, take a screen shot of the document he had scanned and make it into a PDF. The wording of the letter, Exhibit 5, is identical to that submitted in PDF form to the County and was signed by him.
BATES ON YATES 20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
April 30, 2015 and the filing of his ABC application in May
2016.
21. Mr. Farmer stated that after receiving a favorable use
determination from the County on April 30, 2015, he had no
expectation of further correspondence from the County, as he had
been told in the e-mail, “I trust this correspondence adequately
responds to your request” (see Exhibit 6). He was, therefore,
“dumbfounded” when he received the letter from Ms. Johnson over
a year later informing him that he did not have the requisite
acreage to establish a farm winery on his property (see Exhibit
3).
22. Mr. Farmer stated that he had gone through the process
in good faith and opined that people need to be able to trust
their local governments, and not being able to do so is a
concern. He further opined that he found it difficult to
believe that Mr. Williams made this usage determination in a
vacuum and sent it to him without his superiors being involved.
He did not follow up with Mr. Williams, as he “trusted him” and
“trusted his correspondence.” His expressed belief was that the
“we” referred to in this correspondence approving his use of the
property as a farm winery referred to all levels of supervision,
including the zoning administrator, and that he thought such
assumption was reasonable.
BATES ON YATES 21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
II. ANALYSIS AND CONCLUSIONS: (Objection 3)
A. Arguments of Counsel
On behalf of the Fairfax County Board of Supervisors,
counsel argued that the ABC Board lacks authority to issue a
Farm Winery – Class A License to the Applicant.7 It was argued
that the ABC Board has no authority over land use and zoning, as
the “General Assembly vested such zoning authority in
localities, to make zoning decisions before the ABC Board may
issue a farm winery license.” Counsel asserts that this is
because of the definition of “farm winery” and the enabling
legislation adopted in 2016. Counsel requests the ABC Board not
to claim for itself, even if indirectly, the authority to decide
where agricultural uses may be permitted under the Zoning
Ordinance (see Board of Supervisors’ Closing Argument dated
December 31, 2016, pp.2-3).
Counsel asserted that the General Assembly carved out a
very limited exception in the definition of a farm winery that
applies only to any person who, prior to July 1, 2016, has a
pending application for a farm winery and is “in compliance with
7 The record was left open until October 31, 2016 to receive the written closing arguments on behalf of the County and the Applicant concerning Objection 3. The record was later reopened on December 16, 2016 in order to receive additional briefing from the County and Applicant regarding this Objection. Closing arguments were submitted on behalf of the County by letters dated October 31, 2016 and December 12, 2016. The Applicant’s closing arguments were also received by letters dated October 31, 2016 and December 12, 2016, and both are made part of the application file.
BATES ON YATES 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the local zoning ordinance as an agricultural district or
classification or as otherwise permitted by the locality for a
farm winery use” (see 2016 Va. Acts ch. 710). However, counsel
argued that the Applicant does not qualify for this exception,
because the property is not in compliance with the local Zoning
Ordinance and Residential District Regulations, Sections 3-CO2,
and the use is not “otherwise permitted” by the County. The
property is in a residential district where agriculture is
permitted “as defined in Article 20” (see Exhibits 1 and 2).
Under Article 20 of the Zoning Ordinance, an agricultural use
requires a tract of land consisting of five acres, and Mr.
Farmer’s property is less than five acres. Therefore, the
Applicant is not in compliance with the Zoning Ordinance.
Counsel further argued that the Board of Zoning Appeals
(BZA) specifically has authority to hear and decide appeals
involving decisions of the zoning administrator or other
administrative officer (see Va. Code Section 15.2-2309-2311).
In this connection, counsel asserts that the official land use
determination was not made by Mr. Williams in his e-mail to Mr.
Farmer dated April 30, 2016, as discussed herein, but rather by
Ms. Johnson in her letter to Mr. Farmer dated June 23, 2016, and
because he did not appeal that determination, which he had 30
days to accomplish, he failed to exhaust his administrative
remedies. Consequently, argues counsel, he is precluded from
BATES ON YATES 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
challenging the determination made by Ms. Johnson before another
statutory body, including the ABC Board (see Board of
Supervisors’ Closing Argument dated December 31, 2016, pp.4-5).
Counsel argued that the Applicant’s reliance upon the
“grandfathering provision” of Zoning Ordinance, Section 2-405,
should not be considered, because the Applicant never appealed
and raised this argument to the BZA, and, in any case, this
argument would have failed. Counsel interprets the
“grandfathering provision” of Section 2-405 to require that an
applicant’s property consist of five (5) acres for an
agricultural use under the provisions of Article 20,
notwithstanding the wording of Section 2-405 and the “Buildable
Lot Determination” obtained by Mr. Farmer. Counsel asserted
that the “Buildable Lot Determination” does not represent the
“blank check the applicant makes it out to be.”8
Counsel finally argues that the Applicant’s arguments in
the name of “fairness” essentially amount to estoppel, which
does not apply to local governments in the exercise of their
governmental functions. It was asserted that the facts in this
case do not merit an exception to the “no estoppel” rule (see
Board of Supervisors’ Closing Argument dated December 31, 2016,
8 As discussed, infra, in the conclusions, and as contended by the Applicant’s counsel, the “grandfathering provisions” of Zoning Ordinance, Section 2-405, are, in fact, applicable to the facts in this case.
BATES ON YATES 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
p.7, and Board of Supervisors’ Closing Argument dated December
12, 2016, p.3).
In the letter dated December 12, 2016, on behalf of the
Board of Supervisors of Fairfax County, counsel argued that a
circuit court, and not the ABC Board, is the proper forum for a
vested rights determination. Counsel asserts that the Applicant
has not instituted a case in court, and the ABC Board cannot
issue a farm winery license to the Applicant because a farm
winery use is not permitted on the Applicant’s property, and the
Applicant has not established any vested rights to this use.
Counsel argued that the ABC Board must determine before issuing
a license that the application property is in an agricultural
district or classification or is otherwise permitted by a
locality for a farm winery use (see letter dated December 12,
2016 on behalf of the Board of Supervisors of Fairfax County,
pp. 1-2). Although counsel asserts that there is no dispute in
this case that a farm winery use is not “otherwise permitted” on
the property, this issue is not undisputed and is, in fact, a
central issue in the case.
With regard to the Applicant’s assertion that it has a
vested right to agricultural uses, counsel argues that the ABC
Board has no authority to adjudicate the reasonableness of the
County’s definition of agriculture, citing County of
Chesterfield v. Windy Hill, 559 S.E. 2nd 627 (Va. 2002)
BATES ON YATES 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(observing that “[t]here is no language in the ABC Act which
takes from local governments the powers conferred upon them by
zoning statutes to regulate land use”). Counsel further asserts
that there is no conflict between the County’s use of its zoning
ordinance to regulate the location of agricultural uses and the
ABC Boards’ authority to license and regulate the sale of
alcohol, and, therefore, the ordinance may stand. Counsel
concedes, however, that the ABC Board must assess whether the
application property meets the definition of “farm Winery,” as
amended in 2016, but asserted it may not wade into the
reasonableness of the County’s underlying zoning.
Counsel for the Applicant submitted closing arguments on
the Applicant’s behalf in letters dated October 31, 2016 and
December 12, 2016, made part of the application file. Counsel
first argued that the ABC Board is authorized to grant the
Applicant’s license, as the County’s attempted use of the Zoning
Ordinance to deny a license in this case conflicts with the ABC
Act, Code Section 4.1-100 et seq., and the Farm Winery Zoning
Act (“FWZA”), Code Section 15.2-2288.3, that prohibit or
significantly restrict local government regulation of alcoholic
beverages or farm winery activities.
Counsel noted that the ABC Act, in Code Section 4.1-103
(4), empowers the ABC Board to “control the possession, sale,
transportation and delivery of alcoholic beverages.” In Code
BATES ON YATES 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Section 4.1-103 (19), the Board is empowered “to do all acts
necessary or advisable to carry out the purposes of this title.”
It is further provided in Code Section 4.1-111 F. that the
“Board’s power to regulate shall be broadly construed.”
Additionally, Code Section 4.1-128 A. prohibits a locality,
except in limited circumstances inapplicable to land use
matters, from adopting an ordinance or regulation that
“regulates or prohibits the manufacture, bottling, possession,
sale, wholesale distribution, handling, transportation,
drinking, use, advertising or disposing of alcoholic beverages
in the Commonwealth.” This section also forbids a locality from
adopting an ordinance or resolution “that prohibits or regulates
the storage, warehousing, and wholesaling of wine in accordance
with Title 4.1, regulations of the Alcohol Beverage Control and
federal law at a licensed farm winery.” This section further
provides that local acts inconsistent with any of the provisions
of this title are repealed to the extent of such inconsistency.
Counsel also noted that House Bill 879 did not repeal Code
Section 4.1-128 A. or other provisions of state law that prevent
local governments from prohibiting or regulating alcoholic
beverages or the activities of farm wineries.
Counsel further argues that the FWZA should be read in
conjunction with Code Section 4.1-128 A. The FWZA seeks to
preserve the “economic vitality of the Virginia wine industry”
BATES ON YATES 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
while recognizing the local governments have an interest in
exercising their land use authority to protect public health,
safety, and welfare with regard to activities that take place on
the premises of the winery. It is provided in Section 15.2-
2288.3:
Local restrictions upon such activities and events of farm wineries licensed in accordance with Title 4.1 to market and sell their products shall be reasonable and shall take into account the economic impact on the farm winery of such restriction, the agricultural nature of such activities and events, and whether such activities and events are usual and customary for farm wineries throughout the Commonwealth. 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 (emphasis added).
Counsel asserted that the ABC Act does not establish a
minimum lot size requirement for farm winery activities such as
the manufacture or retail sale of wine. Even if the County may
to an extent regulate the on-premises activities of a farm
winery, the County’s attempt to use this licensing proceeding to
deny the license to the Applicant is inconsistent with the
stated purpose of the FWZA because it is not reasonable in
scope. The County, argued counsel, has not demonstrated that a
five-acre minimum lot size is needed to achieve an objective
related to health, public safety, or welfare for an operation of
this scope and scale. Counsel noted that Mr. Farmer testified
that his winery would be a small operation with minimal impact
BATES ON YATES 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
on the public, but that the denial of the license would have a
large and prohibitive economic impact on the winery. Therefore,
the County’s attempt to deny the license is not a “reasonable
exercise of its zoning powers and conflicts with state law” (see
Applicant’s Closing Arguments dated October 31, 2014, p.4).
Additionally, counsel argued that in this case the General
Assembly specifically amended the ABC Act to provide that the
ABC Board may issue a license to a new farm winery in an R-C
District if: (1) an applicant submits an application before July
1, 2016; and (2) prior to July 1, 2016 the farm winery use “is
in compliance with the local zoning ordinance as an agricultural
district or classification or as otherwise permitted by a
locality for a farm winery or limited brewery use” (see Code
Section 4.1-100). Therefore, as the agency charged with
administrating the ABC Act and issuing farm winery licenses, the
Board certainly has the authority to render a decision as to
whether these prerequisites for issuance of a license are met.
The addition of this language to the Act demonstrates that the
General Assembly intended the Board to rule on whether the
locality’s asserted five-acre minimum requirement for operation
of a farm winery is consistent with state law; whether state law
preempts such a restriction; and whether the April 2015
determination by Mr. Williams could be reversed after Mr. Farmer
relied upon the determination.
BATES ON YATES 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Counsel next argued that the Applicant acquired a vested
right to operate a farm winery on the subject property under the
provisions of Code Section 15.2-2311(C). This was the result of
Mr. Farmer’s reliance in good faith on a written determination
by an authorized Fairfax County zoning official that no approval
was required from the County for a farm winery use.
Specifically, Section 15.2-2311(C) states the following:
In no event shall a written order, requirement, decision or determination made by the zoning administrator or other administrative officer be subject to change, modification or reversal by any zoning administrator or other administrative officer after 60 days have elapsed from the written order, requirement, decision or determination where the person aggrieved has materially changed his position in good faith reliance on the action of the zoning administrator or other administrative officer … (emphasis added).
Counsel asserted that the April 30, 2015 e-mail from Mr.
Williams to Mr. Farmer stating that, “we have determined that
the use as you described it would be deemed a “Farm Winery” and
that “no approval is required from the County for your use as
you described it” constituted a “written … decision or
determination made by the zoning administrator or other
administrative officer.” The determination had the hallmarks of
finality and did not state that it was subject to change. Mr.
Farmer relied upon this determination, and in a matter of days
following this determination Mr. Farmer filed an application
with the SSC to register Bates on Yates, LLC and also commenced
BATES ON YATES 30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
an application with the TTB. He applied for and received
Fairfax County permits, and incurred significant expense in
designing and developing his basement in preparation for his
winery operations and tasting areas.
Therefore, Zoning Administrator Johnson’s e-mail to Mr.
Farmer dated May 23, 2016, more than one year later, stating
that he did not have the requisite acreage to establish a farm
winery, was outside of the 60-day time period permitted to
change the earlier determination. Mr. Farmer relied upon this
determination, and pursuant to the provisions of Code Section
15.2-2311(C), the written determination on April 30, 2015 was no
longer subject to change, modification or reversal. Mr. Farmer
(and by extension, the Applicant) acquired a vested right to
operate a farm winery on the subject property (see Applicant’s
Closing Arguments dated October 31, 2016, p.6 and December 12,
2016, p.4).
Counsel requests that the Board take into account the
equitable estoppel or “fairness” principles embodied in Code
Section 15.2-2311(C) when determining whether the subject
property is in compliance with the local zoning ordinance as an
agricultural district or classification or as otherwise
permitted by a locality for a farm winery use. Counsel cited
Goyonaga v. Board of Zoning appeals for the City of Falls
Church, 275 Va. 232,244 (2008), stating that Code Section 15.2-
BATES ON YATES 31
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2311(C) provides for the potential vesting of a right to use
property in a manner that “otherwise” would not have been
allowed.” This decision, therefore, recognizes that Section
15.2-2311 serves as a statutory exception to the general
principle that estoppel cannot be invoked against a local
government.
In summary, counsel asserted that pursuant to Code Section
15.2-2311(C), the usage determination made by Mr. Williams on
April 30, 2015, could not be reversed more than 60 days after it
was made, and Mr. Farmer’s use of the subject property for a
farm winery is thus in compliance with the local zoning
ordinance or otherwise permitted by the locality.
B. Disposition of Objection 3
After considering the facts, arguments of counsel and
controlling law, the Hearing Officer has determined that
Objection 3 cannot be substantiated for the following reasons.
It is first determined that in the case herein the General
Assembly specifically amended the ABC Act to provide that the
ABC Board may issue a license to a new farm winery in an R-C
District if: (1) an applicant submits an application before July
1, 2016; and (2) prior to July 1, 2016 the farm winery use is in
compliance with the local zoning ordinance as an agricultural
district or classification or as otherwise permitted by a
locality for a farm winery use (see Code Section 4.1-100).
BATES ON YATES 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Therefore, as the agency charged with administrating the ABC Act
and issuing farm winery licenses, the Board has full authority
to render a decision as to whether these prerequisites for
issuance of a Farm Winery – Class A license have been met. The
addition of this language to the ABC Act demonstrates that the
General Assembly intended that the ABC Board rule on whether the
locality’s asserted five-acre minimum requirement for operation
of a farm winery is consistent with state law; whether state law
preempts such a restriction; and whether the April 2015
determination by Mr. Williams could be reversed when it was not
changed or reversed within the 60-day period Mr. Farmer relied
upon the determination.
