LAND USE LAWS AFFECTING CALIFORNIA WINERIES Publication

Are you contemplating the purchase of vineyard property or looking to establish a winery? It is essential to know the basics of California land use law before proceeding with your planned acquisition. What follows is a brief primer.

Nearly all cities and counties in California have adopted general plans and zoning ordinances. Any land use proposed by a property owner must be consistent with both. Zoning ordinances allow some uses "as of right"-meaning no special permit is required-while prohibiting others, and allowing still others only by application for a permit. Most zoning ordinances in California require a property owner seeking to establish an on-site winery to obtain a special or conditional use permit.

If a permit is required, be aware that the permitting process is a public one, generally requiring one or more noticed public hearings. This means that your neighbors, both friendly and hostile, are permitted to have their say in the permitting process. The permitting agency must, nonetheless, adhere to certain legal requirements in processing a permit application. A qualified land use attorney can assist with this process.

Discretionary permitting decisions undertaken by a California city or county must be analyzed for potential environmental impacts under the California Environmental Quality Act. As a general proposition, the local agency may not approve a winery project if it will cause "significant" adverse environmental impacts that have not been mitigated in the project's design. For the prospective winery owner and operator, this means that the potential environmental impacts of the project (such as increased traffic, water runoff and potential impacts on wildlife, among others) should be considered in determining its feasibility.

If the current zoning for your property does not allow your proposed use, that is not necessarily the end of the story. It is possible for property to be rezoned, although the process is not an easy one. Occasionally, it may be possible to obtain a zoning variance. A qualified land use attorney can provide advice and counseling on the feasibility of a proposed use under the applicable general plan and zoning ordinances, and can assist with the process of obtaining any necessary variances or amendments.

A proposed winery use also may be impacted by the California Land Conservation Act, commonly known as the "Williamson Act." The Williamson Act provides tax incentives to landowners who enter into renewable, ten-year contracts to maintain their land for agricultural and compatible uses. If a Williamson Act contract is in place, it will be necessary to determine whether your proposed winery use is allowable under the contract. Although restricted agricultural land can be removed from the Williamson Act, the process can be both expensive and difficult.

A separate set of issues is involved in determining the feasibility of a residential subdivision on vineyard property. Early consultation with legal counsel is advisable.

Given the rapid growth of the wine industry in recent years, the law is this area will no doubt continue to develop. Having knowledge of the most recent developments will be critical to the success of your grape-growing or wine-making venture.

Lance A. Adair is Of Counsel with Kring & Chung, LLP's Irvine, CA office. He can be contacted at (949) 261-7700 or ladair@kringandchung.com.