February 24, 2012 | Leave a Comment
Shortly before Prohibition began, the U.S. Supreme Court, in Village of Euclid v. Ambler Realty, validated a zoning ordinance based on the court’s finding that maintaining the character of the community was a valid government interest. When vineyards and wineries came back online after Repeal, they faced new legal considerations concerning their operations in recently adopted city and county general plans and zoning codes.
Cities and Counties in California adopted general plans and zoning ordinances pursuant to Government Code section 65000 et seq. In these plans and ordinances, cities and counties designated areas where only agricultural uses were permitted, what activities were “agricultural uses” permitted by right, and what activities fell outside that category and were either prohibited or required a permit. Before the local government implemented land use planning measures a grape grower could build a winery and process his grapes on-site, open a shop in the winery to sell his wine, and host public and private events at the estate winery, all likely without needing to seek any approvals or permits from local government. By contrast, as an example of what most cities and counties require today, in Monterey County a vineyard owner or prospective buyer who wanted to build a winery on site would need to apply for and obtain a special use permit prior to construction of a winery on land zoned for agricultural/industrial use (See Monterey County Zoning Code 21.06.020 & 21.24.060(F)). Almost every zoning code in California contains a similar requirement.
California law also requires that any discretionary government action be taken within full public view (See California Govt. Code §§ 54950-54962). This includes decisions of a local planning commission and/or board of supervisors to approve or deny a special use permit (or to change zoning or grant a variance which, in some counties, may also help a vineyard owner establish an on-site winery). The local agency responsible for the decision must provide public notice, publish the agenda of the meeting where the permit will be considered, allow members of the public to attend the meeting and comment, and deliberate in open session. What this means for applicants is that any neighbor, competitor, or teetotaler is given the opportunity to attempt to persuade the agency to deny the permit. There are, however, legal requirements the agency must follow in making its decision, and an attorney can assist any applicant facing opposition in understanding the validity of the opponents’ views and the basis for an agency’s final decision.
What’s more, any discretionary action taken by local agencies must be analyzed in terms of its direct, indirect, and cumulative environmental impacts pursuant to the California Environmental Quality Act (CEQA, Cal. Pub. Res. Code § 21000 et. seq.). The local agency cannot approve a project if there are any significant adverse impacts on the environment that will not be mitigated according to the project’s plans (there is some room for approval even if there will be significant environmental impacts, but discussion of CEQA and winery operations could be an entire post in itself, so for now, know that significant environmental impacts will be a problem for an applicant). Thus the applicant should consider any potential environmental effects, including increased runoff, impact on endangered or threatened species, and how to deal with waste water, among other considerations, in planning construction of a winery.
Finally, one additional California law that can impact estate winery operations is the California Land Conservation Act, more popularly known as the Williamson Act. Passed in 1965, the purpose of the Williamson Act was to provide an incentive for the preservation of prime agricultural land in California, which was being threatened by rapid suburban sprawl. The Act allows counties to enter into ten-year renewable contracts with land owners to retain the land for agricultural or compatible uses for the contract term. In exchange, the land owners receive a tax break on their property taxes because the value of the land can only be assessed based on its use for agriculture, and not for potential uses that would increase the value of the land such as subdivision for residential development. At least one estate winery in California has faced allegations that its activities violate the Williamson Act’s restrictions; in the Lodi area, the San Joaquin Farm Bureau Federation challenged the decision to allow an estate winery to cater weddings and other special events on their property, claiming this is a non-agricultural use prohibited by the Williamson Act. The Farm Bureau raised their concerns by testifying in opposition to the use at public hearings held by the county planning commission and board of supervisors, and filing a complaint with the California Department of Conservation, which oversees Williamson Act contracts. More information on the Williamson Act and the effects it may have on use of vineyard land can be found on the Department of Conservation’s website.
If you own a vineyard, or are thinking of purchasing one, and would like to establish a winery on-site, consider contacting a wine law attorney to determine how these considerations could affect you.