To hold otherwise would automatically preclude the ABC
Board from granting a Farm Winery – Class A License to anyone or
entity having less than five (5) acres of property when granting
such license might, in the Board’s discretion, be appropriate
and in accordance with state policy. As set forth herein, the
FWZA states that, “It is the policy of the Commonwealth to
preserve the economic vitality of the Virginia wine industry
while maintaining appropriate land use authority to protect the
health, safety, and welfare of the citizens of the Commonwealth,
and to permit the reasonable expectation of uses in specific
zoning categories” (see Code Section 15.2-2288.3).
BATES ON YATES 33
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
The Hearing Officer agrees with the Applicant’s position,
as argued by counsel, that the FWZA articulates the
Commonwealth’s policy as to the proper balance between the
exercise of local land use authority and the economic vitality
of the wine industry. Therefore, the County’s attempt to use
the objection process to deny a license based on application of
an unreasonable zoning restriction on operation of a farm winery
conflicts with state policy. Counsel cited Blanton v. Amelia
County, 261 Va. 55, 64, 540 S.E.2nd, 869, 873-4 (2001), in which
the Virginia Supreme Court held that a zoning ordinance that
conflicts with state policy is unenforceable, stating, “It is,
of course, fundamental that local ordinances must conform to and
not be in conflict with the public policy of the State as
embodied in its statutes.” No evidence was presented by the
County that the five-acre lot restriction was necessary to
protect the health, safety, or general welfare of the public.
Indeed, Mr. Farmer testified that this would be a small-scale
operation with minimum impact on the public.
It is further determined that the “grandfathering
provision” of Fairfax Zoning Ordinance, Section 2-405, applies
to the facts in this case and entitles the Applicant to operate
a farm winery on his property “as otherwise permitted by a
locality for a farm winery use” (see Code Section 4.1-100). As
BATES ON YATES 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
set forth herein, Section 2-405, entitled “Permitted Reduction
in Lot Size Requirements for Existing Lots,” provides that:
If a lot was recorded prior to March 1, 1941, or if a lot was recorded prior to the effective date of this Ordinance, and said lot met the requirements of the Zoning Ordinance in effect at the time of recordation, then such lot, either as a single lot or in combination with other such lots pursuant to a Building Permit, may be used for any use permitted in the zoning district in which located under this Ordinance even though the lot(s) does not meet the minimum district size, lot area, lot width and/or shape factor requirements of the district, provided all other regulations of this Ordinance can be satisfied (emphasis added) (see Exhibit 7).
Mr. Farmer recorded his lot in 1956, and Ms. Johnson stated
that he met the Zoning Ordinance requirements in effect at that
time, which allowed the lot to be developed with a use permitted
in that Ordinance. According to her, there are three Zoning
Ordinances of record, i.e., one in 1941, one in 1959 and another
in 1978, and to the best of her knowledge, the 1941 Ordinance
required a lot size of one-half an acre for an agricultural use.
Mr. Farmer’s lot size is 1.8 acres, and, therefore, qualified
for an agricultural use permitted by the Zoning Ordinance at the
time of recordation.
It is also noted that the regulations applicable to Section
2-405 of the Fairfax County Zoning Ordinance do not involve lot
size within the meaning of the definition of agriculture set
forth in Article 20, requiring five acres for an agricultural
use (see Exhibit 2). Rather, it is provided, in subsection D.
BATES ON YATES 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
of Section 2-405, that “except for the minimum district size,
lot area, lot width and shape factor requirements of the
district, all other requirements of this Ordinance shall be
satisfied, including but not limited to the bulk and permitted
use regulations of the zoning district in which located” (see
Exhibit 7). There was no allegation that Mr. Farmer failed to
comply with “all other requirements” of Section 2-405 of the
Ordinance. There is, therefore, no impediment to using his
property as a farm winery.
The Department of Public Works and Environmental Services
reached this same conclusion concerning the applicability of the
“grandfathering provision” of Section 2-405 to the subject
property when it made the “Buildable Lot Determination” in 2005.
It was found that the “grandfathering provision” of Section 2-
405 was applicable based on DPZ (Department of Planning and
Zoning) research that indicated that the lot met the applicable
Zoning Ordinance requirements with regard to lot area and lot
width when created/recorded (see Exhibit 4).
The Hearing Officer further decides that the determination
made by Mr. Williams on April 30, 2015, that Mr. Farmer’s stated
use of the property would be deemed a “Farm Winery,” as defined
in Virginia Code Section 4.1-100, and no approval was required
from the County for his use of the property for that purpose is
binding upon the County (see Exhibit 6). As discussed herein, a
BATES ON YATES 36
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
written order, requirement, decision or determination of the
zoning administrator or other administrative officer shall not
be subject to change, modification or reversal after 60 days
have elapsed from the date of the written order, requirement,
decision or determination where the person aggrieved has
materially changed his position in good faith reliance on such
determination [see Code Section 15.2-2311(C)]. Mr. Williams was
unquestionably an administrative officer within the meaning of
this code section. It was over one year later when Ms. Johnson
forwarded the e-mail to Mr. Farmer informing him that he did not
have the requisite five acres of land for a farm winery use (see
Exhibit 3). However, Zoning Administrator Johnson’s e-mail to
Mr. Farmer dated May 23, 2016, more than one year later, stating
that he did not have the requisite acreage to establish a farm
winery was outside of the 60-day time permitted to change the
earlier determination and violated the terms of Code Section
15.2-2311(C). Mr. Farmer relied upon this determination, and
pursuant to the provisions of Code Section 15.2-2311(C), the
written determination on April 30, 2015 was no longer subject to
change, modification or reversal.
Based upon these facts, Counsel for the Applicant argued
that Mr. Farmer (and by extension, the Applicant) acquired a
vested right to operate a farm winery on the subject property.
However, Counsel also asserted, as did Counsel for the County,
BATES ON YATES 37
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
that a determination of a vested right should be made by a
circuit court. Thus, the parties agreed that this issue was not
before the Hearing Officer.
In summary, the decision of the Hearing Officer in this
case is based upon a finding that the ABC Board has authority to
decide the issues in this case and to issue a Farm Winery –
Class A License to the Applicant. The General Assembly
specifically amended the ABC Act to provide that the ABC Board
may issue a license to a new farm winery in an R-C District if:
(1) an applicant submits an application before July 1, 2016; and
(2) prior to July 1, 2016 the farm winery use is in compliance
with the local zoning ordinance as an agricultural district or
classification or as otherwise permitted by a locality for a
farm winery use (see Code Section 4.1-100). Therefore, as the
agency charged with administrating the ABC Act and issuing farm
winery licenses, the Board has full authority to render a
decision as to whether these prerequisites for issuance of a
Farm Winery – Class A license have been met. The Applicant
complied with the requirements set forth in the ABC Act, at Code
Section 4.1-100, for operation of a farm winery on the subject
property as “otherwise permitted by a locality for a farm winery
use.”
Additionally, in bringing this objection, the County had
the burden of proving by a preponderance of the evidence that
BATES ON YATES 38
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the Board was not authorized or empowered by the ABC Act to
issue the license, which it failed to do. It was not
demonstrated by the County that the five-acre minimum lot size
was needed to achieve an objective related to health, public
safety of welfare for an operation of this scope and scale.
Likewise, the County failed to demonstrate that the
“grandfathering provision” of Section 2-405, set forth herein,
does not apply to the circumstances of this case.
Having concluded that the Applicant is entitled to operate
a farm winery by virtue of the “grandfathering provision” of
Section 2-405, the continued use of the property for
agricultural purposes is not required to be shown, and the
photographs submitted by the County, Exhibit 8, purporting to
show that there was no continued use of the property for this
purpose are not considered. As discussed herein, Mr. Farmer’s
testimony has been credited in all respects over the testimony
of the witnesses presented by the County, to the extent of any
inconsistency. He had total recall of the events in this case
and testified in an honest and forthright manner. He impressed
the Hearing Officer as a serious businessman, who is interested
in complying with all laws and regulations.
Finally, the County failed to comply with state law in
approving Mr. Farmer’s use the property as a farm winery in the
e-mail dated April 30, 2015 and then changing its position after
BATES ON YATES 39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the 60-day deadline had elapsed for reversing such a
determination on which Mr. Farmer had relied.
Having decided that there is no impediment to the ABC Board
issuing the Applicant a Farm Winery – Class A license, on the
bases asserted by the County in Objection 3, the remaining
objections will be considered.
III. BACKGROUND: (Objections 1 and 2)
1. Mr. Leonard Moore, spokesperson for the objectors
concerning Objections 1 and 2, represented that the objectors,
namely, Mr. Dan Voss and Ms. Jean Voss, Ms. Jane King, Mr. David
Smith, Ms. Kathryn Weller, Mr. Joe Scott and himself, prepared a
joint presentation entitled, “Bates on Yates Presentation
Overview,” for submission at the ABC hearing. The booklet,
containing photographs of the area and a written summary of the
evidence on which the objectors relied, was received into
evidence as Exhibit 11. Mr. Moore further represented that the
written summary contained in the booklet signed by Mr. Dan Voss
and Ms. Jean Voss expressed the views of all of the objectors,
all of whom reside within two miles of the proposed farm winery.
The same evidence is relied upon to support both Objections 1
and 2.
2. As stated in the written summary, the subject property
is a residential home located at the intersection of two tree-
BATES ON YATES 40
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
lined country roads, i.e., Yates Ford Road and Clifton Road,
neither of which have shoulders. The lot is less than two acres
in size, most of which accommodates the house, the septic field,
well and grapevines. The expressed concern is that there would
be very limited parking spaces to accommodate visitors, and the
winery would have no control over the overflow visitor parking
that would occur on the edges of Clifton and Yates Ford Roads.
It was further asserted that the operation of the winery would
result in cars parking in a manner that would block or constrict
passage on these roads causing a public safety hazard. The
“potential blockage” would present a catastrophic safety
situation if emergency and police vehicles could not pass. A
photograph of the “Bated on Yates Plot,” showing the location of
the house, water well, septic tanks, septic drain field and
vines is included in the booklet (see Exhibit 11, p. 4).
3. In support of the objectors’ contention regarding the
effect of overflow visitor parking, it was asserted in this
summary that this would be the same situation that occurred at
Paradise Springs Winery. That winery is located on the other
side of Yates Ford Road and has been licensed and operational
since 2009. One part of Yates Ford Road leads to Bates on
Yates, the subject property, and the other part of this road
leads off to the right on the other side of this property in a
northerly direction. A diagram showing the two parts of this
BATES ON YATES 41
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
road and the Bates on Yates location is contained in the
booklet, Exhibit 11, p. 15, and also shown on the diagram,
Exhibit 14. A photograph of the visitor parking along the road
leading to Paradise Springs Winery was also included in the
booklet (see Exhibit 11, p. 13). It was asserted that this type
of blockage could not be tolerated at the winery in this case,
as it would be tragic if emergency vehicles could not gain
access to these roads.
4. It was also noted by the objectors, in the written
summary, that the “greatly increased traffic” on Yates Ford Road
leading to Paradise Springs Winery has presented such a safety
hazard that equestrians who reside in the area can no longer
ride their horses safely to Hemlock Regional Park located at the
end of Yates Ford Road. Additionally, that winery’s visitors
park in the park’s trailer parking so that riders cannot trailer
their horses to the park. It was asserted that the Bates on
Yates proposed winery would add traffic to the other section of
Yates Ford Road that riders now use to access local bridle
trails, thereby creating additional safety concerns for them.
It was further stated in the summary that “The added hazard of
winery attracted traffic on these country type roads would
adversely impact area real estate values in a county that has
few allowable horse properties and would be detrimental to the
BATES ON YATES 42
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
quality of life, quietude and tranquility for the local
equestrians and the community at large” (see Exhibit 11).
5. Objector Jane King, in a separate written statement
read by her during her testimony at the hearing, offered further
descriptions of the traffic problems in the area, which
statement was received as Exhibit 12. She stated that licensing
a farm winery at this location is going to substantially
increase traffic in this residential area and affect its “usual
quietude and tranquility.” According to her, these roads are
not just busy during the morning and evening commute, but are in
constant use every day of the week and the volume of traffic has
steadily increased over the decades she has been in the area.
She stated, “This is the reality of living close to Clifton
Road, where the estimated thousands of cars travel daily, yet
somehow not being a close enough neighbor to the farm winery
premises to be impacted in terms of traffic, noise, property
values, or otherwise” (see Exhibit 12).
6. Ms. King further stated that although the residents
insisted on speed bumps on Yates Ford Road when the road was
upgraded from gravel to paved, these speed bumps only affect
speed, not the volume of traffic and extra vehicles adding to
traffic woes. The roads in the area have double yellow lines in
the middle but no shoulders or lighting. According to her,
turns at the intersections in the area are difficult and
BATES ON YATES 43
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
accidents have occurred. She referred to a photograph taken in
April 2015 at the end of Yates Ford Road showing a vehicle that
was driven by an “inebriated driver” onto a resident’s property
(see Exhibit 11, p. 16). However, this was not at an
intersection on the part of Yates Ford Road where Bates on Yates
is located, and she was unaware of any accidents at that
intersection. She conceded that there were already quite a few
vehicles on these roads, as there was a high volume of traffic
in Clifton but that the ABC Board had previously granted
licenses in that area. She further conceded that she was
speculating about whether operation of the winery in this case
would substantially increase traffic.
7. Mr. Leonard Moore testified regarding additional
concerns of the objectors that adding another farm winery would
“potentially” involve not having enough well water and may be a
drain on the septic system. He opined that all issues that
impact the existence of wineries and breweries in the Clifton
area impact the peace and tranquility of the residents. He
noted that Paradise Springs Winery was to have a maximum of 30
vehicles and 80 visitors per day, but morphed into a massive
retail and production establishment in their neighborhood,
hosting 300 vehicles and approximately 1,000 visitors in a day.
He stressed that there is no guarantee that Bates on Yates would
BATES ON YATES 44
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
not become something similar to that or make the existing
situation worse.
8. Mr. Moore questioned what the impact of additional
water usage would be on neighbors of the applicant winery, but
stated that there was no indication in the current application
that there would be an enormous increase in the amount of well
water used. He noted that the Virginia Department of Health
Water Resources prepares a report every five years and that the
last report indicated that the water table was “declining a
little bit.” He stated that a few residents in the neighborhood
have had to drill newer and deeper wells, but opined that there
is nothing the Commonwealth can do about this situation.
9. Mr. Moore raised similar concerns about the septic
system and stated that if Mr. Farmer has sales occurring on the
property, he will have visitor loads that would cause him to
need a “potentially more robust septic system.” He expressed
concern that if the license is approved, there is no way to
limit the number of visitors to the winery per day. He
explained that the typical septic field in the Clifton area has
a capacity of 500 to 750 gallons per day, and a family of four
would have approximately 250 gallons. According to him, there
had been issues with Paradise Springs Winery having too small a
field; however, the winery has since doubled the field and has
had a new system installed for disposing of wine effluent. Mr.
BATES ON YATES 45
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Farmer has indicated that he will not have a lot of visitors on
the property; however, Mr. Moore stated that the objectors are
concerned that this is one more license and one more set of all
of the same problems that occurred with Paradise Springs Winery.
