Effingham Winery Summary

The case concerns the application of “Effingham Manor”, which is located in the Alexander Lakes neighborhood off of Aiden Road in Prince William County, in Nokesville. The subdivision is about 480 acres with 49 lots and a common area. Most of the lots are 10 acre lots, but a few are over a ten and a few under 5 and 3 acres. The homes and lots are valued in the range of $900,000 to $1.1 million. The centerpiece of the case is an 18th century residential dwelling, known as Effingham Manor. The manor has 12.8 acres (lot 27), and is adjoined with an addition 3.7-acre lot (lot 23a). The area is zoned A-1. Prince William County does not use the R-C category that Fairfax County uses. The subdivision was developed by “French” Smerbeck in 2007, with a financing company, G and G, taking over in the 2010-2011; Mr. Smerbeck’s organization, Kustom Kastles, was not financially viable. Mr. Smerbeck affirmed in an affidavit, and other witnesses testified, that it was the understanding of Alexander Lakes residents that Effingham Manor would be used as a community center for Alexander Lakes. The HOA, known as Effingham Farms HOA, is still controlled by G and G, even though the HOA was supposed to have been turned over to the home owners by the “builder” once all the lots were sold or after seven years, whichever came first. The “President” of the HOA , Mike Dyer, is an employee of G and G, as is one of only two “unelected” board members. Neither of the HOA board members reside in the neighborhood. HOA dues are collected for maintenance of common areas, including roads. There is are multiple pieces of land that is HOA common area in the subdivision. The private roads that run through the area run on easements through privately owned lots. Home owners are responsible for the private road’s maintenance. In 2007, the Prince William County Comprehensive Plan mentioned that Effingham Manor was “culturally significant.” In 2006, Prince William County approved a Special Use Permit (SUP) for Effingham Manor to host weddings and other events. This SUP expired in 2011 and Prince William Account issued a termination of SUP status to the HOA. None of the purchasers of lots or homes within Alexander Lakes were told about any possibility of Effingham Manor becoming a “farm winery.” They only became aware of the possibility in January 2016 when Lot 27 and 23 were sold to Chris Pearmund for this purpose. There was some conflicting testimony as to whether Effingham Manor lot was actually in the Alexander Lakes subdivision. There is also a conflict as to whether an act by the General Assembly acted as a blanket extension of SUPs. This act was passed prior to the issuance of the termination letter by Prince William County. The objectors are apparently arguing in Circuit Court, that G and G should have appealed the termination letter to the Board of Zoning Appeals if they did not agree to it in 2011. This failure to follow the normal appeal of zoning opinions is also an element to the Bates on Yates case. For many years, Effingham Manor went unsold, although for limited periods, it was rented out. In December 2015, G and G/Effingham Farms HOA sold the manor house to Chris Pearmund, who owns Pearmund Cellars Winery in Fauquier County, as well as Vint Hill Craft Winery. Mr. Pearmund bottled wine for Paradise Springs Winery (PSW) at Pearmund Cellars using a PSW label for several years. His name has also been associated with La Grange Winery in Haymarket

