Planning Commission: Pours way for Brewpubs in Cape Charles

Cape Charles Mirror Report

by Wayne Creed

Just a short trip across the Bay into Norfolk and Virginia Beach, you will find brewpubs such as Gordon Biersch, Wharf Hill Brewing Company, and Home Republic Brewpub, not to mention a host of microbrewerys such as Smartmouth Brewing Company, O’Connor Brewing Company, Reaver Beach Brewing Company, Coelacanth Brewing ,Young Veterans Brewing Company, Back Bay Brewing Company and Pleasure House Brewing. I work in Norfolk, so I sometimes follow local development policy, especially for downtown and the Colley Avenue/Ghent area. Over the last few years, bringing brewpubs and fostering the local microbrew industry has been a top initiative for the city.

In Cape Charles, the idea that a brewpub may open in the vacant garage next to the laundromat has created equal levels of excitement, fear and consternation. Last Tuesday, the Cape Charles Planning Commission met to grapple with the blackness and unknown that surrounds the microbrew industry–the Commission  rolled up their sleeves and took on the work needed to make this happen right here on the lower end of the Eastern Shore.

From Staff Report-Brew pub – a restaurant-brewery that sells 25% or more of its beer on site. The beer is brewed primarily for sale in the restaurant and bar on site. No more than 40% of the gross floor area shall be used for materials and equipment used in the brewing process.

Brew pub is not among the enumerated uses, but does fall into the classification of “eating and drinking establishments” (Article III Section 3.6.B.16), “restaurants” (Article III Section 3.6.B.30), and “Any other commercial or professional use which is compatible in nature with the foregoing uses and which the Zoning Administrator determines to be compatible with the intent of the district.” (Article III Section 3.6.B.36)

Councilwoman Natali and Planner Larry DiRe did some research in Virginia Beach, trying to determine if the manufacturing of beer might create harmful side effects, such as noxious fumes, stinky smells, or rampaging bacteria. The only issues reported from the Beach were that the popularity of the brewpubs tended to create some parking issues (nothing reverse angle parking couldn’t fix), and that sometimes after consuming mass quantities of the delightful nectar, some patrons may have attached more favorable and attractive qualities to members of the opposite sex, which led to somewhat dubious and regrettable choices later.

“We don’t have a parking problem, at night, there shouldn’t be a conflict with the gym, and it is located great for the new parking at the railroad,” Commissioner Bucholz said.

Commissioner Salopek asked “Do they not fall under the restrictions of beer and food?”

“It is classified as a restaurant,” said Buchholz.

Commissioner Burke added, “So food has to be served as part of the ABC license, a percentage…”

“It’s around forty to fifty percent,” Natali said.

Given the nature of the industry, Burke questioned whether additional consideration should be given as to whether or not there should be any limitation on carry out goods.

Bucholz answered, “That depends on their license. They can be ABC on only but I’m pretty sure they will be on/off.”

There was some discussion and confusion about just who regulates an industry like brewpubs, whether it falls under the Department of Health like restaurants. The Health Department does regulate breweries with restaurants, however, the Department of Agriculture and Consumer Services regulates breweries that manufacture and serve beer but do not serve food. At issue, the Health Department is trying to regulate free-standing breweries as well, and trying to enforce the same restaurant-style regulations on brewery operations. New legislation to help clarify the law, as well as freeing up undue regulation may be introduced to the General Assembly next year by Sen. John Cosgrove, R-Chesapeake, Del. Bill DeSteph, R-Virginia Beach, and Del. Matthew James, D-Portsmouth.

“Is there any limitations to how many barrels they can brew?” asked Burke.

“It will probably be around 10 barrels a month,” said Bucholz.

From an agritourism, quality tourism perspective, the Virginia legislature has approved the small-scale existence of farm-breweries in the state. Senate Bill 430 amends the Code of Virginia (15.2-2288.3:1) to create a new Farm Brewery license for breweries that manufacture no more than 15,000 barrels of beer per calendar year and are located on a farm in Virginia. Similar to farm wineries in Virginia, the law limits local government regulation of farm-brewery licensees, specifically prohibits the imposition of onerous requirements by local governments on parking, road access, and road upgrades, and states that local governments should allow the “usual and customary activities and events” of farm-breweries. “It is the policy of the Commonwealth to preserve the economic vitality of the Virginia beer industry”.