10. Mr. Moore clarified that he was not implying that
Bates on Yates would have storm water issues and was sure Mr.
Farmer would comply with county requirements. He conceded that
there was no evidence that Mr. Farmer would have the same
problems as Paradise Springs Winery, but stated there was a
“fear” that the existing problems would become worse if another
winery is licensed in the area.
11. Mr. David Smith, who was a signatory to the “Bates on
Yates Presentation Overview,” Exhibit 11, testified in order to
add additional information regarding the traffic and condition
of the roads in the area of the subject property. He stated
that the roads in this area have been in the same condition
since 1969 with no improvements having been made since that
time. Yates Ford Road is 17 feet wide with no stripes down the
middle. Although other roads in this area are wider and have
stripes in the middle, there are still blind hills and curves.
There are no sidewalks or shoulders, and “it is not very safe to
pass other cars.” According to him, in the past few years there
has been an “overwhelming increase in the amount of traffic on
all of these roads.” He stated that there are currently
BATES ON YATES 46
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
approximately 10,000 vehicles a day traveling each way on these
roads, which vehicles are coming in from Prince William County
onto Henderson and Maple Branch Roads, Clifton Road, through the
town of Clifton and passing directly in front of Bates on Yates
(see diagram, Exhibit 11, p. 15). He further stated that
approximately 30,000 school children are bussed to Hemlock
Overlook Park on the other side of Yates Ford Road. Also, on
the side of Yates Ford Road where Bates on Yates is located,
there is a problem with the volume of commuter traffic. His
stated belief is that adding a new license will lead to a
substantial increase in traffic.9
12. Mr. Bates Farmer stated that his residence is located
at the corner of Clifton Road and Yates Ford Road, which is a
separate portion of Yates Ford Road from the one leading to
Paradise Springs Winery. He identified Bates on Yates on a
diagram showing the location of this property, Clifton Road, the
two separate parts of Yates Ford Road and Paradise Springs
Winery (see Exhibit 14, including a plat of Mr. Farmer’s
property). He further stated that this is not a quiet area, as
he hears a lot of noise beginning at approximately 5:00 a.m.
from commuters coming from Prince William County and driving
aggressively through Clifton during rush hour and on weekends.
9 Ms. Kathryn Weller and Mr. Joe Scott offered additional testimony primarily concerning the traffic problems occasioned by the operation of Paradise Springs Winery.
BATES ON YATES 47
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
13. In an effort to address this situation, approximately
one year ago Mr. Farmer initiated a traffic-calming study
through Supervisor Herrity’s office and secured the cooperation
of his immediate neighbors. The number of required signatures
was obtained on a petition, and a traffic study was conducted.
It was determined that the average speed on this road was 42
mph, although the posted speed limit was 25 mph, and there were
seven speed bumps. It was also determined that there was an
average of 1,169 vehicles on this road per day. An analysis was
then performed concerning how many speed bumps would be required
to make the road more palatable; however, the procedure to
secure that approval required the sending of ballots to 115
residents and obtaining at least a 60 percent response. Then if
50 percent of those responding did not vote in the affirmative,
it would be considered an invalid effort, and another attempt
could be made two years later. After reviewing these
procedures, Mr. Farmer decided not to pursue this avenue at the
present time. He stated that the corner of his property at
Yates Ford and Clifton Road was purchased by the Commonwealth of
Virginia so that VDOT could straighten that part of the road to
create an appropriate line of sight so that vehicles approaching
the stop sign would have sufficient visibility when making a
right or left turn.
BATES ON YATES 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
14. Mr. Farmer stated that with regard to water usage, he
would be using approximately 240 gallons during a two-month
period, which is a very low volume of water. He explained that
this is based on his production of two barrels consisting of
approximately 150 bottles of wine. He also stated that he has a
conventional septic system, which has a pump tank containing
1,500 gallons of water, and he has never run out of water or had
septic alarms go off. He stressed that he is not planning to
have vehicles by the thousands picnicking in his front yard, as
this is his home. As to the discharge of effluent from wine
making operations, he is working with the Department of
Environmental Quality (DEQ) to ensure that he complies with
their requirements and will follow the guidance they provide.
15. When asked why his establishment would not adversely
affect the current traffic situation, he responded that he has a
small operation and his objective was not to have people coming
into his house and getting drunk in his front yard in front of
his children. His stated objective is to “legally produce wine,
sell it legally,” and … “to be a responsible business owner,
who, through the approved distribution mechanisms,” will sell
his wine locally. He also expressed interest in participating
in governor’s cups and other professional activities and to do
it through the appropriate boards. He stated, “I am looking at
this as trying to follow the legal process that is available, to
BATES ON YATES 49
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
do what I am passionate about … and I am not looking to become …
a circus … I am not looking to be an attraction … that hundreds
of people come to.” He expressed no interest in being listed in
the Virginia Wine Association Wine Council or participating in
any advertising. He further stated, “I don’t want to market … I
want to manufacture my stuff … I want to sell it locally … I
want to sell it legally … and do what I am passionate about.”
16. With regard to having a tasting room, Mr. Farmer
stated that he had placed that request in his application to
preserve his option, so that he would not be precluded from
having a tasting room if his distribution processes did not
work. In that event, he would need a way to legally sell his
wine out of his residence. He did create a wet bar when he
remodeled his basement, but stated, “I have no desire to make my
house a large tasting room with multiple people.” He explained
that he has three small children, one of whom is eight months
old, which would be a factor in not expanding his business for
the next 10 years. With regard to parking on his property, Mr.
Farmer stated that he has a driveway where some people could
park. He has a gate on the property which he leaves closed and
plans to have it automated to keep his children inside.
17. Senior Special Agent Katie Kelly offered testimony
concerning Objection No. 2. She submitted a list of 16 ABC
licensees in the Clifton area, received into evidence as Exhibit
BATES ON YATES 50
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
15, and stated that there were a total of 1,537 licensees in
Fairfax County, inclusive of the 16 in the Clifton area. These
16 licensees range from restaurants to wineries. Paradise
Springs Winery has a farm winery license (license No. 56973) and
a winery license (license No. 66344). According to Agent Kelly,
it is not uncommon for a farm winery to have a winery license,
as it allows the manufacture of wine without the requirement
that 51 percent of grapes be under the control of the farm
winery. Both licenses are included on the list of 16 licensees.
There is one wholesaler on the list, which is the Virginia Wine
Distribution Company. This wholesaler is connected to Paradise
Springs Winery and allows the farm winery and winery to act on
behalf of Virginia Wine Distribution Company as an agent for
that entity in order to get product into the retail market.
Agent Kelly explained that without a wholesaler in place wine
cannot be sold outside of the tasting room.
18. Agent Kelly further stated that the 1,537 licensees in
Fairfax County include not only farm wineries and breweries, but
also restaurants, hotels, gourmet shops, convenience stores and
grocery stores. In addition to Paradise Springs Winery, the
Winery at Bull Run is located in Fairfax County and is the
second farm winery licensed in that county. Bates on Yates
would be the third farm winery, if licensed, and there are two
wineries. According to Agent Kelly, the breweries in Fairfax
BATES ON YATES 51
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
County are mostly commercial breweries and are located in
commercial settings. There are no limited breweries in the
county at this time.
19. Agent Kelly stated that Mr. Farmer meets the
qualifications for a farm winery in that he has a producing
vineyard orchard and has submitted the required list of
equipment, including winemaking, fermentation and storage. He
has also submitted all required documents needed to process the
application. Agent Kelly will be making a site visit, but
stated that the ABC Bureau of Law Enforcement (“Enforcement”)
has no objection to the granting of this license.
IV. ANALYSIS AND CONCLUSIONS: (Objections 1 and 2)
The following objections set forth in the hearing notice
are NOT SUBSTANTIATED:
1. The place to be occupied by the applicant is so located with respect to a residence and residential area that the operation of such place under the license will adversely affect real property values or substantially interfere with the usual quietude and tranquility of such residences and residential area. REF: Section 4.1-222 A.2.d. of the Code of Virginia.
2. The number of licenses existent in the locality is such that the granting of a license is detrimental to the interest, morals, safety, or welfare of the public. REF: Section 4.1-222 A.3. of the Code of Virginia.
BATES ON YATES 52
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Regarding Objection 1, it is provided in Code Section 4.1-
222 A.2.d that the Board may refuse to grant a license if the
place to be occupied by the applicant:
Is so located with respect to any residence or residential area that the operation of such place under such license will adversely affect real property values or substantially interfere with the usual quietude and tranquility of such residence or residential area (emphasis added).
On behalf of the objectors, Mr. Moore asserted that this
objection should be substantiated on the basis of evidence
submitted concerning the traffic problems, parking problems,
interference with equine enjoyment of the area, noise, and other
issues involving the potential impacts on water usage, septic
concerns in terms of environmental protection and concerns about
the eventual growth and expansion of Bates on Yates. These
concerns stem from the growth of Paradise Springs Winery since
2009, which Mr. Moore described as follows: “We have had another
small, boutique winery that metastasized into a Godzilla … we
don’t want to see that happen again, and we don’t see where we
have … any guarantee from either VABC or Bates on Yates to that
end.”
Counsel for Bates on Yates asserted that with respect to
these objections, Mr. Farmer’s testimony demonstrated that he
will be a responsible corporate citizen and operate the winery
in a manner that is consistent with the law. As far as traffic
BATES ON YATES 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
is concerned, the roads in the area were already very busy and
is more of a problem on the side of Yates Ford Road where
Paradise Springs Winery is located. Counsel noted that there is
a corner portion of the property next to Bates on Yates that is
owned by the Commonwealth of Virginia where a line of sight has
been created for safety reasons. Additionally, the speed limit
on that road is 25 mph, and there are stop signs at the
intersection of Yates Ford Road and Clifton Road. Counsel
finally asserted that Mr. Farmer’s testimony about how he would
conduct his operations speaks for itself.
In the Hearing Officer’s view, the objectors failed to
prove by a preponderance of the evidence that the operation of
the applicant winery under the ABC license will adversely affect
real property values or substantially interfere with the usual
quietude and tranquility of the residences and residential area.
The testimony of the objectors largely involved speculation that
Mr. Farmer’s operation of the winery could cause or add to the
same problems with traffic and parking as those at Paradise
Springs Winery. The concerns of the objectors expressed in the
written summary, included in Exhibit 11, were that the lot of
the subject property is less than two acres. Consequently,
there will be limited space to accommodate visitors, and the
winery will have no control over the overflow parking. This
would result in vehicles parking on the roads so as to block or
BATES ON YATES 54
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
constrict passage, thereby creating a public safety hazard. It
was stated that this “potential blockage” would present a
catastrophic safety situation if emergency and police vehicles
could not pass. It was represented that this is the situation
that occurred at Paradise Springs Winery.
It was undisputed that the roads in this area are very busy
and have been for some time and that this area is not a quiet
neighborhood. Ms. Jane King stated that these roads are not
just busy during the morning and evening commute, but are in
constant use every day of the week and the volume of traffic has
steadily increased over the decades she has been in the area.
She conceded that there was a high volume of traffic in Clifton
but that the ABC Board had previously granted licenses in the
area. She further conceded that she was speculating about
whether operation of the winery in this case would substantially
increase traffic.
Mr. David Smith stated that the roads in this area have
been in the same condition since 1969 with no improvements
having been made since that time. According to him, in the past
few years there has been an “overwhelming increase in the amount
of traffic on all of these roads.” Most of the objectors
attributed the increase in traffic to the operation of Paradise
Springs Winery since 2009 and commuter traffic and expressed a
BATES ON YATES 55
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
fear that the operation of another farm winery in the area would
further increase traffic.
It is determined in this case that the operation of Bates
on Yates will not substantially interfere with the usual
quietude and tranquility of the residential area, as the area is
not usually quiet and tranquil. Additionally, it would be
unfair to hold Mr. Farmer responsible for the alleged problems
with Paradise Springs Winery and to assume and speculate that
the operation of his winery would cause the same types of
problems. There was no credible evidence establishing that Mr.
Farmer would further deplete the well water supply in the area
or fail to comply with the legal requirements regarding his
septic system.
In reaching this conclusion, the testimony of Mr. Farmer
has been considered. He stressed that he is not planning to
have vehicles by the thousands with people picnicking in his
front yard, as this is his home. As to the discharge of
effluent from wine making operations, he is working with the
Department of Environmental Quality (DEQ) to ensure that he
complies with their requirements and will follow the guidance
they provide. When asked why his establishment would not
adversely affect the current traffic situation, he responded
that he has a small operation and his objective was not to have
people coming into his house and getting drunk in his front yard
BATES ON YATES 56
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
in front of his children. His stated objective is to “legally
produce wine, sell it legally,” and … “to be a responsible
business owner, who, through the approved distribution
mechanisms,” will sell his wine locally. He also expressed
interest in participating in governor’s cups and other
professional activities and to do it through the appropriate
boards. He stated, “I am looking at this as trying to follow
the legal process that is available, to do what I am passionate
about … and I am not looking to become … a circus … I am not
looking to be an attraction … that hundreds of people come to.”
He expressed no interest in being listed in the Virginia Wine
Association Wine Council or participating in any advertising.
He further stated, “I don’t want to market … I want to
manufacture my stuff … I want to sell it locally … I want to
sell it legally … and do what I am passionate about.”
He further stated that he has no plans for expansion
within the next 10 years primarily because of his three young
children. As discussed herein, he impressed the Hearing Officer
as a very responsible businessman, who will operate his winery
in accordance with all ABC and legal requirements.
With regard to Objection 2, it is provided in Code Section
4.1-222 A.3. that the Board may refuse to grant any license if:
The number of licenses existent in the locality is such that the granting of the license is detrimental to the interest, morals, safety or welfare of the
BATES ON YATES 57
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
public. In reaching such conclusion the Board shall consider the (1) character of, population of, the number of similar licenses and the number of all licenses existent in the particular county, city or town and the immediate neighborhood concerned; (ii) effect which a new license may have on such county, city, town or neighborhood in conforming with the purpose of this title; and (iii) objections, if any, which may have been filed by a local governing body or local residents (emphasis added).
The evidence demonstrated, as to No. 1 of the mandated
considerations, that there are 16 ABC licensees in the immediate
area of Clifton, including only one farm winery license, one
winery license and one wholesale distributor, all associated
with Paradise Springs Winery. The remaining licensees are
restaurants, a grocery store, a convenience store and a wine
shop and tasting room (see Exhibit 15). There are 1,537 ABC
licenses in Fairfax County inclusive of the 16 in the Clifton
area. Agent Kelly stated that the 1,537 licensees in Fairfax
County includes not only farm wineries and breweries, but also
restaurants, hotels, gourmet shops, convenience stores and
grocery stores. In addition to Paradise Springs Winery, the
Winery at Bull Run is located in Fairfax County and is the
second farm winery licensed in that county. Bates on Yates
would be the third farm winery, if licensed, and there are two
wineries, one associated with Paradise Springs Winery and the
other with the Winery at Bull Run. According to Agent Kelly,
the breweries in Fairfax County are mostly commercial breweries
BATES ON YATES 58
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
and are located in commercial settings. There are no limited
breweries in the county at this time. In the Hearing Officer’s
view, the number of licensees in the county is not such as would
be detrimental to the interest, morals, safety or welfare of the
public.
