Does Fauquier County's zoning ordinance for farm wineries go beyond what Virginia law lets a county regulate?

Plain-English summary

A delegate asked whether Fauquier County's zoning ordinance for farm wineries went past what Virginia law lets a county regulate. The AG said yes, at least in part.

Virginia confers broad zoning power on localities generally, but the General Assembly carved out specific protections for farm wineries in § 15.2-2288.3 and § 4.1-128. Section 15.2-2288.3(A) requires that local restrictions on farm winery activities be "reasonable" and take into account the economic impact, the agricultural nature of the activities, and whether the activities are "usual and customary" for farm wineries statewide. Usual and customary activities are permitted without local regulation unless there's a substantial impact on health, safety, or welfare.

Section 15.2-2288.3(E) goes further. It expressly forbids localities from regulating six specific activities at farm wineries:

1. Production and harvesting of fruit and other agricultural products and the manufacturing of wine.
2. On-premises sale, tasting, or consumption of wine during regular business hours.
3. Direct sale and shipment of wine by common carrier to consumers.
4. Sale and shipment of wine to the ABC Board, licensed wholesalers, and out-of-state purchasers.
5. Storage, warehousing, and wholesaling of wine.
6. Sale of wine-related items incidental to the sale of wine.

Section 4.1-128(A) reinforces this by prohibiting localities from adopting ordinances regulating the manufacture, bottling, possession, sale, wholesale distribution, handling, transportation, drinking, use, advertising, or dispensing of alcoholic beverages in the Commonwealth.

Against that framework, the AG looked at the Fauquier County ordinance. Section 6-401(1)-(7) designated those exact protected activities as "by-right uses accessory to the production and harvesting of grapes" allowed only "upon approval of a Zoning Permit." But a zoning-permit requirement, with the obligations, burdens, fees, and discretionary denial that come with it, is itself a form of regulation that goes beyond what § 15.2-2288.3(D) and (E) allow. And subsections (1) through (5) of § 6-401 regulate activities that § 4.1-128(A) also bars localities from regulating. So those provisions exceeded local authority.

By contrast, the noise rule in § 6-402(1) was fine. Section 15.2-2288.3(A) lets localities regulate noise other than outdoor amplified music with rules no stricter than the general noise ordinance, and lets them regulate outdoor amplified music. Fauquier County's rule limited outdoor amplified music to noise not audible at or beyond the property line and required other noise to comply with the general noise ordinance limits, which fit within the express grant of authority.

The remaining restrictions in §§ 6-401(8), 6-401(9), 6-402, 6-403, 5-1810.1, and 5-1810.2 might be permissible if they comply with § 15.2-2288.3(A)'s reasonableness criteria, but determining that involves factual questions about economic impact, agricultural nature, and what's customary in Virginia. The AG declined to resolve fact-bound questions in an opinion.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Which Fauquier ordinance provisions did the AG identify as invalid?
Sections 6-401, subsections (1) through (7), of the Fauquier County Zoning Ordinance, to the extent the zoning-permit requirement applied to the activities that § 15.2-2288.3(E) protects. Subsections (1) through (5) also exceeded authority under § 4.1-128(A).

Which provisions did the AG say were valid?
The noise rule at § 6-402(1), because it complies with § 15.2-2288.3(A)'s noise allowance.

Which provisions were fact-dependent and not decided?
Sections 6-401(8) and (9), 6-402, 6-403, 5-1810.1, and 5-1810.2. Whether those are permissible turns on whether Fauquier County properly considered the statutory reasonableness factors.

What does the farm winery carve-out actually protect?
Section 15.2-2288.3 limits how far a locality can go: usual and customary activities at farm wineries are permitted without local regulation unless there is a substantial impact on public health, safety, or welfare, and the six core activities in subsection (E) cannot be regulated at all.

Can a locality still impose any zoning at all on a farm winery?
Yes. The carve-out is partial. Localities can regulate non-protected activities, can use the general zoning power for things like setbacks and structures (subject to the agricultural-character considerations), and can regulate outdoor amplified music. They cannot regulate the six core activities at all.

Background and statutory framework

Virginia follows the Dillon Rule, which limits county zoning power to expressly granted powers, those necessarily or fairly implied, and those that are essential and indispensable. Localities are conferred broad zoning powers generally, but the General Assembly has restricted that authority over farm wineries.

Section 15.2-2288.3 carves farm wineries out of local zoning in several ways:

• Subsection (A) requires reasonable local restrictions, considering economic impact, agricultural nature, and statewide customs.
• Subsection (A) also lets localities regulate outdoor amplified music and provides that other noise rules must not exceed the general noise ordinance.
• Subsection (D) bars differential treatment of private personal gatherings by winery owners.
• Subsection (E) bars local regulation of six specific farm winery activities.

Section 4.1-128(A) bars localities from adopting ordinances regulating alcoholic beverages, except as specifically authorized elsewhere in Title 4.1.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Code § 4.1-128 (prohibition on local alcoholic beverage ordinances)
• Va. Code § 4.1-207 (farm winery licensing)
• Va. Code § 15.2-2288.3 (farm winery local regulation carve-outs)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-063_Peace.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

July 19, 2013

The Honorable Christopher K. Peace
Member, House of Delegates
Post Office Box 819
Mechanicsville, Virginia 23111

Dear Delegate Peace:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented
You inquire regarding the validity of a Fauquier County Zoning Ordinance related to farm wineries. You specifically ask whether the ordinance's provisions exceed the locality's zoning authority, are preempted by state alcoholic beverage control law, or violate the Constitution of Virginia.

