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Winery appeal loses most of its juice
(by Joan Demirjian - March 03, 2010)
Winery appeal loses most of its juice
By JOAN DEMIRJIAN
A case involving a winery in Auburn was the subject of a court decision last week as Geauga County Common Pleas Court Judge David Fuhry upheld a majority of the township's findings regarding the operation.
Jay and Elizabeth Schabel had appealed the Auburn zoning inspector's determination that a crush pad, pavilion and bridge are not agricultural and are not exempt from township zoning.
The Auburn board of zoning appeals' also had denied variances for the crush pad, pavilion and side-yard setback of the bridge.
The Schabel property is approximately 63 acres, where they operate a winery in a building attached by a wing to their residence. Grapes for the wine primarily are grown on the property.
Their land is at the cul-de-sac of Shadowood Drive in Auburn. Shadowood Drive is part of the Lucky Bell subdivision.
A metal building was attached for the crushing of the grapes and is known as the crush pad. A pavilion on the property is used for marketing and sale of wine and wine tasting.
A covered bridge over a stream provides access to the northwestern portion of the property.
The Schabels have maintained the winery is an agricultural use and exempt from Auburn's zoning code.
In a lawsuit filed against the township in Geauga County Common Pleas Court in 2009, the Schabels maintained Auburn is attempting to regulate the front-yard setback and height of the pavilion, the front and side-yard setback for the bridge and the rear yard for the crush pad.
The township board of zoning appeals had affirmed in May 2009 actions taken by the township zoning inspector, requiring the Schabels to comply with the setbacks and height restrictions on the buildings.
Agricultural exemptions were denied for the crush pad, pavilion and bridge.
In the lawsuit, the Schabels said the township and zoning inspector have attempted to prohibit and regulate their use of the property for wine making, selling wines and for timber management.
The bridge, pavilion and crush pad are used for the agricultural uses involved with the winery.
The Schabels have sought to show the buildings or structures used for wine making or timber production are agricultural uses and cannot be regulated by the township, and that no zoning certificate is required for buildings used for agriculture.
Residents are opposed to the intended use of the property because it will increase traffic, wine will be served and there is no through road, Mr. Fuhry said. Those going to the property off Bell Road will have to return through the subdivision to get to Bell Road.
Some drivers will have consumed wine before leaving, and those activities are a concern to residents, Mr. Fuhry said.
The grape crushing is not an exempted agricultural use, he said. The residence, winery and crush pad are one building, connected by a walkway.
Viewed as a single unit, the residence, winery and crush pad meet Auburn's definition of a dwelling, Mr. Fuhry said.
He supported the Auburn board of zoning appeals' conclusion that the primary use of the residence, which included the home, winery and the crush pad, was residential.
As to the pavilion, the court found that it qualifies as an agricultural use. While Auburn can monitor the pavilion and its future use, the township cannot prevent an agricultural use, according to the judge.
As to the bridge on the property, Mr. Fuhry supported the board of zoning appeals' finding that the bridge was not an agricultural use and not entitled to a variance.
As to the pavilion and crush pad, the court found that the Auburn board of zoning appeals did not act inappropriately in denying variances for them, he said.
And there was no showing by the owners that the crush pad could not have feasibly been located elsewhere other than where it intrudes too close to another's boundary, Mr. Fuhry said.
He affirmed the board of zoning appeals' decision that the crush pad was an addition to the residence and its denial of a variance request. The judge also affirmed the board's denial of a variance request with respect to the pavilion.
The Schabels now have time to appeal the court order. Their attorney, Dale Markowitz, said the ruling vindicates their right to use the pavilion for wine tasting.
There are a number of options for the crush pad, including moving it away from the house so it is separate, Mr. Markowitz said.
"There is nothing that prohibits more than one use on the property nor is there anything in the code that says that if it is a part of a structure that it has to be treated as residential," he said.
The property owners should be entitled to a variance for the bridge, and Mr. Markowitz said he is telling the Schabels not to do anything yet until the matter is discussed with township attorneys.
Township Trustees on Monday met with their attorneys to discuss the decision. They have determined they will appeal the issue involving the pavilion, according to Trustee John Eberly.
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