As to item No. 2 set forth in the mandated considerations,
the Hearing Officer has concluded that the “fear” on the part of
the objectors that the operation of Bates on Yates would
increase the already existent traffic volume in the area or
cause an amount of overflow parking that would create a danger
to public safety or place a drain on the water supply or septic
system is speculative and cannot be relied on to deny a farm
winery license to Mr. Farmer.
As to item No. 3 set forth in the mandated considerations,
it is noted that the objection filed on behalf of the Fairfax
County Board of Supervisors and the Zoning Administrator was
only with reference to Objection 3, alleging that the ABC Board
was without authority to approve issuance of the license in this
case, as discussed herein. The County was not a participant
concerning Objections 1 and 2.
For all of these reasons, Objections 1 and 2 are not
substantiated.
Accordingly, the following DECISION is entered.
BATES ON YATES 59
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
DECISION:
(Farm Winery – Class A) That the license is, hereby, granted with all privileges
appurtenant thereto.
Entered this 2nd day of March, 2017.
Clara A. Williamson
Administrative Hearing Officer
Department of Alcoholic Beverage Control COMMISSIONERS 2901 HERMITAGE ROAD JEFFREY L. PAINTER, CHAIRMAN P. O. BOX 27491 JUDITH G. NAPIER RICHMOND, VIRGINIA 23261 HENRY L. MARSH, III (804) 213-4400 FAX: (804) 213-4411 www.abc.virginia.gov CHIEF OPERATING OFFICER/SECRETARY TO THE BOARD TRAVIS G. HILL
NOTICE OF INITIAL DECISION AND RIGHT OF APPEAL IN THE MATTER OF: BATES ON YATES, L.L.C.
BATES ON YATES 12211 YATES FORD ROAD CLIFTON, VIRGINIA 20124-2137 SENT VIA STANDARD MAIL
APPLICATION FOR: FARM WINERY – CLASS A INCIDENT NO.: 201607280060 Enclosed is the decision on the above license application. Interested parties are entitled to an appeal hearing before the Board at its central office in Richmond. If such a hearing is desired, the Board must be notified in writing within thirty days after the date of the mailing of this notice. All interested parties will be notified of the date and time of the appeal hearing. The decision has been filed with the Board for its review. If the Board proposes to modify the decision, Special Notice of the proposal, with similar notice of right of appeal, will be sent to the interested parties by the appeal deadline. In the absence of an appeal, your new license, if issued, will become effective when it (along with the Board Order) is delivered by the special agent. Should you have any questions, please contact J. Patrick Griffin at [email protected]; Robert L. Scott at [email protected]; or Carolyn Brown at [email protected]. Very truly yours,
Clara A. Williamson
Administrative Hearing Officer Mailing Date: 03/02/2017 Appeal Deadline: 04/03/2017
CC: Bates on Yates, LLC Enforcement Brandon Murrill, Esq. Laura S. Gori, Esq. Leonard H. Moore, Jr. Dan Voss
Jane King David Smith Kathryn Weller Joseph B. Scott Aileen Mitchell Samuel Hillenburg
File
C o u n t y o f F a i r f a x , V i r g i n i a To protect and enrich the quality of life for the people, neighborhoods and diverse communities of Fairfax County
Office of the County Attorney Suite 549, 12000 Government Center Parkway
Fairfax, Virginia 22035-0064 Phone: (703) 324-2421; Fax: (703) 324-2665
www.fairfaxcounty.gov
March 24, 2017
VIA FIRST-CLASS MAIL, FACSIMILE, AND ELECTRONIC MAIL
J. Patrick Griffin, Chief Hearing Officer Virginia Alcoholic Beverage Control Board Central Office, P.O. Box 27491 Richmond, VA 23261-7491
RE: Notice of Appeal of Initial Decision - Bates on Yates Incident No. 201607280060
Dear Mr. Griffin:
This letter serves as notice that the Board of Supervisors of Fairfax County, Virginia, is appealing Administrative Hearing Officer Williamson's initial decision (enclosed) regarding Bates on Yates' farm winery license application. The Board of Supervisors' appeal will focus on Objection No. 3.
Please notify me of the appeal hearing date and any requirements associated with the appeal.
Thank you for your attention to this notice of appeal.
Very truly yours,
Laura S. Gori Senior Assistant County Attorney
Enclosure
cc: Elizabeth D. Teare, County Attorney Leslie B. Johnson, Zoning Administrator Special Agent K. Kelly Brandon Murrill, Esq. Mr. Hal Moore, Concerned Clifton Residents
mrm S9ih sfmr
COMMONWEALTH of VIRGINIA n m '1 "«BA? Department of Alcoholic Beverage Control
COMMISSIONERS • 2901 HERMITAGE ROAD JEFFREY L. PAINTER, CHAIRMAN R °-B0X 27491
JUDITH G NAPIER RICHMOND, VIRGINIA 23261 HENRY L. MARSH, 111 ' (804)213-4400
FAX: (804)213-4411 vvww.abo.virginia.gov
CHIEF OPERATING OFFICER/SECRETARY TO THE BOARD TRAVIS G. HILL
NOTICE OF INITIAL DECISION AND RIGHT OF APPEAL
IN THE MATTER OF: BATES ON YATES, L.L.C. BATES ON YATES 12211 YATES FORD ROAD CLIFTON, VIRGINIA 20124-2137 SENT VIA STANDARD MAIL
APPLICATION FOR: FARM WINERY - CLASS A
INCIDENT NO.: 201607280060
Enclosed is the decision on the above license application.
Interested parties are entitled to an appeal hearing before the Board at its central office in Richmond. If such a hearing is desired, the Board must be notified in writing within thirty days after the date of the mailing of this notice. All interested parties will be notified of the date and time of the appeal hearing.
The decision has been filed with the Board for its review. If the Board proposes to modify the decision, Special Notice of the proposal, with similar notice of right of appeal, will be sent to the interested parties by the appeal deadline.
In the absence of an appeal, your new license, if issued, will become effective when it (along with the Board Order) is delivered by the special agent. Should you have any questions, please contact J. Patrick Griffin at [email protected]; Robert L. Scott at [email protected]; or Carolyn Brown at [email protected].
Very truly yours,
(oAsu Clara A. Williamson Administrative Hearing Officer
Mailing Date: 03/02/2017 Appeal Deadline: 04/03/2017
CC: Bates on Yates, LLC Enforcement Brandon Murrill, Esq. Laura S. Gori, Esq. Leonard H. Moore, Jr. Dan Voss
Jane King David Smith Kathiyn Weller Joseph B. Scott Aileen Mitchell Samuel Hillenburg
File
Coun ty o f Fa i r f ax , V i rg in i a To protect and enrich the quality of life for the people, neighborhoods and diverse communities of Fairfax County
Office of the County Attorney Suite 549, 12000 Government Center Parkway
Fairfax, Virginia 22035-0064 Phone: (703) 324-2421; Fax: (703) 324-2665
www.fairfaxcounty.gov
June 7, 2017
VIA FIRST-CLASS MAIL AND ELECTRONIC MAIL
Jeffrey L. Painter, Chairman Judith G. Napier, Commissioner S. Christopher Curtis, Deputy Secretary Virginia Alcoholic Beverage Control Board Central Office, P.O. Box 27491 Richmond, VA 23261-7491
RE: Grounds for Appeal of Initial Decision - Bates on Yates Incident No. 201607280060
Dear Chairman Painter, Commissioner Napier, and Deputy Secretary Curtis:
The Board of Supervisors of Fairfax County, by counsel, respectfully submits its assignments of error on the following grounds:
I. The Board of Supervisors assigns error to certain factual findings as not being supported by substantial evidence in the Record.
Factual Finding 7: Two County witnesses, St. Clair Williams and Mavis Stanfield, did not ask the Applicant to provide photographs showing continuous usage. Williamson Dec. at 8; Tr. at 75. Instead, Ms. Stanfield told him that they could not waive the 5-acre minimum requirement for agriculture, but she would be willing to examine materials that might indicate that farming had occurred on the Property continuously so as to establish a nonconforming use. Tr. at 75. A nonconforming use determination is distinct from a buildable lot determination. See Zoning Ordinance § 2-405; c.f. Zoning Ordinance § 15-101. The Applicant did not pursue the argument that he had a nonconforming use, and the Record lacked substantial evidence of an ongoing agricultural use of the Property. Tr. at 40.
The Board of Supervisors also challenges Factual Finding 7 to the extent it finds that the Applicant hand-delivered materials to the Zoning Administrator, Leslie Johnson. Williamson Dec. at 9. The County witnesses, and the Zoning Administrator in particular, testified that they never saw this submission until the week before the hearing and the Department of Planning and Zoning had no record that the Applicant ever submitted a package for Ms. Johnson. Tr. at 35-36. Mr. Williams testified that he never saw the purported submission from the Applicant before sending his email on April 30, 2015. Mr.
Williams sent his email at 9:30 a.m. on the same day of the Applicant's alleged submission. Record, Exhibit 6.
Factual Finding 8: There is no evidence in the Record of "significant" expenses incurred by the Applicant.
Factual Finding 11: The Board disputes factual finding 11 to the extent it states that Mr. Williams' email granted "approval" to the Applicant to operate as a farm winery. Mr. Williams testified that the intent of his email was to provide copies of relevant Virginia Code provisions, not to formally approve a use. Tr. at 63-64, 66. Further, the Zoning Administrator testified that she had no knowledge of the email and did not approve it. Tr. at 37-38, 77.
Factual Finding 12: The Board assigns error to factual finding 12, because it blurs the lines between legal and factual findings regarding the application of Zoning Ordinance § 2-405. ft also takes Ms. Johnson's testimony out of context, because regardless of which Zoning Ordinance was in effect when the Applicant's lot was developed, she testified that § 2-405 did not entitle him to operate an agricultural use on his lot now. Tr. at 34-35.
Factual Finding 15: The Board assigns error to factual finding 15, because it also blurs the lines between legal and factual findings. Mr. Williams' April 30, 2015, email was not a "determination" concerning the farm winery. Tr. at 64. Mr. Williams testified that he did not get the approval of any of his supervisors before sending the email, and he did not intend to make a determination in sending it. Tr. at 65-66. Ms. Johnson also testified that there was no context to the email and it lacked the detail and finality of a zoning determination. Tr. at 38. Mr. Williams also testified that no formal application or request for a determination had been submitted before he sent his April 30, 2015, email. Tr. at 70.
Factual Finding 19: The Board assigns error to the finding that the Applicant hand-delivered materials to Ms. Johnson. Ms. Johnson never received the materials and DPZ has no record of any delivery from the Applicant. Tr. at 35-36.
II. The hearing officer erred in finding that the General Assembly intended that the ABC Board rule on the validity of a Fairfax County zoning provision.
In disposing of Fairfax County's objection (Objection 3) to the pending farm winery license application, Judge Williamson invalidated Fairfax County's 5-acre minimum requirement in the Zoning Ordinance definition of "agriculture." She stated that the "General Assembly intended that the ABC Board rule on whether the locality's asserted five-acre minimum requirement for operation of a farm winery is consistent with state law [and] whether state law preempts such a restriction." Williamson Dec. at 32. She also cited the "Farm Winery Zoning Act" (FWZA), Virginia Code § 15.2-2288.3, in deciding that the County's 5-acre minimum requirement for "agriculture" is "unreasonable" and in conflict with state law. Williamson Dec. at 33. For the reasons below, Judge Williamson exceeded her authority in adjudicating the validity of a County
2
zoning provision, and she impermissibly construed the County's Zoning Ordinance to find a conflict with state law that does not exist.
A. The reasonableness of a local zoning regulation is a question for the courts.
There is a "presumption favoring the validity of municipal ordinances, and the presumption governs unless it is overcome by unreasonableness apparent on the face of the ordinance or by extrinsic evidence which clearly establishes the unreasonableness." City of Norfolk v. Tiny House, 281 S.E.2d 836, 839 (Va. 1981). As detailed below, the ABC Board has no authority to adjudicate the reasonableness of the County's Zoning Ordinance definition of agriculture. See Cty. of Chesterfield v. Windy Hill, 559 S.E.2d 627, 630 (Va. 2002) (observing that "[tjhere is no language in the ABC Act which takes from local governments the powers conferred upon them by zoning statutes to regulate land use"). The Supreme Court of Virginia has already determined that the question of whether an ordinance is reasonable "is a question of law for the courts." Id. (recognizing that if police power, exercised through zoning regulations, is broad enough to restrict First Amendment rights, surely it can limit "rights of lesser dignity"). The General Assembly has determined that every action contesting a decision of the local governing body adopting a proposed zoning ordinance or zoning amendment "shall be filed within thirty days of the decision with the circuit court having jurisdiction of the land affected by the decision." Va. Code § 15.2-2285(F). The Applicant's challenge to Fairfax County's zoning definition of "agriculture" had to be brought, if at all, in court, and Judge Williamson erred in adjudicating that issue in an ABC objection hearing.
B. Chapter 710 of the Acts of Assembly conferred on the ABC Board no new authority over zoning.
The ABC Board is a creature of statute, with general powers to "[cjontrol the possession, sale, transportation and delivery of alcoholic beverages." Va. Code § 4.1-103. The ABC Board has numerous other powers related to its authority over the sale and distribution of alcohol, but those powers do not include any authority over land use and zoning. Id. In fact, the Supreme Court has already held that there is no language in the ABC Act that takes from local governments the power of zoning to regulate land use. Tiny House, 281 S.E.2d at 841 (finding "no manifest intention on the part of the legislature to grant such sweeping and unbridled authority to the ABC Commission"). As such, the ABC Board has no authority to adjudicate the reasonableness of the County's definition of agriculture. See Windy Hill, 559 S.E.2d at 630. Nothing in Blouse Bill 879, adopted as Chapter 710 of the 2016 Acts of Assembly, confers on the ABC Board any additional powers over local zoning.
In adopting Chapter 710 of the Acts of Assembly (formerly Blouse Bill 879), the General Assembly prohibited farm wineries from being established in the R-C District. The General Assembly also vested zoning authority in localities to make zoning decisions before the ABC Board may issue a farm winery license. This is clear from the definition of "farm winery" and enactment clauses in Chapter 710. As of July 1, 2016, a "farm winery," is defined as an establishment "located on a farm in the Commonwealth on land
3
zoned agricultural with a producing vineyard," and the term "land zoned agricultural" means "(1) land zoned as an agricultural district or classification or (2) land otherwise permitted by a locality for farm winery use." Va. Code § 4.1-100. For purposes of this " definition, '"land zoned agricultural' does not include land zoned 'residential conservation.'" Id. (emphasis added).
The Property at issue in this case is zoned "residential conservation" (R-C) and, for that reason alone, would not be eligible for a farm winery, except for the third enactment clause in Chapter 710. That clause carved out a very limited exemption for an applicant in the R-C District that submitted its application before July 1, 2016, and "is in compliance with the local zoning ordinance as an agricultural district or classification or as otherwise permitted by a locality for farm winery or limited brewery use." See 2016 Va. Acts ch. 710, cl. 3 (emphasis added.) By including this language, the General Assembly not only contemplated that localities would limit the location of farm wineries through local zoning authority, but also expressly required the ABC Board to consider and defer to local zoning before issuing a license. Notably, the enactment clause became part of the Acts of Assembly and is not codified in Title 4.1. Judge Williamson thus erred in finding that the third enactment clause is codified in Va. Code § 4.1-100. Williamson Dec. at 31.
