tag: North Carolina Land Use Litigator: Oregon Court Upholds Vineyard's Conditional Use Permit Despite the "Wine" of Others

Tuesday, July 23, 2013, 12:06 PM

Oregon Court Upholds Vineyard's Conditional Use Permit Despite the "Wine" of Others

North Carolina produces in excess of 1 million gallons of wine per year, placing it in the top 10 of American States by that metric.  In fact, according to the North Carolina Department of Commerce, there are 100 wineries and 400 vineyard within the State.  

Why do these facts matter?  Because today's post is about how land use law can impact a winery.  

This post comes to the North Carolina Land Use Litigator by way of the always-interesting Professor Patricia Salkin, whom we follow on her own blog and on whose esteemed "blogroll" the Land Use Litigator appears.

Stoller Vineyards is winery located on an old turkey farm in Oregon.  The Winery is zoned for “exclusive farm use”.  Stoller applied for a conditional use permit for “commercial activities that are in conjunction with farm use.”  Yamhill County issued the conditional use permit, allowing Stoller to host up to 44 wine marketing events per year in a proposed new tasting room.  The permit contained various conditions designed to ensure that Stoller’s business remained focused on growing grapes and making wine and that it did not impact the surrounding community.

Petitioners -- the Oregon Department of Agriculture and the Friends of Yamhill County, a conservation group -- appealed the County’s issuance of the permit to the Land Use Board of Appeals. The petitioners argued that the proposed wine marketing events were not connected to farm use. The Board of Appeals rejected this argument and upheld the permit.  

On appeal to the Court of Appeals of Oregon, the petitioners argued that the Board's decision violated the limits of the Oregon law in two ways: (1) the approved commercial activity -- in particular, the events venue and commercial food service facility -- was a new use that should not be considered to be in “conjunction with farm use”; and (2) even if it is "in conjunction with farm use", the level of activity allowed on the Winery under the conditional use permit exceeds the incidental limitation imposed on such activity under the applicable law.

The Oregon Court of Appeals rejected petitioner’s arguments.  First, the Court concluded that “incidental activities” like an events venue and food facility are permitted as farm-use related commercial activities “to the extent that they are secondary to and support the wine processing activities of the winery.”  The Court agreed with the Board that the 44 approved annual events and food facility came to close to creating a scenario in which the "incidental and secondary" activities might overtake the primary activity (the processing and selling of wine), however the Court held that Stoller’s conditional use permit application nonetheless did not fall outside the scope of the State law.

Second, the Court concluded that the activities allowed by Stoller's conditional use permit would “reinforce the profitability of operations and the likelihood that agriculture use of the land would continue, thus promoting the goal of preserving farm land,” consistent with the applicable State law. 

The case is Friends of Yamhill County v. Stoller Vineyards, Inc. (Or. App. March 19, 2013), available here.

The Red Newt Cellars in Watkins Glen, New York.  Try the Gewürztraminer.

Mike Thelen practices in Womble, Carlyle's Real Estate Litigation and Land Use practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development matters in both state and federal venues throughout North Carolina.  Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw.

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