Effingham Winery Summary

and the Winery at Bull Run in Centreville, although he no longer has a relationship with PSW, La Grange, or Bull Run. None of the home owners knew of the sale by G and G to Mr. Pearmund. Shortly after arriving in the neighborhood, Mr. Pearmund began holding “meet and greets” which included a few Alexander Lakes home owners, as well as “investor meetings” with those interested in investing in his winery enterprises. At these meetings, free wine was offered. He began construction of a “barn” / winery event center, in addition to restoring the grounds around the manor house. Under the guise of his farm winery license at Pearmund Cellars, Mr. Pearmund applied for and was granted a “remote license” from VABC. Each farm winery may have up to five of these remote licenses, where they may have remote sales of their wine. It is unclear if these remote licenses also permit the “by right uses” of a farm winery, such as events. He was cited by VABC for transferring several cases of wine for one of his “meetings”, as he listed it as “free” and did not pay customary taxes that would normally be collected by VABC. The homeowner who lived across the street from the manor house agreed to invest in the winery. She believes that wineries attract “wealthy and high-class people” who can generate interest in the neighborhood. A number of the remaining lots in Alexander Lakes have yet to be built on. However, it took 15 years before all but one of the lots in Glencairn subdivision in Clifton had been built on. This homeowner was the only one who testified in favor of Mr. Pearmund. When she first purchased a home in the subdivision, she was not aware that it might be a winery. She “had the understanding” that Effingham Manor would become an HOA “community center.” At the “meet and greets”, when several of the home owners heard Mr. Pearmund’s intention to turn the manor house into an event center and winery, they became concerned. He spoke of expanding the property by purchasing remaining lots to create a 200 acre winery. At that juncture, Mr. Pearmund also turned increasingly hostile toward the homeowners. The covenants strictly state that the neighborhood is residential only. The HOA does not permit agriculture. Home owners may set up businesses in their homes, but they may not bring in employees or have clients/customers come into the neighborhood. Mr. Pearmund initially tried to push through a Prince William County SUP for the property as an event center. However, the process started to become onerous. Prince William County Supervisor, Jeanine Lawson (Brentsville District), testified against the winery at the hearing. Supervisor Lawson indicated that Mr. Pearmund has been difficult to work with and been rude to her staff. She represents the district that includes Alexander Lakes and is the Vice Chair of the Prince William County Board of Supervisors. She was limited in what she could say due to “advice of Prince William County counsel” pertaining to the upcoming circuit court case. As a result of County resistance, Mr. Pearmund withdrew the SUP application and went forward last fall with a farm winery application. Mr. Pearmund was able to obtain a Temporary Activity Permit (TAP), but only for the “event barn” and not the manor house. The TAP/SUP aspects of

Effingham Winery Summary

the case are being litigated by the Circuit Court and were not considered pertinent to the VABC case. Special Agent Kelly has also not seen the production equipment and so she cannot make a full endorsement for the hearing officer. She has also not seen the SUP or TAP. The “barn” constructed to host events is located near the manor house. The building can apparently hold around 200 people standing. There are no visual buffers between neighboring lots and the “event barn.” According to the builder, the event barn is constructed to high quality standard. For example, it contains a type of spray foam that is more expensive than traditional insulation, but which has noise mitigation properties. Like all “farm” structures in Virginia, it is not required to adhere to the State Uniform Building Code (SUBC) and therefore has not been thru plan review, permits or inspections for the sake of safety yet is expected to host thousands of people annually will have no idea that the building has not been held to the same building code standards as all other buildings. During his first year of ownership and the existence of his one year “remote license” under the farm winery legislation, he hosted numerous events hosting small groups of people. However, Mr. Pearmund indicates that he never exercised the authority under the license to sell wine at Effingham Manor. There were concerns that in 2016, Mr. Pearmund promoted an event that that could have hosted over 250 people if it had not been moved at the last minute to Pearmund Cellars, apparently to avoid conflict with PWC when his TAP only permitted a much smaller number (30 people for 30 minutes). Mr. Pearmund allowed his remote license to lapse after its one year term in February 2017. During many of these events, Mr. Pearmund and other “investors” purchased the wine at Pearmund Cellars and brought it over to Effingham Manor. There was a VABC violation citation associated with some of the transfers of wine from Pearmund Cellars. VABC wants to ensure that they get every penny of tax revenue possible from every bottle of wine, and they do not want it transferred around and issued for free, resulting in a non-taxable event. Many of the homeowners complained about the traffic and noise from the visitors. Several of them indicated that they had to modify the behaviors of their families and their children in walking and riding bikes in the neighborhood. This subdivision has no sidewalks, no street lights, and no road striping. The only road that accesses the majority of homes and proposed winery is in disrepair and falls to the residents to maintain as the proposed winery is inside a private subdivision with no state maintained roads. Several home owners reported that Mr. Pearmund approached their persons and property, making threatening statements and gestures. He reportedly told one resident, “Who is going to stop me? Prince William County?” and laughed. Another resident made a police report when Mr. Pearmund blocked her driveway. The police have contacted Mr. Pearmund after several complaints. However, no charges have been filed. Out of frustration, the residents of Alexander Lakes filed a lawsuit in Circuit Court against Effingham Winery, and Effingham Farms HOA for multiple issues, including failing to give the home owners control of the board, as well as granting Mr. Pearmund the permit to use private