Of course, even if it did fall under Title 4.1, the clause still would not invite the ABC Board to rule on the reasonableness of local zoning regulations. On the contrary, the plain language—"as otherwise permitted by a locality for farm winery" use— demonstrates the General Assembly's intent that a locality determine whether the farm winery use is otherwise permitted. "The paramount principle of statutory interpretation is to interpret the statute as written." Miller & Rhoads Bldg., L.L. C. v. City of Richmond, 790 S.E.2d 484, 486 (Va. 2016) (internal citations omitted); see Carter v. Nelms, 131 S.E.2d 401, 406-07 (Va. 1963) ("We must determine the legislative intent by what the statute says and not by what we think it should have said."). Elere, a farm winery use is not permitted by the locality.
Fairfax County's Zoning Administrator properly determined that a farm winery is not a permitted use on the Property, because the 1.86-acre parcel does not meet the 5-acre minimum required under the definition of "agriculture." See Tr. at 25, 31; Record, Ex. 3. As the official charged with administering Fairfax County's Zoning Ordinance, her determination is entitled to deference. See Master son v. Bd. of Zoning Appeals, 353 S.E.2d 727, 733 (Va. 1987) (finding that the "consistent administrative construction of an ordinance by the officials charged with its enforcement is entitled to great weight").
Rather than accept Fairfax County's position that the use is not permitted on a 1.86-acre lot, Judge Williamson decided that the use is permitted, but only after invalidating Fairfax County's definition of "agriculture." Yet this issue wasn't raised at
4
the time of the hearing, falls outside the scope of the ABC Board's jurisdiction, and is based on a ground—an alleged conflict with state law—that is completely without merit.
C. Deciding the case on an issue raised after the hearing ended deprived Fairfax County of due process.
Before the hearing in October 2016, the Applicant's counsel submitted to the ABC Board a statement of its arguments. His statement raised only the following arguments:
(i) Section 2-405 of the Zoning Ordinance allows the Applicant to operate a farm winery on the Property.
(ii) House Bill 879 doesn't preclude the ABC Board from issuing a license to the Applicant, because the Applicant submitted its application before July 1, 2016, and the "Grandfathering Exception" (Zoning Ordinance § 2-405) allows the use.
(iii) The Property is not so located that it would adversely affect property values or interfere with quietude and tranquility.
(iv) The number of licenses in the locality is not such that granting the license would be detrimental to the interest, morals, safety or welfare of the public.
See Applicant's October 11, 2016, submission to the ABC Board.
The Applicant never challenged the validity of Fairfax County's definition of "agriculture" in its pre-hearing letter, in its opening statement, or through its witnesses or evidence. The first time it raised this issue was in its written closing argument, submitted more than a week after the hearing ended.1 As such, whether the 5-acre minimum was "necessary" for public health, safety, and welfare or allegedly was in conflict with state law was not even an issue during the hearing. Judge Williamson therefore erred in finding that Fairfax County failed to present sufficient evidence that the zoning provision was "necessary," when that wasn't even an issue at the hearing. Not only did Judge Williamson exceed her authority in ruling on the validity of the underlying Zoning Ordinance—an issue for courts to decide—but she also deprived Fairfax County of due process in making a finding based on an argument raised only after the hearing had ended.2 As a result, there was never a hearing on the issue and the County had no opportunity to address it before Judge Williamson rendered her decision.
1 The Applicant also raised its argument under Ya. Code § 15.2-2311(C) for the first time in its post-hearing closing argument.
2 While the parties did submit additional letters on December 12, 2016, they did so at the direction of Judge Williamson, who requested "clarification regarding a point made by Mr. Murrill [Applicant's counsel]" after he stated in his closing argument that
5
D. There is no conflict between Fairfax County's definition of "agriculture" and the Farm Winery Zoning Act.
Fairfax County has authority to regulate uses of land through zoning under Title 15.2. The purpose of zoning is to "encourage localities to improve the public health, safety, convenience, and welfare of their citizens." Va. Code § 15.2-2200. "Zoning" is defined as the process of "classifying land within a locality into areas and districts and prescribing in each district regulations concerning uses to which land, buildings, and structures within such areas and districts may be put." Va. Code § 15.2-2201.
Under this zoning authority, Fairfax County is authorized to "regulate, restrict, permit, prohibit, and determine the use of land ... for agricultural" and other specified uses. Va. Code § 15.2-2280(1). Further, the County has exclusive authority to determine the area of land to be occupied by buildings, structures and uses. Va. Code § 15.2-2280(3); see also Va. Code § 15.2-2284 (requiring zoning ordinances and districts to be drawn with consideration for "the suitability of property for various uses," the "requirements of the community as to land for various purposes," and the encouragement of the most appropriate use of land throughout the locality).
These regulations are codified into a Zoning Ordinance, the general purpose of which is "promoting the health, safety, or general welfare of the public." Va. Code § 15.2-2283. Under these provisions, the Board of Supervisors may classify the County into districts, decide in which districts agricultural uses will be allowed, and determine the area of land that such uses may occupy. The zoning definition of agriculture is directed at achieving the orderly use of land, and it applies uniformly across the County to all agricultural uses. In enacting its Zoning Ordinance, the Board of Supervisors determined that five acres is the minimum area required for "agriculture," a use that includes not only crops and pasturage, but also wholesale sales of farm products.3 Any challenge to the Board's adoption of that definition must be brought in court. See § 15.2-2285(F).
The Board of Supervisors has established that the R-C District, where the Property is located, is not an agricultural district or classification. It is a residential
"upon further research, counsel believes that a Virginia circuit court is the proper forum for a determination of whether the Applicant has a vested right to a farm winery use on his property." Thus, the additional letters addressed only that narrow issue.
3 The definition of "agriculture," as set forth in Exhibit 2 in the Record, states in relevant part, as follows:
The use of a tract of land not less than five (5) acres in size for (a) the tilling of the soil; (b) the growing of crops, nursery stock or plant growth of any kind, including forestry; (c) pasturage; (d) horticulture; (e) dairying; (f) floriculture; or (g) the raising of poultry and livestock; and (h) the wholesale sales of any of the foregoing products.
Record, Exhibit 2; Tr. at 26-27.
6
district where agriculture is a permitted use, but only in accordance with its definition under the Zoning Ordinance.
Fairfax County's definition of "agriculture" in the Zoning Ordinance does not conflict with state law governing licensed farm wineries. Virginia Code § 15.2-2288.3, entitled "Licensed Farm Wineries; local regulation of certain activities" (the "Farm Winery Zoning Act" or "FWZA"). The FWZA does not even apply to the Property. It applies only to licensed farm wineries, and Bates on Yates' license application is still under appeal. Further, the definition of "agriculture" is not a local regulation on licensed farm wineries; it is a type of use under the Zoning Ordinance. Judge Williamson erred in finding the definition of "agriculture" to be an "unreasonable zoning restriction on [the] operation of a farm winery in conflict with state policy due to a purported conflict with FWZA. Far from "unnecessary," it is patently essential that a locality such as Fairfax County identify and regulate agricultural uses within its boundaries.
To the extent that Judge Williamson's decision could also be construed as finding a conflict between the County's definition of "agriculture" and Title 4.1, no such conflict exists. Although the ABC Board has exclusive authority to control manufacture, bottling, sale, drinking, use, and dispensing of alcoholic beverages (Va. Code § 4.1-128), the County's definition of "agriculture" is not a regulation of any of those activities. See Tiny House, 281 S.E.2d at 842 (observing that "[i]f] both [a] statute and ordinance can stand together, courts are obliged to harmonize them, rather than nullifying the ordinance"). The County has identified, through the zoning authority vested by the General Assembly, where agricultural uses, including farm wineries, may lawfully be located within the County. The ABC Board cannot usurp police power of local governments or prevent them from achieving the orderly use of land through zoning ordinances. Tiny House, 281 S.E.2d at 841 (holding that the ABC Board's "exclusive authority to license and regulate the sale and purchase of alcoholic beverages in Virginia does not preclude a municipality from utilizing valid zoning ordinances to regulate the location of an establishment selling such alcoholic beverages").
In Tiny House, a zoning condition was not a prohibition measure outlawed by Va. Code § 4.1-128, but a proper exercise of a locality's authority "to prevent the use of land in a manner [it] has deemed detrimental to the general welfare of its inhabitants and deemed as having a deleterious effect on the community. 281 S.E.2d at 842. As in Tiny House, Va. Code § 4.1-128 does not apply to or prohibit Fairfax County's lawful exercise of zoning authority to determine the location of agricultural uses. To the extent Judge Williamson found a conflict between the County's zoning definition of agriculture and Title 4.1, she erred in doing so. The relevant enactment clause is not found in Title 4.1, and the definition of "agriculture" does not infringe on the ABC Board's authority to regulate the manufacture and sale of alcohol.
For all of these reasons, there is no conflict between the County's use of its Zoning Ordinance to regulate the location of agricultural uses and the FWZA or Title 4.1. Thus, even if the ABC Board had authority to adjudicate the validity of local zoning regulations, the definition of agriculture is unassailable on those grounds. See Windy Hill,
7
559 S.E.2d at 629 (observing that "when there is no conflict between the terms of the ABC Act and those of a municipal ordinance, the ordinance may stand").
II. Judge Williamson erred in finding that Zoning Ordinance § 2-405 entitles the Applicant to operate a farm winery on the Property.
In 2005, Fairfax County issued a Buildable Lot Determination to the Applicant under Zoning Ordinance § 2-405.4 See Record, Exhibit 4. The Zoning Administrator, who is vested with authority to interpret and administer the Zoning Ordinance,5 testified that the purpose of the Applicant's buildable lot determination was to establish that a new dwelling could be constructed on the Property, even though the lot does not meet the five-acre minimum lot area of the district.6 Tr. at 33, 52-53 (testifying that minimum district size and lot area are not the same as the minimum requirements of a use within a district). She further explained, however, that this buildable lot determination never entitled the Applicant to operate a farm winery on the Property, because the definitional use requirements of "agriculture" in Article 20 of the Zoning Ordinance still apply under the phrase, "provided all other regulations of this Ordinance can be satisfied" and those use requirements cannot be met on the Property. Tr. at 34-35. Judge Williamson therefore erred in finding that there was "no allegation that the Applicant failed to comply with 'all other requirements' of Section 2-405 of the Ordinance." Williamson Dec. at 35; see also Board of Supervisors' Oct. 31, 2016, submission to Judge Williamson.
Judge Williamson also erred in finding that Section 2-405 "entitles the Applicant to operate a farm winery on his property." Williamson Decision at 33. The buildable lot
4 Zoning Ordinance § 2-405(1) provides, in relevant part, as follows:
If a lot was recorded prior to March 1,1941, or if a lot was recorded prior to the effective date of this Ordinance, and said lot met the requirements of the Zoning Ordinance in effect at the time of recordation, then such lot, either as a single lot or in combination with other such lots pursuant to a Building Permit, may be used for any use permitted in the zoning district in which located under this Ordinance even though the lot(s) does not meet the minimum district size, lot area, lot width and/or shape factor requirements of the district, provided all other regulations of this Ordinance can be satisfied.
See Record, Exhibit 7 (emphasis added). 5 Va. Code § 15.2-2286(A)(4); Zoning Ordinance § 18-101. 6 Residential dwellings are permitted in the R-C District, subject only to the
minimum lot area requirements of the district. In other words, there are no additional lot area or other zoning regulations that would preclude construction of a dwelling on the Property. Agriculture, by contrast, is subject to separate use regulations in Article 20, one of which is a five-acre minimum for the use. See Zoning Ordinance §§ 2-405(1), 3-C02 and 3-C06(2); c.f Zoning Ordinance §§ 3-C02 and 20-300. Zoning Ordinance §§ 2-405(1) does not waive compliance with separate use regulations; rather, it expressly requires any such additional regulations to be satisfied.
8
determination does not represent the blank check that the Applicant made it out to be. It does not authorize the Applicant to engage in any use on his Property without constraints.7 Instead, as the provision expressly states, the lot may be used for any use permitted in the district, "provided all other regulations of this Ordinance can be satisfied." The five-acre minimum requirement for agriculture is another "regulation of [the] Ordinance," not just a regulation of the R-C District—one that cannot be met on the Property. Thus, a farm winery is not permitted even under the buildable lot determination, because it would not be in compliance with Article 20.
III. The ABC Board has no authority to consider the Applicant's vested rights claim.
To the extent that Judge Williamson found that the Applicant acquired a "vested right" to a farm winery use under Virginia Code § 15.2-2311(C) that is binding on Fairfax County, she erred in making such a finding. Williamson Dec. at 35-36. She properly recognized, however, that both parties asserted that vested rights determinations should be made by a circuit court and stated that the issue was not before her. Williamson Dec. at 37.
The judicial power of the Commonwealth is vested in the Supreme Court and in other courts established by the General Assembly. Va. Const, art. VI, § 1. The power of the judiciary to adjudicate cases emanates from the Virginia Constitution and is not shared with any other branch of government. Holland v. Johnson, 403 S.E.2d 356, 358 (Va. 1991); see Kamper v. Hawkins, 3 Va. (1 Va. Cas.) 20, 30-31 (1789). A vested right in a land use, if one exists, is a property right created and protected by law. Holland, 403 S.E.2d at 358. Thus, "[a]n adjudication regarding the creation, existence, or termination of [a vested] right can be made only by a court of competent jurisdiction." Id.
The Holland decision has been superseded by statute to the extent that the General Assembly has also empowered the Zoning Administrator to make vested rights determinations. See Va. Code § 15.2-2286(A)(4). Her statutory authority is not exclusive, however, and does not divest circuit courts of their power to do the same. Crucible, 677 S.E.2d at 286. In contrast to the circuit courts and Zoning Administrator, the ABC Board has no statutory authority to make vested rights determinations.
7 Zoning Ordinance § 10-102(3), for example, permits barns and other structures incidental to an agricultural use in certain residential districts and on a tract of land not less than five acres. Because this five-acre minimum is a requirement of the use, not a lot area requirement of the district, it would still apply to the Property, regardless of the buildable lot determination. Further, Article 10 allows for servants quarters, but only in low density residential districts and only "on a lot of two (2) acres or more." Zoning Ordinance § 10-102(21). Again, the Property would not qualify for servants quarters, despite the buildable lot determination, because it cannot satisfy the two-acre minimum area requirement of the use.
9
Here, the Applicant did not ask the Zoning Administrator for a vested rights determination. He also did not raise a vested rights until filing his closing argument to Judge Williamson on October 31, 2016, after the hearing. Raising a vested rights defense now amounts to an improper collateral attack on the Zoning Administrator's determination, which had to be raised, if at all, in an appeal to the Board of Zoning Appeals, as discussed below.
Further, estoppel does not apply to local governments in the exercise of their governmental functions. Gwinn v. Alward, 369 S.E.2d 410, 413 (Va. 1988). Virginia Code § 15.2-2311(C) creates a specific and very limited exception to that rule, but that exception does not apply here. The April 30, 2015, email sent by St. Clair Williams to the Applicant did not amount to a determination by an administrative officer. See Tr. at 37-38, 63-64, 66, 77. St. Clair did not intend to make a determination. He sent an email that he drafted independently and did not run by his supervisors. Indeed, the Zoning Administrator never reviewed or approved the email. As she testified, the email was not sufficient to constitute a determination. Therefore, Va. Code § 15.2-2311(C) does not apply here.