Response
It is my opinion that the Fauquier County Zoning Ordinance for farm wineries, at least in part, is an invalid exercise of local authority because it exceeds the locality's delegated zoning authority and is preempted by state law governing alcoholic beverages.

Applicable Law and Discussion
Virginia follows the Dillon Rule of strict statutory construction, which provides that "'municipal corporations have only those powers expressly granted, those necessarily or fairly implied therefrom, and those that are essential and indispensable'" and its corollary that "[t]he powers of county boards of supervisors are fixed by statute and are limited to those powers conferred expressly or by necessary implication." Therefore, to have the power to act in a certain area, local governments must have express enabling legislation or authority that is necessarily implied from enabling legislation.

Notwithstanding Virginia's reliance on the Dillon Rule, localities generally are conferred broad zoning powers. Nonetheless, the General Assembly has restricted localities' authority to regulate certain activities and events at farm wineries. Section 15.2-2288.3 specifies several areas in which a locality is either limited in or precluded from exercising its zoning power over farm wineries licensed by the Virginia Alcoholic Beverage Control Board. For instance, "[n]o local ordinance regulating noise, other than outdoor amplified music, arising from activities and events at farm wineries shall be more restrictive than that in the general noise ordinance." The pertinent County ordinance provides that

Sound generated by outdoor amplified music shall not be audible at or beyond the property line of the Farm Winery. Outdoor amplified music shall include music emanating from a structure, including open pavilions and temporary structures such as tents. In addition, no noise emanating from a Farm Winery shall exceed the noise limits set forth in Section 9-700 [of the county zoning code].

Because the local provision comports with § 15.2-2288.3, I conclude it is a valid exercise of the County's zoning authority.

More generally, § 15.2-2288.3 recognizes that there will be some local control over farm wineries: it states that

Local restriction 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.

It further provides that "[u]sual 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."

Also, § 15.2-2288.3 enumerates several specific areas in which local regulation of farm wineries is strictly prohibited. Subsection E expressly provides that

No locality shall regulate any of the following activities of a farm winery licensed in accordance with subdivision 5 of § 4.1-207:

1. The production and harvesting of fruit and other agricultural products and the manufacturing of wine;
2. The on-premises sale, tasting, or consumption of wine during regular business hours within the normal course of business of the licensed farm winery;
3. The direct sale and shipment of wine by common carrier to consumers in accordance with Title 4.1 and regulations of the Alcoholic Beverage Control Board;
4. The sale and shipment of wine to the Alcoholic Beverage Control Board, licensed wholesalers, and out-of-state purchasers in accordance with Title 4.1, regulations of the Alcoholic Beverage Control Board, and federal law;
5. The storage, warehousing, and wholesaling of wine in accordance with Title 4.1, regulations of the Alcoholic Beverage Control Board, and federal law; or
6. The sale of wine-related items that are incidental to the sale of wine.

Section 6-401, subsections (1) through (7), of the Fauquier County Zoning Ordinance designates as "by-right uses accessory to the production and harvesting of grapes," which shall be allowed at a farm winery "upon approval of a Zoning Permit pursuant to section 13-500," those activities that § 15.2-2288.3(D) and § 15.2-2288.3(E) prohibit localities from regulating. To the extent that the process of obtaining a Zoning Permit imposes obligations and burdens, including fees, upon the farm winery applicant and allows Fauquier County the ability to restrict through its review and potential denial of the zoning permit application those activities, the Fauquier County Zoning Ordinance exceeds the locality's zoning authority.

Additionally, § 4.1-128(A) of the Virginia Code prohibits localities from adopting ordinances that regulate alcoholic beverages or certain activities relating to alcoholic beverages at farm wineries. Section 6-401, subsections (1) through (5), of the Fauquier County Zoning Ordinance regulates those activities at farm wineries that § 4.1-128(A) prohibits localities from regulating. Therefore, Section 6-401, subsections (1) through (5), of the Fauquier County Zoning Ordinance exceeds the locality's authority under the provisions of § 4.1-128(A) as well as under the provisions of § 15.2-2288.3.

The remaining restrictions on the activities at farm wineries imposed by Section 6-401, subsections 8 and 9, Sections 6-402, 6-403, 5-1810.1 and 5-1810.2 of the Fauquier County Zoning Ordinance may be consistent with § 15.2-2288.3(A). Whether the restrictions are permitted are factual questions based on whether the locality properly considers 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. As this Office consistently has declined to answer questions resolving factual matters, rather than pure questions of statutory or Constitutional interpretation, this Office does not offer a view on the validity of these remaining sections of the Fauquier County Zoning Ordinance under the locality's zoning authority.

Conclusion
Accordingly, it is my opinion that the Fauquier County Zoning Ordinance for farm wineries, at least in part, is an invalid exercise of local authority because it exceeds the locality's delegated zoning authority and is preempted by state law governing alcoholic beverages.

With kindest regards, I am
Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General