Effingham Winery Summary

roads for the winery and for the winery to exist without consent of the effected homeowners as required by their HOA covenants. The circuit court litigation evidently includes whether Lot 27 (the manor house) actually falls within the subdivision, as well as the length and time for the 2007 SUP. The trial date in Circuit Court is May 9-10, 2017. The HOA board for an unclear period of time did not renew their status with the State Corporation Commission (all HOAs must be incorporated under the Virginia Property Owners Association Act) and provide an annual filing and fee with the Common Interest Community Board (CICB), which effectively acts as the “regulatory body” for all HOAs in the Commonwealth. Any orders or decisions made by the HOA board when this status lapsed could be rendered moot by the Circuit Court. The HOA director has not conducted any annual meeting since at least 2012. Mr. Pearmund, after withdrawing the SUP, filed for a farm winery license. His intent was to primarily use Effingham Manor as an event center, with token vineyards and a production facility. Objections were immediately filed from most of the home owners and Prince William County officials. The hearing was head on 9-10 March 2017. The attorney for the objectors was Sharon Pandak, who was the attorney for the objectors to the Whitehall Farms paint ball facility in Clifton. The attorney for Mr. Pearmund was Phillip Strother. Mr. Strother is the consigliere for the Virginia Wine industry and he is often found at any dispute involving farm wineries, breweries, and distilleries. He was the attorney representing Marcus Silva at Loud Mouth Brewery, until Mr. Silva withdrew the application. He represented Paradise Springs Winery (PSW) from 2008 until 2015. He was the originator of many “cease and desist letters” sent to Clifton and Fairfax Station residents. He wrote an excellent summary of the farm winery law in the University of Richmond Law Review in 2013. The hearing officer was Clara Williamson from the VABC. She was the same hearing officer who granted the Bates on Yates License on 2 March 2017 and the PSW license in January 2009 A concern from the homeowners was that sizable events will dramatically increase the noise in the neighborhood. None of the Alexander Lakes home owners reported an existing noise problem. One reported measuring the decibel level at 28-30, which is fairly quiet on days when there is no activity at Effingham Manor. Several reported that even the “meetings” now being held by Mr. Pearmund are clearly audible. Several of those speaking in favor of the winery, which, other than the investor home owner and the “President” of the HOA, were contractors working for Mr. Pearmund. They reported that the homeowners concerned about noise from the winery have no cause to complain, given the noise emanating from the nearby Quantico Marine Corps base. One of them reported that large “artillery howitzers” are fired multiple times per day at Quantico that cause all of the buildings in the neighborhood to “shake and rattle.” The same individual reported swarms of V-22 Ospreys flying over the neighborhood. There is an artillery instruction battery at Quantico. However, the other home owners report that the sound is infrequent and distant, with

Effingham Winery Summary

infrequent rattling of their homes. There is also a V-22 squadron based there. Again, residents report sightings as being infrequent. Concerns about the impact of traffic on peace and quietude were raised. An analysis of county documents showed that the private roads had a “design” capacity of 400 vehicles per day. However, the roads were not built to design. For example, they only had one inch of asphalt instead of the two inches in the design documents. Photos were shown of road wear and tear. Projections from Mr. Pearmund’s SUP (which he withdrew) showed that the community could expect to see over 600 vehicles per day. Residents are also concerned about criminal behavior from “visitors” to the manor, who wander through the neighborhood. Several instances of trespass have occurred during the period of the remote license. Suspicious behavior by several of these vehicles were described. Many residents no longer feel safe walking or riding bikes. Many have restricted their children from riding bikes in the neighborhood out of fear of the traffic. Several homeowners have had to put up “No Trespassing” signs to keep visitors out of their properties. Mr. Pearmund has told several of the residents that he will not host outdoor events. However, the web sites at his associated wineries show multiple outdoor events. He has also constructed an outdoor patio area behind the manor house. Photos were shown of how the construction of vineyards and a geothermal system crossed over onto HOA property by 200’ of the Effingham Manor lot and on to a neighboring private lot as well as the common area lot. One resident, whose property borders the Effingham Manor lot, but whose property is not formally in Alexander Lakes, reported that Mr. Pearmund removed a fence without obtaining permission. Mr. Pearmund asserts that the woman’s husband gave him permission on the understanding that Mr. Pearmund would replace the fence with something more appealing. He indicated that he gave the neighbor several proposed horse board fences to choose from in replacing the fence. However, when the neighbor “turned hostile” he refused to act on the offer to replace the barbed wire fence that he took down. The neighbor also reported that a construction vehicle from the construction company had entered her property, causing damage to a protected wetland area. As a retort, the construction company owner, who reported the swarms of V-22 Ospreys and massive artillery barrages, reported that the noise levels were extreme from this property. Mr. Pearmund asserted that the construction vehicle that trespassed and caused damage was caused by a “marine corps veteran with PTSD” who took the vehicle without permission. The owner of this property indicated that she owns a farm, where she raises crops and owns horses. She indicated that in 2016, she has often found trespassers on her property emanating from events hosted at the manor. She is concerned that intrusions from machinery and people coming from Effingham Manor events could spook her horses while she is riding them. One of the home owners did a search on a background check web site that showed over 20 driving citations, including several excessive speeding and reckless driving violations. One