Moreover, the strictness with which claims of estoppel have been reviewed is evident in the cases decided under § 15.2-2311(C). These cases include:
• Norfolk 102 v. City of Norfolk, 738 S.E.2d 895 (Va. 2013) (finding that a cash receipt signed by a city official describing the property's use as an "Eating Place" was "not a specific determination" under § 15.2-2311(C)).
• James v. City of Falls Church, 694 S.E.2d 568, 575 (Va. 2010) (holding that a zoning interpretation letter was not binding on the local planning commission and lacked the finality necessary to constitute a "decision or determination" under § 15.2-2311(C)).
• Board of Supervisors v. Crucible, Inc., 677 S.E.2d 283, 288 (Va. 2009) (finding that a zoning verification letter was not a "determination" of the local zoning administrator).
• Goyonaga v. Bd. of Zoning Appeals, 657 S.E.2d 153, 160 (Va. 2008) (holding that the plaintiffs failed to meet their burden of proving that they could reasonably rely on a zoning administrator's approval of building plans).
To date, the Supreme Court has not issued a single decision finding a locality estopped under § 15.2-2311(C). Ultimately, the question of whether Mr. Williams' e-mail amounted to a "determination" giving rise to vested rights has to be resolved, if at all, in court.
10
IV. Judge Williamson erred in impermissibly relieving the Applicant of its legal obligation to exhaust administrative remedies.
On May 23, 2016, the Zoning Administrator sent the Applicant an e-mail containing her determination. She stated the following regarding the Applicant's proposed farm winery use:
In Fairfax County a farm would require a minimum of 5 acres based on the definition of agriculture as set forth below. The property you are applying for a Farm Winery license is only 1.8 acres and therefore does not meet the definition of agriculture. It is my position that you do not have the requisite acreage to establish a farm winery on your property.
See Record, Exhibit 3.
Under Zoning Ordinance § 18-301, the Applicant was required to appeal the decision to the BZA, if at all, within "thirty (30) days from the date of the decision appealed." Zoning Ordinance § 18-303. The Applicant did not respond to the Zoning Administrator and did not appeal her decision to the BZA. See Tr. at 31.
Flaving failed to appeal the Zoning Administrator's determination, the Applicant cannot now challenge it, and Judge Williamson erred in disregarding well-established law requiring the exhaustion of administrative remedies. It is well established that an unappealed decision of a zoning administrator becomes a "thing decided" no longer subject to attack. Alward, 369 S.E.2d at 412 (holding that a zoning administrator's decision regarding the unlawful use of property "was a thing decided and was not subject to attack" because the landowner "never appealed the various decisions in which he was declared in violation of the zoning ordinance"). The Supreme Court reiterated this doctrine in Dick Kelly Enters, v. City of Norfolk, 416 S.E.2d 680, when it held that the failure to appeal the zoning administrator's decision made a landowner's unlawful occupancy a "thing decided" and "not subject to attack." The Supreme Court observed that
the landowner had the opportunity, as a matter of right, to appeal to the BZA and then to the circuit court and, in the process, to raise every challenge it now makes to the City's interpretation of its ordinances. Instead, the landowner elected to ignore the required procedure and to make a direct judicial attack . . . [and as a result was] confronted with this insurmountable hurdle of an unlawful use as 'a thing decided' not open to attack.
Id. at 684. The Court has left no doubt that the failure to exhaust administrative remedies is fatal to any later attempt at a legal challenge, such as the Applicant attempts to mount here.
For all of the foregoing reasons, as well as based on additional arguments that it may raise during oral argument, the Board of Supervisors, by counsel, respectfully asks the ABC Board to overturn the initial decision in this case.
11
Thank you for your attention to this letter.
Very truly yours,
Senior Assistant County Attorney
cc: Elizabeth D. Teare, County Attorney Leslie B. Johnson, Zoning Administrator Brandon Murrill, Esq. Mr. Hal Moore
12
BATES ON YATES (BOY) Hearing Report Richmond, VA
8 June 2017
1
VABC Appeals Board: S. Christopher Curtis, Judith Napier, and Jeffrey Painter.
For the Applicant (Brian Bates Farmer): Brandon Murrill, Esq.
For the Objectors:
Objections 1 and 2: Hal Moore
Objection 3: Laura Gori, Fairfax County Legal Counsel
One of the objectors, Kathryn Weller, was also present, as well as the original hearing officer, Clara Williamson.
The objectors filed copies of their briefs with the Board of Appeals prior to the Appeals Board. The objectors and applicant were given 20 minutes each for spoken presentations and rebuttals. No new evidence was permitted.
Laura Gori spoke first, Hal Moore second, and Brandon Murrill third.
The county’s case and the assertions/rebuttal discussion on objection 3 was that the application was in violation of the Fairfax County Zoning Ordinance definition of “agriculture”, where the BOY property did not meet the minimum acreage requirement for definition as a “farm.” The Zoning Administrator, Leslie Johnson, gave this interpretation to Mr. Farmer in May 2016, when she first learned of the application from VABC. In accordance with Virginia law, Mr. Farmer should have then filed an appeal to the Zoning Administrator’s decision before the Virginia Circuit Court’s Board of Zoning Appeals. Instead, he ignored this precedent and decided to throw his lot in with the VABC.
Mr. Farmer indicated that he had received a favorable determination in May 2015 from Ms. Johnson’s subordinates. However, the contention of the county was that Mr. Farmer’s actions in 2015 were effectively a “drive-by shooting” where he sought an informal opinion, without submitting any formal applications or documents. The responses that he received were informal and largely dealt with the farm winery laws of the commonwealth, not with county land use. The Zoning Administrator knew nothing of the 2015 discussions or correspondence. Mr. Farmer asserted that he had formally “dropped off” documents with the County in 2015. However, he has no receipts to show that the county received them nor does the county has any log entries of their submission.
The Clifton objectors heavily based its appeal on the B Chord Brewery decision and subsequent appeal to the VABC Appeals Board as a justification for overturning the BOY decision written by Hearing Officer Clara Williamson. The B Chord decision was the license application overturned based on peace and quietude concerns. Clara Williamson also authored the Paradise Springs Winery (PSW) decision in 2009. There are separate briefing documents with the points made by the objectors.
During rebuttal to the Clifton objectors, Mr. Murrill asserted that almost all of the objectors live along Yates Ford Road between Kinchloe Road and Hemlock Park. They are impacted by (PSW), but live too far
BATES ON YATES (BOY) Hearing Report Richmond, VA
8 June 2017
2
away from BOY. Hal Moore rebutted that most of the over 100 objectors live in other areas of Clifton. Mr. Moore pointed out that one of the objectors, Jane King, lives away from PSW and provided a detailed presentation at the hearing of the road layout and the impact on area roads from VABC licenses.
Mr. Murrill argued that the opposition of Fairfax County was irrelevant. Mr. Moore rebutted that in the B Chord hearing, Ms. Hurlocker considered in rendering her judgement that such factors as the acquiescence of Loudon County, as well as other factors favorable to the objectors in the B Chord Case. Despite her willingness to consider these factors, Ms. Hurlocker still ruled in favor of the applicant. Ms. Hurlocker was subsequently overruled by the VABC Board. Mr. Moore continued that Ms. Williamson was less favorable to including these factors supporting the objectors’ positions in BOY. As a result, the VABC Appeals Board should overrule Ms. Williamson’s decision.
Commissioner Napier pointed out that as a professional mediator she wondered if there was not some sort of common ground where compromise could be reached. Mr. Murrill indicated that he could not immediately respond to her question without a more measured consultation with his client. Ms. Gori did not have the authority to compromise, as her points were to assert Fairfax County legal authorities that Ms. Williamson’s ruling would challenge.
Mr. Moore responded to Ms. Napier that the objectors responded with such a compromise to Mr. Farmer in May 2016. In exchange for limiting his license to remain a small boutique winery, the objectors would withdraw. However, Mr. Farmer refused to agree to any stipulations, limiting his use of the BOY site. During the hearing, he testified that he did not want to have any limitations that would restrict any future options for the BOY site. The attempt at this negation was admitted into the testimony file at the hearing, was reflected in the testimony transcript, and was in the objectors’ appeal brief.
The Appeal Board will entertain a period for further written submissions until 16 June 2017. A decision should be rendered within 30 days after that.
In a separate conversation between Laura Gori and Hal Moore, Ms. Gori mentioned that she also recently objected at a VABC hearing for Venture Capital Brewery (VCB). This license would be on a 6,000-square foot lot in the Bailiwick HOA between Vienna and Tysons Corner. Concerned Clifton Residents had reached out the HOA earlier this year to warn them what was transpiring.
In that case, the HOA president had apparently been in power for some time with a sympathetic board. The HOA President was accustomed to making decisions on his own that he was required to get approved from the board. He had earlier endorsed the VCB license. When we attempted to warn them, the HOA President cast aspersions on the motives of Clifton area residents.
When the Bailiwick HOA community members learned of the license application, there was an uproar. They held a special election and removed the HOA President and his sympathetic board members. Ms. Gori indicated that most of the hearing was devoted to the attempt by members of the community to have their objections recognized, with the applicant’s attorney arguing that they should be excluded as
BATES ON YATES (BOY) Hearing Report Richmond, VA
8 June 2017
3
the objection period had expired. Hearing Officer Clara Williamson was also the hearing officer for that application.
16 June 2017 12840 Dunvegan Drive Clifton, VA 20124
Jeffrey L. Painter, Chairman Judith G. Napier, Commissioner S. Christopher Curtis, Deputy Secretary Department of Alcoholic Beverage Control 2901 Hermitage Road P.O. Box 27491 Richmond, VA 23261 Subject: Reply to Applicants Objections Bates On Yates (Incident 201607280060) Reference: (a) Letter from Brandon Murrill dated 16 June 2017 (Reply to Objectors Assignment of
Errors). (b) Appeal Brief on Objections 1 and 2 filed with VABC on 7 June 2017 Dear Chairman Painter, Commissioner Napier, and Deputy Commissioner Curtis
1. In reference (a), Mr. Murrill continues to make an invalid point that objectors to Bates on Yates are limited to an area along Yates Ford Road very close to Paradise Springs Winery. Mr. Murrill bases his assertion on an analysis of the 24 formal “objectors” to the Bates on Yates application, who filed with VABC prior to the end of the objection deadline window.
a. When Mr. Moore was referring to the “objectors” being “100 plus”, he was referring to the petitions that were submitted and accepted into evidence by the hearing officer at the Bates on Yates hearing in October 2016. Most of these individuals live closer to Bates on Yates than Paradise Springs. Of the objectors who gave testimony at the hearing, Joe Scott, Dan Voss, Jane King, and Hal Moore live closer to Bates on Yates than Paradise Springs. Jane King gave the most extensive review of the traffic situation in the Occoquan Watershed that would be worsened by Bates on Yates.
b. As with other license applications, the applicant can start the window for objections by taking out advertisements in obscure publications and post minimally visible signs at the property. As with other applications, what created public notification was Senior Special Agent Katie Kelly notifying the Fairfax County Department of Planning and Zoning (DPZ). When DPZ received the notification they then notified local interest groups. These interest groups then went out with broadcast communications with only a few days remaining during the objection window. Most of those signing the petition were not
Concerned Clifton Residents (CCR)
aware of the initial application until we started collecting them during the summer of 2016.
2. Mr. Murrill makes the point that County objections are immaterial. In the B Chord Brewery I case referenced in reference (b), Hearing Officer Hurlocker ruled in favor of the applicant. The VABC Commissioners later overturned Hearing Officer Hurlocker’s ruling, Hearing Officer Hurlocker indicated that she would have sided with the objectors if Loudoun County had opposed that application. In making that point, Hearing Officer Hurlocker acknowledged that VABC weighs the opinion of county authorities, as they are best able to adjudicate the competing interests of applicants and objectors. In the B Chord I Brewery case, Loudoun County did not oppose the application. In the case of Bates on Yates, Fairfax County has joined the objectors in opposing the application. It stands to reason that the VABC should consider the position of Fairfax County.
3. During the hearing, Commissioner Napier, pointed out that as a mediator, she wondered is some sort of compromise could be worked out between the objectors and the applicant. This sort of compromise is precisely what the objectors tried to work out in May 2016, as referenced in reference (b). Kathryn Weller and Senior Special Agent Kelly proposed to the applicant language modification that would indeed limit him to his stated position that Bates on Yates would remain a small operation. His response was to refuse to have limitations on his VABC license. During the hearing, he was cross-examined on his refusal to compromise and his response was that he did not want to place any restrictions on Bates on Yates as he might latter want to expand the operation (testimony transcript, p. 150).
Respectfully,
Hal Moore Concerned Clifton Residents
Email: [email protected] Phone: 703-963-0096 Fax: (703) 454-0719
C o u n t y o f F a i r f a x , V i r g i n i a To protect and enrich the quality of life for the people, neighborhoods and diverse communities of Fairfax County
Office of the County Attorney Suite 549, 12000 Government Center Parkway
Fairfax, Virginia 22035-0064 Phone: (703) 324-2421; Fax: (703) 324-2665
www.fairfaxcounty.gov
June 16, 2017
VIA ELECTRONIC MAIL
Jeffrey L. Painter, Chairman Judith G. Napier, Commissioner S. Christopher Curtis, Deputy Secretary Virginia Alcoholic Beverage Control Board Central Office, P.O. Box 27491 Richmond, VA 23261-7491
RE: Reply to Bates on Yates's Submission Incident No. 201607280060
Dear Chairman Painter, Commissioner Napier, and Deputy Secretary Curtis:
The Board of Supervisors, by counsel (the County), submitted its letter last week to provide a record of its Assignments of Error and a framework for oral argument. It was not an opening gambit for reply from Bates on Yates (Applicant). After all, the Applicant had an equal opportunity to submit a pre-hearing brief and chose not to. Now that the Applicant has responded, the County submits this letter to rebut certain statements and arguments. Otherwise, for the sake of administrative economy, this letter incorporates the County's June 7 filing, instead of reiterating all of the arguments.
I. The Applicant's reply falls short of citing substantial evidence in the Record that supports certain factual findings.
Factual Finding 7: Regardless of whether Judge Williamson credited the Applicant's testimony that he delivered a package to the Department of Planning and Zoning, she did not find—and the Record would not support any finding—that: (1) the Department of Planning and Zoning (DPZ) actually received the package; or (2) Mr. Williams or the Zoning Administrator ever received or considered the package before communicating with the Applicant. Quite the opposite, both witnesses specifically testified that they never received the package. Tr. at 35-36, 71.
The Zoning Administrator testified that there is no record of DPZ's receipt of the Applicant's alleged package. Tr. at 36. She stated:
Tune 1 6
Any letter that comes in, even if it's sent directly to me, I will send for our mail log, and it gets logged in and assigned to a staff person for review
and comment. And we checked our mail log. I checked my e-mails. I have no record of this letter ever being received.
Id. The County therefore reiterates it objection to Exhibit 5. Tr. at 37 (objecting to secondary evidence based on 3 Va. Admin. Code § 5-10-90(A)(2)). The Applicant admitted that Exhibit 5 was not the original or even an accurate copy. Tr. at 106. It was unsigned and did not include any of the photographs referenced in the letter. Tr. at 106-107.
Factual Finding 8: The Applicant's Record cites provide no evidence as to when a wet bar was constructed or whether that was done in reliance on any communications with the County, and he admits that he planted his grapes before any contact with the County.