Note: Virginia is considered very ‘brewer friendly’ relative to other parts of the country. There are however, different types of brewery licenses. Where other states like Maryland divide “brewpub” vs. “production” facilities, Virginia Code Section 4.1-208 separates breweries based on barrelage limits ( barrel equals 31 gallons or two 15.5 gallon kegs). Virginia separates by three different annual limits of 500 barrels or less, 501 to 10,000, and over 10,000 barrels per year.

Planner DiRe, relative to this particular case, voiced concerns about his role as Zoning Administrator, and how he would handle this form of request, “It concerns me that, and this is a good example, that this approval is in many ways at the discretion of a zoning administrator. It is an unchecked power”.

DiRe’s angst centered on the notion of making administration more tolerable, but that the decision, or the discretion to make the decision, works both ways as to “why is an application qualified, or not qualified.”

“Show me how this is not compatible with the zoning. The zoning administrator has that power,” Bucholz said.

Burke added, “But Larry, that is why we hired you, to make these judgments, these decisions. You are the professional.”

DiRe countered that, it does not relieve the issue of the ultimate decision still being an unchecked power, “The brewpub is by right, not a conditional use. It does not have to go through the Conditional Use Process. It is, well there is a level of discretion involved.”

“But in this case if we are treating it as a restaurant and it is by right in the district, I don’t see the issue,” Bucholz said.

Natali countered Bucholz, “But we are treating it as restaurant with a secondary use as a brewery. That makes it unique. Because of its nature we can make it go through the conditional use process.”

“That sound’s reasonable,” DiRe said.

“No, I wouldn’t. I would not make it a conditional use,” Bucholz said.

“But this is something we don’t know anything about. It’s new to us,” Burke said.

Bucholz added, “These things are popping up all over the country, in every town and city everywhere.”

“Well if we have something new like a brew pub, shouldn’t we bring that before the Planning Commission. Is that something that is acceptable to you Larry?” Natali asked.

“It’s a little more of a checks and balance than we have now,” DiRe said.

“I mean, but come on, we’ve seen brew pubs as far back as the eighties, like Rock Bottom in Bethesda. It’s been there forever, with businesses and condos, right in the small old section of Bethesda,” Bucholz said.

Burke disagreed, “They’ve been there since the eighties, but not here. I think it’s new enough that it would fall under conditional use. It’s different enough.”

“I’m worried about compatible,” said Dire. “Is it based on noise traffic, signage, what is it we are trying to accommodate?”

“I don’t get that,” said Bucholz. “The compatibility of the restaurant is the zoning and neighborhood.”

DiRe disagreed, “Compatible could be the eye of the beholder. There is no check on it.”

Trying to find middle ground, Natali added, “One check is to have it reviewed by the Planning Commission; the other is to have it approved by the Town Manager.”

Chairman McCoy interjected, “I just don’t want to make this harder for businesses. ”

Natali agreed, “Right, we don’t want to put up stumbling blocks, we want businesses to come here, but we want to do due diligence.”

Relative to the role of the Town Manager in all this, Brent Manuel had issues with two administrative ‘paid’ employees having the power to make the decision on what he considered a legislative issue. Also, he stated that the aggrieved applicants had to have somewhere to go for recourse.

Bucholz noted, “In this case, they are a brewpub, selling probably on and off premises. They manufacture the beer on site, and this is no different than a restaurant baking cakes and selling them, that does not make them a bakery. As for the zoning, we’ve already got it spelled out in the zoning, what we allow in a C-1.”

“Except the term brewpub is not there, “ Natali said.

“But it’s classified as a restaurant. It is the classification that we are looking at, not the term brewpub,” Bucholz said.

“It is still the legislative issue. For me, there is a problem there,” Dire said.

“Take it one by one,” said Bucholz. “And see if you have it within what is compatible with C-1.”

“The challenge is that we have enough flexibility in the process and he feels secure with the checks and balance,” McCoy said.

“Should this go back to the Planning Commission?” asked Natali.

“Or Town Council, that is the logical place,” McCoy said.

Bucholz concurred, “They are the legislative branch.”

Natali questioned, “But the normal flow is they don’t get involved unless there is a change from the Planning Commission. Why can’t the Planning Commission make a determination and just concur with the zoning administrator? We’re not changing the code just making a ruling.”

“Well, then how did the Shanty open up a fish market?” asked Commissioner Salopek.

“Exactly.” Bucholz said.

“It didn’t come through us,” said McCoy.

“It should have come through us since we’re the ones who set it up. It is a fish market, ” Bucholz said.

The consensus was to move forward, with the amended language to state that if the Planner comes across an issue like this in the future he has the ability to call a special Planning Commission meeting if time is of the essence to “get the ball rolling and try to be as timely as possible”.