Effingham Winery Summary

citation included an assault and battery charge from the early 2000’s. However, the objectors to the farm winery application were unable to generate the actual police reports and the hearing officer declared it inadmissible. The hearing officer, Clara Williamson, indicated that she cannot rule on the tendency of Mr. Pearmund to disobey laws. She can only rule on police reports. The objectors’ counsel brought up in her cross-examination of Mr. Pearmund that he had filed an alcohol and beverage application where he checked “Yes” when the form asked “Have you ever been convicted of a felony or misdemeanor?” Mr. Pearmund admitted that he had been convicted of assault and battery in the early 2000s. This incident occurred when an individual trespassed on his property. Mr. Pearmund said that he struck the man, knocking him to the ground. Mr. Pearmund was fined for the incident, but not incarcerated. The trespasser was ordered by the judge not to trespass further. Members from the Occoquan Watershed had been asked to testify, but the hearing officer refused to consider evidence about any conduct by one winery or winery application to be used for consideration in the application of any other winery. Nevertheless, Clara Williamson did permit evidence from other wineries that purported what a “great guy” Mr. Pearmund is. A neighbor of Pearmund Cellars in Fauquier testified to that effect. However, she also testified that she knows nothing about horses or any of the specific issues present at Alexander Lakes. This neighbor confirmed that Pearmund Cellars is served by public roads, not private roads. Mr. Pearmund later asserted that it is on “private roads.” However, while the long private driveway into Pearmund cellars is a “private road”, as would be the case with any private driveway, the property is accessed from Georgetown Road, VA 674. This neighbor of Pearmund Cellars testifying to Mr. Pearmund’s good character, who purchased her home in 2013, indicated that her property assessment went up over 20% with Pearmund Cellars having been present for a long period prior to the time of her home purchase. However, Pearmund Cellars is located in Fauquier County, as is this neighbors home. While Fairfax County adjusts its property tax assessments every year based on real estate “comps”, Fauquier County adjusts its appraisals once every four years. Ms. Williamson also permitted the testimony of a former Prince William County Supervisor, John Stirrup, who served on the Prince William County Board of Supervisors from 2003 to 2011. He represented the Gainsville district, which does not include Alexander Lakes. He testified on what he “believed he knew” about the land use agreements affecting Alexander Lakes. He also spoke in favor of the good character of Chris Pearmund, primarily in his capacity as a partner in the development of the Winery at La Grange, in Haymarket. La Grange was a derelict property that was surrounded by the Thunder Oak subdivision. It was a similar situation as Effingham Winery. However, La Grange was not part of the Thunder Oak HOA. La Grange was served by a public road, unlike Effingham. Supervisor Stirrup asserted that the objectors against La Grange were few in number, but strident. There were no lawsuits on the establishment of La Grange, nor did the Thunder Oak HOA file any VABC objections. He indicated that La Grange was a more derelict property than