Factual Findings 11 & 12: The Board reiterates its objections to these "factual findings" to the extent they include legal conclusions about Mr. Williams' email and the Zoning Administrator's testimony regarding Zoning Ordinance §2-405. The County's objections to these legal conclusions are detailed below and in prior submissions.
II. The General Assembly authorized localities—not the ABC Board—to decide whether a farm winery is "otherwise permitted" in the Residential Conservation zoning district.
The General Assembly left no doubt that it disfavors farm wineries in the Residential Conservation District (R-C district) when it amended the definition of "farm winery" to exclude land zoned to the R-C district. See 2016 Va. Acts ch. 710. The third enactment clause created an exception for pending farm winery applications in the R-C district, but only when they were "permitted by the locality" for farm winery use. Id. This phrase plainly authorizes localities to decide whether the use is permitted. Miller & Rhoads Bldg., L.L.C. v. City of Richmond, 790 S.E.2d 484, 486 (Va. 2016) (reciting the paramount principle of statutory interpretation that the statute must be construed as written). If the General Assembly had wanted the ABC Board to decide whether the use is permitted, it would have said so. Halifax Corp. v. First Union Nat. Bank, 546 S.E.2d 696, 702 (Va. 2001) (articulating the well-settled rule that "[wjhen analyzing a statute, we must assume that the General Assembly chose, with care, the words it used in enacting the statute, and we are bound by those words when we apply the statute"); see also Cty. of Chesterfield v. Windy Hill, 559 S.E.2d 627, 630 (Va. 2002) (observing that "[fjhere is no language in the ABC Act which takes from local governments the powers conferred upon them by zoning statutes to regulate land use").
Moreover, Judge Williamson necessarily determined that the County did not permit this use. Otherwise, she would not have had to question the validity of the County's ordinance or consider issues of grandfathering and estoppel. The courts, and not the ABC Board, have authority to adjudicate alleged conflicts with state law and whether Zoning Ordinance § 2-405 or Virginia Code § 15.2-2311(C) applies. See Board of Supervisors June 7, 2017, submission at 2, 3, 5, 6, 9. By deciding, over the County's objection, that the use is permitted, she exceeded the ABC Board's authority under 2016
2
Va. Acts ch. 710 and intruded on the primacy of the courts. Her decision was ultra vires and void.
III. The Farm Winery Zoning Act applies only to licensed farm wineries.
The FWZA, on its face, applies only to licensed farm wineries. The only way to apply it to a pending application, is by isolating a single sentence in the statute, which violates fundamental rules of statutory construction. See Ford Motor Co. v. Gordon, 708 S.E.2d 543, 549 (Va. 2011) (declaring that a "statute should be read and considered as a whole, and the language of a statute should be examined in its entirety to determine the intent of the General Assembly"). Even if the FWZA did apply, it does not conflict, because the County's Zoning Ordinance was also enacted to protect health, safety, and welfare. Va. Code § 15.2-2283. Further, Judge Williamson's decision fails to give the Zoning Ordinance definition of "agriculture" the presumption of validity it is entitled. City of Norfolk v. Tiny House, 281 S.E.2d 836, 839 (Va. 1981) (recognizing that there is a "presumption favoring the validity of municipal ordinances, and the presumption governs unless it is overcome by unreasonableness apparent on the face of the ordinance or by extrinsic evidence which clearly establishes the unreasonableness"). Although the FWZA does not apply and does not conflict, that is an issue for the courts and not the ABC Board. Id.
Further, the Applicant has known—since the County submitted its objection to the application—that the County objected based on the 5-acre requirement for agriculture. Yet at no time before or during the hearing did he ever challenge that zoning requirement.
IV. The Applicant completely misreads Zoning Ordinance § 2-405.
Zoning Ordinance § 2-405 states that a lot may be
used for any use permitted in the zoning district in which located under this Ordinance even though the lot(s) does not meet the minimum district size, lot area, lot width and/or shape factor requirements of the district, provided all other regulations of this Ordinance can be satisfied.
(Emphasis added.) This provision lists a limited universe of size and shape factor requirements from which a buildable lot is exempt: minimum district size, lot area, lot width or shape factor. That's it—those are the only exemptions. All other requirements of the Zoning Ordinance must be met. Consequently, even though agriculture is a permitted use in the R-C District, the lot must still meet the 5-acre minimum requirement for agriculture. That is not a minimum district size, lot area, lot width or shape factor requirement; therefore, it applies and must be met.
V. The ABC Board exceeds its statutory authority whenever it makes land use determinations.
The ABC Board is a creature of statute, with general powers to "[cjontrol the possession, sale, transportation and delivery of alcoholic beverages." Va. Code § 4.1-103. The ABC Board has numerous other powers related to its authority over the sale and
3
distribution of alcohol, but those powers do not include any authority over land use and zoning. Id. It has no authority to make land use determinations—including questions of vested rights or equitable estoppel; these fall well outside the bounds of ABC authority. Judge Williamson even determined that § 15.2-2311(C) was an issue for the courts and not for her to decide. Williamson Dec. at 37. By nevertheless including findings about § 15.2-2311(C) in her decision, she exceeded her authority.
For all of these reasons, and as stated in the County's previous submissions and oral argument, the ABC Board is not authorized to issue the Applicant a farm winery license. Chapter 710 of the 2016 Virginia Acts of Assembly allows a farm winery use in the R-C district only if permitted by the locality, and the County does not permit a farm winery use on this 1.8-acre Property.
Thank you for your attention to this letter.
Very truly yours,
•Laura S. Gori Senior Assistant County Attorney
cc: Elizabeth D. Teare, County Attorney Leslie B. Johnson, Zoning Administrator Brandon Murrill, Esq. Mr. Elal Moore
4
June 16, 2017 Jeffrey L. Painter, Chairman Judith G. Napier, Commissioner S. Christopher Curtis, Deputy Secretary Virginia Alcoholic Beverage Control Board Central Office, P.O. Box 27491 Richmond, VA 23261-7491 RE: Reply to Objectors’ Assignments of Error to Initial Decision – Bates on Yates Incident No. 201607280060 Dear Chairman Painter, Commissioner Napier, and Deputy Secretary Curtis:
The Applicant, by counsel, respectfully replies to the objectors’ assignments of error in the above-referenced matter.
I. Substantial evidence in the Record supports the factual findings of the Hearing Officer.
Factual Finding 7: The Hearing Officer found that the Applicant’s managing member, Bates Farmer, “hand-delivered a letter with a packet of information, including photographs, to the Fairfax Department of Planning and Zoning addressed to Ms. Johnson.” Williamson Dec. at 9; Ex. 5. The Hearing Officer credited Mr. Farmer’s testimony that he delivered the letter to the zoning administrator and stated that “Mr. Farmer’s testimony has been credited in all respects over the testimony of the witnesses presented by the County, to the extent of any inconsistency. He had total recall of the events in this case and testified in an honest and forthright manner.” Williamson Dec. at 38.
It would not be surprising if the Fairfax Zoning Department had lost Mr. Farmer’s letter because the Record reflects poor administrative controls at the department. The Zoning Administrator testified that she first saw Mr. Williams’ e-mail to Mr. Farmer, which stated that “no approval” was required from the County to establish a farm winery on the property, one week prior to the Objection Hearing held on October 20, 2016. Tr. at 41. However, Mr. Williams, Senior Assistant to the Zoning Administrator, testified that he sent the e-mail to Mr. Farmer on April 30, 2015. Ex. 6, Tr. at 67-70. In addition, Ms. Stanfield, the Deputy Zoning Administrator for Appeals, testified that she met with Mr. Farmer along with Mr. Williams and discussed Mr. Farmer’s intent to establish a farm winery on his property in April 2015. Tr. at 73-74. Clearly, there was a lack of communication and poor record-keeping practices at the department during the events leading up to the County’s June 2016 objection to the Applicant’s May 2016 application and the subsequent October 2016 hearing. Ms. Stanfield apparently never followed up with Mr. Williams, and neither Ms. Stanfield nor Mr. Williams
apparently showed the e-mail to the Zoning Administrator. In this environment, it would be unsurprising that the County lost the letter.1
With regard to the request for photographs, Mr. Farmer testified that Ms. Stanfield asked him to provide photographs showing continuous agricultural usage. Tr. at 88. Ms. Stanfield testified that she asked Mr. Farmer to provide “materials” showing agricultural usage but later forwarded provisions of the state code that impose restrictions on local regulation of farm wineries to Mr. St. Clair Williams. Tr. at 75-76, Ex. 10. The testimony of Ms. Stanfield and Mr. Farmer on the request for photographs is not inconsistent, and, again, the Hearing Officer credited Mr. Farmer’s testimony above that of the County witnesses. Williams Dec. at 38. Regardless, the Hearing Officer did not base her decision regarding the Grandfathering Exception in Zoning Ordinance § 2-405 on Mr. Farmer demonstrating continuing usage of the property for agriculture because that section of the Ordinance imposes no such requirement.
Factual Finding 8: When the Hearing Officer asked Mr. Farmer, who is the managing member of Bates on Yates LLC, how he relied upon Mr. Williams’ April 30, 2015 e-mail determination, Mr. Farmer testified that four days after receiving that e-mail, he registered Bates on Yates with the State Corporation Commission and began his application with the Alcohol and Tobacco Tax and Trade Bureau. Tr. at 98-99. He also testified that he viewed establishing a farm winery as a “sequential” process in which he would “get the property, grow the grapes, get the grapes to the point where they’re producing, get the bonded . . . winery premise.” Tr. at 99. Earlier, he had testified that he obtained the April 2015 approval from the County after planting the grapes but prior to the point where the grapes were producing and he was using the property as a winery. Tr. 86-87, 89. This is also apparent from his April 30, 2015 letter to the Zoning Administrator, which stated that he had planted the grapes but that he had not yet undertaken processes to sell wine and wanted the County’s approval “before moving forward on any of those processes.” Ex. 5.
During the course of the hearing, Mr. Farmer testified that he planted the grapes back in 2012 but had to care for them continuously so that they were producing by the summer of 2016. Tr. at 86, 99, 228-31, 249. He testified that he had prepared his basement for winery operations as to tasting, storage, and crushing and had installed a wet bar area for tasting. Tr. at 101, 239. Because his mother passed away, he put the winery process on hold for several months but applied for a Farm Winery Class A license with the ABC in May 2016. Tr. at 99-100. Agent Kelly testified and the Hearing Officer also noted that he had submitted to ABC a list of equipment acquired for the purpose of making wine. Tr. at 249, Williamson Dec. at 51. All of these expenses, as well as time and effort, Mr. Farmer incurred in the Applicant’s pursuit of the winery project were significant. The Applicant is a startup business that has not yet sold a single bottle of wine.
Factual Finding 11: Mr. Williams’ e-mail to Mr. Farmer speaks for itself. Ex. 6. Mr. Williams testified that he understood Mr. Farmer to be asking whether he could use his property at 12211 Yates Ford Road for a farm winery. Tr. at 58, 69. The plain language of the e-mail supports the Hearing Officer’s factual finding.
Factual Finding 12: The finding is an accurate factual summary of the Zoning Administrator’s testimony. Tr. at 43-45.
Factual Finding 15: Again, Mr. Williams’ e-mail speaks for itself. Ex. 6. Mr. Williams testified that he understood Mr. Farmer to be asking whether he could use his property at 12211 Yates
1 Secondary evidence of the contents of a document may be received if the original is not readily available.
Ford Road for a farm winery. Tr. at 58, 69. The plain language of the e-mail supports the Hearing Officer’s factual finding.
Factual Finding 19: Again, the Hearing Officer credited Mr. Farmer’s testimony that he delivered the letter, and the Record reflects poor administrative controls at the Zoning Department during the time of the events in question. Tr. at 41, 67-70, 73-74.
II. The County failed to prove by a preponderance of the evidence that the Board lacks the authority to grant the license under the ABC Act and Chapter 710 of the Acts of Assembly.
The third enactment clause accompanying the General Assembly’s 2016 amendments to the definition of “farm winery” in the ABC Act allows the Board to issue a license to a new farm winery on a property zoned Residential-Conservation if the applicant applied before July 1, 2016 and, at the time of application, the farm winery use was “otherwise permitted by the locality.” 2016 Va. Acts of Assembly ch. 710. As the Hearing Officer stated in her opinion, “the Board has full authority to render a decision as to whether these prerequisites for issuance of a Farm Winery – Class A license have been met.” Williamson Dec. at 32. “To hold otherwise would automatically preclude the ABC Board from granting a Farm Winery – Class A License to anyone or entity having less than five (5) acres of property when granting such license might, in the Board’s discretion, be appropriate and in accordance with state policy.” Id.
At the time of application, the County deemed farm wineries to be an agricultural use under the zoning ordinance then in effect, and agricultural was a permitted use by right in the R-C district.2 While the County has asserted that the application cannot be granted because agricultural uses require a minimum of five acres in the R-C District, the Hearing Officer considered the evidence, testimony, and arguments presented and determined that the County had failed to demonstrate by a preponderance of the evidence that the use was not “otherwise permitted.” In so holding, she considered evidence, testimony, and arguments demonstrating that: (1) the asserted five-acre minimum for a farm winery is invalid as applied to the Applicant because it is inconsistent with state policy;3 (2) the Grandfathering Exception in Section 2-405 of the Zoning Ordinance permits the use regardless of the asserted five-acre minimum requirement; and (3) Mr. Farmer received a favorable written determination from an administrative officer of the County approving the use, and the County is estopped from reversing that determination pursuant to Code of Virginia § 15.2-2311(C). Williamson Dec. at 31-36.
The Hearing Officer did not invalidate the County’s definition of agriculture. She simply determined that the County had not shown by a preponderance of the evidence that the ABC Board
2 Chapter 710 of the Acts of Assembly grandfathered the Applicant’s farm winery use from future changes to the Zoning Ordinance, stating that a grandfathered applicant whose license application is approved “shall be allowed to engage in such use as provided in § 15.2-2307 of the Code of Virginia.” That code section protects vested rights of landowners from subsequent changes to a local zoning ordinance. 3 While not relied upon by the Hearing Officer in her decision, neither the ABC Act’s definition of “farm winery” nor other limitations on farm winery licenses contained in the Act establish a minimum lot size requirement for farm winery activities such as the manufacture or retail sale of wine. See Code of Virginia §§ 4.1-100 (defining “farm winery”); id. § 4.1-219. The County’s asserted five-acre minimum thus imposes a higher burden on the Applicant than state law. The local ordinances at issue in the Windy Hill and Tiny House cases regulated the “specific place or position” of the businesses rather than the size of the lot on which the businesses were located.
lacked the authority to grant the license application for purposes of the County’s objection under Code of Virginia § 4.1-222(5).
III. The Hearing Officer properly applied the Farm Winery Zoning Act when determining that the County had failed to demonstrate that its asserted five-acre minimum requirement for the Applicant’s operation of a farm winery was consistent with state policy.
The Farm Winery Zoning Act articulates the Commonwealth’s policy as to the proper balance between the exercise of local land use authority, the economic vitality of the Virginia wine industry, and the reasonable expectations of uses in specific zoning categories. By its own terms, it sweeps more broadly than licensed farm wineries, declaring that “it is the policy of the Commonwealth to preserve the economic vitality of the Virginia wine industry while maintaining appropriate land use authority to protect the health, safety, and welfare of the citizens of the Commonwealth, and to permit the reasonable expectation of uses in specific zoning categories.” Code of Virginia § 15.2-2288.3. The Supreme Court of Virginia has held that a zoning ordinance that conflicts with state policy is unenforceable. Blanton v. Amelia County, 261 Va. 55 (2001) (“It is, of course, fundamental that local ordinances must conform to and not be in conflict with the public policy of the State as embodied in its statutes.”). The FWZA establishes a unique status for farm wineries in Virginia law, and thus the Tiny House and Windy Hill cases cited by the County concerning the ABC Act provision in Section 4.1-128 of the Code of Virginia have no applicability because those businesses were not farm wineries.
As noted, the FWZA contains the policy of the Commonwealth to preserve the economic vitality of the Virginia wine industry while maintaining appropriate land use authority for localities. As the Hearing Officer stated, “in bringing this objection, the County had the burden of proving by a preponderance of the evidence that the Board was not authorized or empowered by the ABC Act to issue the license, which it failed to do. It was not demonstrated by the County that the five-acre minimum lot size was needed to achieve an objective related to health, public safety of welfare for an operation of this scope and scale.” Williamson Dec. at 37-38.
In addition, the FWZA states that it is the Commonwealth’s policy to permit the “reasonable expectation of uses in certain zoning categories.” The evidence and testimony showed that Mr. Farmer had a reasonable expectation of being able to use his property for a farm winery (an agricultural use) at the time of application for several reasons. As acknowledged by Zoning Administrator Johnson in her May 23, 2016 e-mail, the Fairfax County Zoning Ordinance did not define “farm” at the time of the Applicant’s application Ex. 3. Fairfax County deemed farm wineries to be agricultural uses, and the Paradise Springs Winery was operating as agricultural use in the R-C District. Mr. Farmer had received a Buildable Lot Determination issued by the Fairfax County Department of Public Works in 2005 stating that Grandfathering Exception applied to his property (Ex. 4), and Section 2-405 allows agricultural uses regardless of lot size requirements on grandfathered lots. Furthermore, Mr. Farmer had received a determination from an administrative officer of the County approving the use on April 30, 2015. Ex. 6. Therefore, the County’s assertion of a five-acre minimum for operation of a farm winery on Mr. Famer’s property also conflicts with state policy in the FWZA as a violation of the landowner’s reasonable expectations of a farm winery use in the R-C District at the time of application.
Code of Virginia § 15.2-2285(F) is inapplicable because the Applicant is not challenging the Board of Supervisors’ original adoption of the five-acre minimum requirement in the zoning
ordinance several decades ago. It is instead arguing that the County’s assertion of that requirement in this proceeding in an attempt to deny a farm winery license to the Applicant is inconsistent with state law and policy, and therefore that the County cannot prove by a preponderance of the evidence that the Board lacks authority to grant the license application.
IV. The County was not deprived of due process.
During the initial hearing, it became apparent that the County’s objection presented numerous complicated legal issues. Counsel for the County stated that, “I think written closing arguments would be helpful,” and the counsel for the Applicant agreed. Tr. at 83. The Hearing Officer held open the record to receive addition legal argument from counsel for the Applicant and County. Tr. at 83-84. Judge Williamson asked the County attorney and Applicant’s attorney to write closing arguments on whether the zoning requirement was consistent with state law, specifically, the ABC Act provision in Code of Virginia § 4.1-128. Tr. at 83. However, the evidence and testimony at the hearing also implicated other provisions of state law.4 Mr. Williams’ e-mail to Mr. Farmer cited provisions of the Farm Winery Zoning Act (see Ex. 6), and Mr. Williams testified that “the state—and I had quoted the statute regulations in the e-mail—says that, you know, the County cannot enforce any restrictions on the activities association with a farm winery.” Tr. 63-64. Thus, the Applicant included arguments concerning the FWZA in its closing arguments.
The County had the burden of demonstrating that the Board lacked the authority to grant the license application and had the opportunity to respond to the FWZA argument in its Second Closing Arguments.
V. The Hearing Officer properly determined that the County failed to demonstrate by a preponderance of the evidence that the Fairfax Zoning Ordinance Section 2-405 did not permit the use.
The evidence demonstrated—and the Zoning Administrator testified—that the Grandfathering Exception in Section 2-405 of the Zoning Ordinance applies to the property at issue and “allows that lot to be developed with a use that’s permitted in the zoning ordinance.” Tr. at 44, Ex. 4. Section 2-405 provides that a grandfathered lot “may be used for any use permitted in the zoning district . . . even though the lot does not meet minimum . . . lot area . . . requirements of the district, provided all other regulations of this Ordinance can be satisfied.” At the time of application, Fairfax County deemed farm wineries to be agricultural uses, and the R-C District permits agricultural uses as defined in Article 20. Zoning Ordinance § 3-C02
The relevant language in Section 2-405 establishes two mutually exclusive categories of zoning requirements: “minimum . . . lot area . . . requirements of the district” and “all other regulations of this Ordinance.” Zoning Ordinance § 2-405 (emphasis added). The five-acre minimum lot area requirement for agriculture is a lot area requirement of the Residential-Conservation District because it has been incorporated by reference into the regulations of the district. Zoning Ordinance § See 3-C02 (listing “Agriculture, as defined in Article 20” as a permitted use in the R-C District). “Incorporation by reference” is a common feature of legislative draftsmanship in which a legislative body incorporates one provision of a statute or ordinance into another provision by simply
4 Applicant’s counsel raised the issue of fairness during opening arguments, and testimony concerning the events surrounding Mr. Williams’ e-mail consumed most of the time devoted to the County’s objection. In her closing arguments, counsel for the County wrote that “the Applicant's arguments in the name of ‘fairness’ essentially amount to estoppel.” County’s First Written Closing Arguments at 7. The issue of equitable estoppel, including Code of Virginia § 15.2-2311(C), was fully briefed for the Hearing Officer.
mentioning it. See BLACK’S LAW DICTIONARY 834 (9th ed. 2009) (defining “incorporation by reference”). As a result, the provision that is referred to becomes a part of the provision that is incorporating it. The five-acre minimum lot area requirement for agricultural uses is thus part of the district regulations that apply to property zoned R-C and not an “other regulation” of the Ordinance. The County admitted so much in its first closing arguments, claiming that the use violated Zoning Ordinance § 2-302(5), which states that “[n]o use shall be allowed in any district which is not permitted by the regulations for the district.” County’s First Written Closing Arguments at 4.
VI. The Hearing Officer properly determined that the County failed to show by a
preponderance of the evidence that the farm winery use was not “otherwise permitted” by Mr. Williams’ April 2015 determination. She did not make a vested rights determination but instead held that the County could not demonstrate by a preponderance of the evidence that it was not estopped from asserting the purported five-acre minimum requirement for agriculture in this proceeding.
On April 30, 2015, Mr. Williams, the Senior Assistant to the Zoning Administrator sent Mr. Farmer an e-mail containing his determination, stating the following with respect to the proposed farm winery use:
Mr. Farmer,
After further discussion on your request about establishing a winery on your property, we have determined that the use as you described it would be deemed a “Farm Winery” as defined the Virginia State Code (see Sec. 4.1-100 of the state code below). Therefore, the usual activities and events customary for farm wineries are permitted without local regulation unless there is substantial impact on the health, safety or welfare of the public (see Sec. 15.2-2288.3 of the state code below). So, no approval is required from the County for your use as you described it, however any state requirements and/or regulations must be met.
I trust this correspondence adequately responds to your request. If you have any additional questions, please feel free to contact me.
See Ex. 6.
The Hearing Officer decided that, pursuant to Virginia Code § 15.2-2311(C), “the determination made by Mr. Williams on April 30, 2015, that Mr. Farmer’s stated use of the property would be deemed a ‘Farm Winery,’ as defined in Virginia Code Section 4.1-100, and no approval was required from the County for his use of the property for that purpose is binding upon the County.” Williamson Dec. at 35-36. The Hearing Officer did not make a vested rights determination in this case because she did not declare Mr. Farmer’s or the Applicant’s rights in the farm winery use.5 Instead, she determined that the County could not demonstrate that it was not estopped from asserting the purported five-acre minimum requirement for agriculture in this proceeding.6 While the County has cited cases that stand for the general principle that equitable estoppel cannot be invoked against a
5 In December 2016, the Hearing Officer asked for further briefing on issues related to Code of Virginia § 15.2-2311(C). The parties agreed that the issue of vested rights was not before the Hearing Officer. 6 Applicant’s counsel raised the issue of fairness during opening arguments, and testimony concerning the events surrounding Mr. Williams’ e-mail consumed most of the time devoted to the County’s objection. In her closing arguments, counsel for the County wrote that “the Applicant's arguments in the name of ‘fairness’ essentially amount to estoppel.” County’s First Written Closing Arguments at 7. The issue was fully briefed for the Hearing Officer.
local government, the General Assembly created a statutory exception to that principle in Virginia Code § 15.2-2311(C).
Equitable estoppel operates as a limitation on the County’s ability to assert the five-acre minimum for agriculture in this proceeding and is not a declaration of the landowner’s rights in the use. Although the doctrines of vested rights and equitable estoppel may appear similar and are often confused, they are two distinct doctrines. As commentators have noted, equitable estoppel in the zoning context restricts “certain exercises of government power” and “arises out of equity and is derived from fundamental concepts of justice and fairness,” whereas the doctrine of vested rights “protects property rights by providing the means by which inchoate land development rights” become rights protected by state constitutions. Grayson P. Hanes & J. Randall Minchew, On Vested Rights to Land Use and Development, 46 WASH. & LEE L. REV. 373, 383 (1989). Equitable estoppel is a limitation on the County’s ability to assert a zoning requirement in a proceeding, not a declaration of a landowner’s rights in a use. The plain language of Virginia Code § 15.2-2311(C) is broad enough to encompass both doctrines.
Mr. Williams is an administrative officer of the County and his e-mail is clearly a determination. Ex. 6. Mr. Williams testified that he understood Mr. Farmer to be asking whether he could use his property at 12211 Yates Ford Road for a farm winery. Tr. at 58, 69. The e-mail also has the hallmarks of a final determination, stating that “I trust this correspondence adequately responds to your request.” Ex. 6 (emphasis added). Mr. Farmer relied upon it as noted in the discussion of Factual Finding 8 above. Furthermore, the Supreme Court has recognized that, under Code of Virginia § 15.2-2311(C), even an improper waiver of a zoning ordinance requirement by an administrative officer of a local government may prevent the locality from later asserting that requirement in an attempt to prevent the landowner from performing a certain use on the property. Goyonaga v. Board of Zoning Appeals for the City of Falls Church, 275 Va. 232 (2008) (noting that a local government official’s “waiver, albeit an improper one” of a zoning requirement may implicate Code of Virginia § 15.2-2311(C)). Thus, even assuming that Mr. Williams’ determination was an improper waiver of a zoning ordinance requirement, Section 15.2-2311(C) would still apply.
The Supreme Court has issued only a few decisions interpreting Virginia Code § 15.2-2311(C), but in none of these cases was the approval as specific and final as Mr. Williams’ letter to Mr. Farmer. Bd. of Supervisors v. McQueen, 287 Va. 122, 130-31 (2014) (finding no specific approval); Bd. of Supervisors v. Crucible, Inc., 278 Va. 152, 161 (2009) (zoning verification letter stated that it was “subject to change” and “did not permit Crucible to use its property in a way that was otherwise not allowed under then-current zoning laws”); Norfolk 102 v. City of Norfolk, 738 S.E.2d 895 (Va. 2013) (no specific determination approving the use). Furthermore, Mr. Farmer had proposed a small-scale use, and thus could expect that approval would come in form and time frame that it did and could reasonably rely upon Mr. Williams determination to begin preparations for winery operations. Ex. 5, Tr. at 86, 98-99.
VII. The Applicant had no legal obligation to exhaust administrative remedies.
Because Mr. Farmer received a favorable determination from an administrative officer of the County approving the use, there was no need for him to lodge an appeal of that determination with the Board of Zoning Appeals. Again, Virginia Code § 15.2-2311(C) provides that the decision of an administrative officer becomes final 60 days after issuance (in this case, June 29, 2015) where the landowner has materially relied upon it as Mr. Farmer and the Applicant did in this case. As the
Hearing Officer stated, that determination could not later be reversed more than a year later by the Zoning Administrator. Williamson Dec. at 35-36.
Furthermore, the Board of Zoning Appeals lacks the authority to consider challenges to the validity of a zoning ordinance as being inconsistent with state law or policy, and thus the Applicant had no legal obligation to exhaust its administrative remedies prior to arguing that issue. Dail v. York County, 259 Va. 577, 582 (2000) (“Neither the zoning administrator nor the board of zoning appeals has the authority to determine the validity of a zoning ordinance.”). However, the ABC Board must consider such arguments as part of the objection process. To hold otherwise would give the County an effective veto power over a license application based on a local requirement that is inconsistent with state policy rather than requiring it to prove the merits of its objection by a preponderance of the evidence. Moreover, to the Applicant’s knowledge, ABC objection proceedings cannot be held in abeyance to await the outcome of a court decision challenging the validity of a local zoning requirement. The Board certainly has broad powers to resolve objections and rule on whether the prerequisites for issuance of a farm winery license are met. Code of Virginia § 4.1-103(18).7
VIII. The Hearing Officer properly determined that Objections 1 and 2 concerning “quietude and tranquility” and the “number of licenses existent in the locality” were not substantiated.
The Clifton resident objectors made a number of allegations against the Paradise Springs Winery during the course of the hearing, but the Hearing Officer determined that “it would be unfair to hold Mr. Farmer responsible for the alleged problems with Paradise Springs Winery and to assume and speculate that the operation of his winery would cause the same types of problems.” Williamson Dec. at 55. The same is true of Mr. Moore’s allegations concerning ABC’s monitoring of current licensees. The resident objectors did not demonstrate that Bates on Yates would have a substantial effect on quietude and tranquility or that any limitations on the license were necessary when other much larger-scale wineries do not have such limitations. Opposition by the County alone is not enough to deny a license to the Applicant because that would circumvent the objection process by not requiring the County to prove its objection.
Mr. Moore’s assertion during the appeals hearing that there were “130 objectors” is inaccurate. Only 24 people objected during the objection period. Exhibit 14 in the Record contains a map of their addresses, and none of them live on the Yates Ford Road where Bates on Yates is located. Most of them reside near the Paradise Springs Winery—a much larger scale operation than Bates on Yates would be. Furthermore, the Paradise Springs Winery is located at the end of a cul-de-sac. Tr. at 203. In contrast, Bates on Yates is located on a through road that is wide enough to be lined Tr. at 181, 217-18. This road, which has a 25-mph speed limit and speed bumps, is busy from commuter traffic. Id. However, there was no evidence that Bates on Yates would substantially increase traffic.
Mr. Farmer’s testimony about plans for the winery and the small scale of the proposed operation is recounted on pages 55-56 of the Hearing Officer’s opinion and in his letter to the Zoning Administrator in Exhibit 5.
7 The Hearing Officer addressed the Grandfathering Exception in Section 2-405 of the Zoning Ordinance because it was relevant to the question of whether the County could meet its burden to show that the Board lacked authority to grant the license application.
Respectfully submitted,
Brandon J. Murrill, Esq. Counsel for the Applicant
cc: Laura S. Gori, Senior Assistant County Attorney Mr. Hal Moore