Effingham Winery Summary

Effingham Manor. He also opined that Alexander Lakes was in the pathway of Manassas airport, supporting the idea that there is a high ambient noise level in Alexander Lakes to which an event center would not impact. However, this airport pathway assertion was shot down by other witnesses. Supervisor Stirrup indicated that he lived 10 miles from Alexander Lakes, and that he has visited it sporadically over the years. In his testimony, he believed that the 2007 SUP enacted for Effingham Manor was still in effect, but he waffled on this testimony on what it included (outdoor events). He has never met with any of the objectors. During his few visits to Effingham Manor, he never observed being used as an event center, which the 2007 event center permitted. Mr. Stirrup discussed the Circuit Court litigation at length regarding the nature of the 2007 SUP and the actions of the Effingham Farms HOA. For example, there is a question at law as to whether Effingham Manor (lot 27) of Alexander Lakes is formally part of the HOA. Mr. Stirrup was asked for his opinion on the issue, and Clara Williamson permitted his testimony. However, she precluded the objectors’ attorney from bringing up issues related to the circuit court trial in the testimony of other witnesses. The rule of “not bringing the court case” into the VABC hearing seemed to apply to only one side in the hearing. When he was a supervisor, Mr. Stirrup worked with the applicant, Mr. Pearmund, to develop a county planning document that encouraged the development of wineries in Prince William County. Mr. Pearmund, several years later, then used this document as a reference supporting his desire to create the winery at Effingham Manor. Mr. Pearmund indicated that he has been a partner, manager, or consultant in the establishment of over 16 farm wineries in Virginia. When PSW first started, PSW sold wine bottled at Pearmund Cellars under a PSW label, while PSW’s vine’s matured. Mr. Pearmund is no longer affiliated with La Grange, as that facility has been purchased by a Chinese investor. He is also no longer affiliated with the Winery at Bull Run. He also owns Vint Hill Craft Winery in Fauquier County. He indicated that the local Vint Hill Economic Development Authority “invited him” to come in and develop the Vint Hill Craft Winery. He also indicated that the G and G employees who are the board members of Effingham Farms HOA “invited him” to purchase Effingham Manor and turn it into a winery. Mr. Pearmund also offered several exhibits attesting to his good character and the wineries he runs. One of them was from the Sherriff of Fauquier County, who indicated that “no one complains about wineries in Fauquier.” This statement seems incredulous given that Fauquier County has become “ground zero” in the farm winery and restrictive covenant conflicts in Virginia. Mr. Pearmund testified that his approach is to create a “high-end wine experience.” He is not trying to replicate the model of other farm wineries where they have tastings, live music, and picnic tables. He indicated that such a business model (the one used by PSW) attracts a “lower

Effingham Winery Summary

end clientele.” Patrons who remain on premises “a long time” do not create high “per person/per visit sales.” As a result, he wants only to provide “mood music” and not “live music” to create a “lively tavern atmosphere.” He does not want customers bringing in children. His targeted marketing profile are affluent empty nesters over the age of 40 who are willing to purchase a case of wine at $30 per bottle. He envisions them sampling their wine while walking the grounds and casually visiting the manor house. He mentioned that he has a high respect for historic conservation. He father lives in England in a 16th century home, while his brother lives in a 14th century dwelling. He has been restoring an historic formal garden at Effingham Manor. He is also populating with many historic antiques, including art work that has appraised at more than $20,000. He had an expensive archeological study conducted prior to start of any work on the property. Although it spoke to the circuit court law suit, Mr. Pearmund indicated that he never intended to use the 2007 SUP, even though it influenced his decision to buy the property. He viewed the SUP as only influencing the manor house (lot 27), and not the rest of the property he purchased. He views that remaining property as supporting a winery as a “by-right” (no approval needed) use due to its A-1 zoning status. He purchased lot 23a, which is adjacent to lot 27, so that he could have a “seat at the table” for the HOA. Mr. Pearmund believes that lot 23a is within the HOA, but not lot 27 (the manor house). If it is not within the HOA, then it would not be subject to the covenant’s “residential only” rule. The covenants do not have language that would allow agriculture. Mr. Pearmund believes that the central private road of Alexander Lakes, Trotters Ridge Place, has been a road that has carried agricultural equipment since before the creation of the Alexander Lakes Subdivision. Mr. Pearmund, in a 2016 signed an agreement with the Effingham Farms HOA director, without the required consent of homeowners, agreeing to shoulder 50% of the road maintenance cost for Trotters Ridge Lane, given the traffic that the winery would produce. As part of the Circuit Court case, it is not clear whether lot 27 and the manor house would fall under any Prince William County limitations or whether VABC would permit it to be swept up under the general Class A winery license. Mr. Pearmund stated that “all Virginia builders construct everything to code.” However, in 2015, the Fairfax County Fire Marshall documented enough problems with the Paradise Springs Winery facility to close the facility (constructed in 2011) to visitors and employees, if it were not protected as a “farm” under the State Uniform Building Code (SUBC). Mr. Pearmund indicated that the septic system at Effingham Manor “had failed.” It is unknown what the impact might be on Effingham Farms HOA to have a “failed septic system” in place, for what was effectively a common use property prior to Mr. Pearmund’s purchase. Special Agent Katie Kelly, who is responsible for farm wineries, breweries and distillery enforcement in Loudon, Prince William, Fairfax, and Arlington Counties, as well as the cities of

Effingham Winery Summary

Falls Church, Fairfax, Manassas, Manassas Park, and Alexandria, testified on the ins and outs of the farm winery laws. On the issue of the “remote license”, any Class A winery can apply for up to five remote licenses. A winery cannot use one in a restaurant that already has a license. However, it can use it in a facility, such as the manor house, or a cupcake shop, where it wishes to sell its wine. Her experience is that few wineries exercise all five, simply because of the manpower and paperwork involved. As for transferring between two farm wineries, each with a farm license, there is a limit of how much can be transferred. Farm wineries can have wholesale distributor licenses, or they can use the facility of a Virginia Wholesale Distribution Company to make the transfers. Many wineries in the Commonwealth use VWDC to distribute and personally deliver their wines to local retailers. Over 180 wineries participate. The mandatory use of a wholesale distributor in the Commonwealth had been in place since the end of Prohibition. In 1980, the General Assembly exempted farm wineries from the three-tier system of distribution and allowed them to sell directly to ABC licensees. However, on July 1, 2006, a U.S. district court invalidated Virginia’s distribution laws, and farm wineries were then required to use the three-tier distribution system to sell their wines.

The Three Tier System effectively requires the alcohol industry to consist of a large number of competitors. Those engaged in distribution and retailing are mostly small businesses and virtually all are located here in Virginia. Thus, they are easier to regulate than huge, remote conglomerates, some of which might be located overseas. This helps ensure that every product sold in Virginia pays its fair share of Virginia taxes, collected by the licensees themselves.

Most importantly, since the distribution tier cannot be controlled by manufacturers, it is relatively easy for new products to enter the industry and gain market access through such independent distributors. Witness, for example, the Virginia craft-brewed products and wines that have arrived in the marketplace in recent years and enjoy considerable consumer appeal. The financial impact of this decision forcing Virginia farm wineries to adhere to the three tier system was felt by many of the wineries. They were either too small for a wholesale distributor to consider, or the costs were too high. Then, in 2007, the General Assembly approved legislation allowing small farm wineries to distribute as many as 3,000 cases of their own wine each year to stores and restaurants through the state agriculture department. Thus, the VWDC was born and brought wholesale distribution back to the farm wineries. There were no objections based on well-water, septic, possible storm water violations, Chesapeake Bay Protected Riparian areas (the Ivers’ Farm wetland may be one of these), and EPA regulations. Those objections are the only ones that advocates in the Occoquan Watershed have been able to get to “stick” against FWBDs, although they have been enforced by other agencies than. There are six wineries in Virginia that the EPA considers to be compliant in

Effingham Winery Summary

Virginia out of 288 wineries (Albemarle-2, Fluvanna-1, Bedford-1, Loudon-1, and PSW). None of the wineries associated with Chris Pearmund are compliant. Clara Williamson dismissed all of the objections in the hearing, but for the first “peace and quietude”, based on lack of substantiation. To those not on the side of the applicant, the hearing officer appeared one-sided. VABC seems “hell-bent” on approving and protecting farm wineries, breweries, and distilleries to exist anywhere and do just about anything without any exercise of the normal considerations accorded to neighbors and normal citizens. According to the law, VABC should deny a license if one of the following exist: 1. Does not conform to the requirements of the governing body of the county, city or town in which such place is located with respect to sanitation, health, construction or equipment, or to any similar requirements established by the laws of the Commonwealth or by Board regulation; 2. Is so located with respect to any residence or residential area that the operation of such place under such license will adversely affect real property values or substantially interfere with the usual quietude and tranquility of such residence or residential area; or 3. The number of licenses existent in the locality is such that the granting of a license is detrimental to the interest, morals, safety or welfare of the public. In reaching such conclusion the Board shall consider the (i) character of, population of, the number of similar licenses and the number of all licenses existent in the particular county, city or town and the immediate neighborhood concerned; (ii) effect which a new license may have on such county, city, town or neighborhood in conforming with the purposes of this title; and (iii) objections, if any, which may have been filed by a local governing body or local residents. Other parts may also apply. In numerous cases, county governments and local homeowners have submitted testimony and evidence to demonstrate that these thresholds for denial have been reached. Yet no hearing officer has yet denied a license to a winery. Only in the B-Chord I case in Loudon County, was a license denied at the VABC appellate level in Richmond based on “quietude” and “tranquility.” Can VABC give a standard where it would deny a license based on the above criteria? Clara Williamson, in her 2009 decision permitting a license for Paradise Springs Winery, cited the applicants to maintain the historical and rural character of the property. The applicant’s septic application called for a maximum number of 30 cars and 80 visitors per day. However, the actual numbers are 20 times that number. Her words included the statement on the last page of the 2009 finding: “It should also be noted that the ABC Act contains sufficient safeguards to allow the continued monitoring of operations of ABC licensees by ABC Enforcement agents. If conditions change or it is later determined that there is a substantial interference with the peace and quietude of neighborhood residents, disciplinary changes may be brought against the licensee.”

Effingham Winery Summary

These words were quoted to her on the record in the Bates on Yates hearing and she acknowledged writing them. However, it has had no effect. She continues to rule in favor of winery applicants. She has been overruled in at least one case, where they applicant had a police record. The Town Council of Clifton has written a letter indicated that they have concerns about the peace and quietude effects emanating from Paradise Springs Winery. In an August 2015 meeting, Special Agent Kelly’s supervisor, Shawn Walker, spelled it out for Clifton residents. The only circumstance that would cause VABC to withhold a license based on the concerns listed in paragraphs 1, 2, and 3 above, would be if a County Board of Supervisors voted in opposition to a license. Even then, it would not be guaranteed. The farm winery, brewery, and distillery legislation has removed from local planning and zoning administrations the functions that they are charged with enforcing and handed it over to the VABC. However, VABC refuses to perform this zoning function. The general belief was expressed is that the only way to affect change in the relentless march of “agritainment” is to influence the General Assembly to make legislative changes. Note: After the hearing, the homeowners galvanized to vote out the residual directors of the HOA who remained from the control of the developer, as the developer only controlled a minority of the total lots in the neighborhood.

Alexander Lakes HomeownersObjections to Proposed Effingham Winery

VABC Hearing March 9-10, 2017

Testimony from Homeowner Kimberly Dalrymple

1. Property Investment2. Residential Neighborhood 3. Rural Crescent4. Invasiveness of Winery and Events Center

Proximity of private driveway to winery and events center

Proximity of Alexander Ballroom “Wine Barn” to Ivers’ property line (fence)

View of unbuffered and sprawling winery parking lot from Trotters Ridge Place.

Testimony from Homeowner: Andy Dalrymple, PE

1. Effingham Manor and proposed winery location

A. No direct access to state maintained road

B. Private Road, Individually Owned and HOA maintained

2. Vehicle Traffic Impact: Residential vs Commercial

3. Road “As-built” conditions vs designed

4. Unauthorized Road Maintenance Agreement dated January 11, 2016

5. Current Road Conditions

6. Code Regulation

7. Trespass on HOA Property

Effingham Winery: Only Access Via Private Neighborhood Road

28

34

36

35

Source: Prince William Countyhttp://pwc.publicaccessnow.com/AddressSearch.aspx

The private residential road, Trotters Ridge Place, lies entirely within the property lines of residential lots 28, 34, 35 and 36.

Effingham Manor Adaptive Reuse SUP #PLN2016-00014 March 18, 2016 Submittal

Effingham Winery Traffic Estimate: 213 VPD (Vehicles per day)Based on the Event Center & Property Buildings

Vehicles per day = Trips in & out

Essentially: 106 cars per day entering and exiting the neighborhood on commercial business.

Effingham Manor Adaptive Reuse SUP #PLN2016-00014 March 18, 2016 SubmittalEffingham Winery Defined Traffic Information

Trotters Ridge Place County Approved Private Road Design - March 23, 2005

Trotters Ridge Private Road Design: 400 Vehicles per day

Based on approximately 40 Residential lots at 10 vehicles per day per Prince William County Design Guidelines

213 VPD generated by the Winery added to 400 VPD design for residential use:613 VPD

Exceeds the road design capacity by over 53%.

Effingham Manor Adaptive Reuse SUP #PLN2016-00014 March 18, 2016 SubmittalEffingham Winery Defined Traffic Information

Effingham Manor Adaptive Reuse SUP #PLN2016-00014 March 18, 2016 Submittal

213 additional VPD generated by the WineryExceeds the road design capacity by over 53%.

Only 1/2 of the design pavement thickness currently installed.

Trucks servicing the Winery will accelerate road deterioration.

Trotters Ridge Place Current Road Conditions

Trotters Ridge Place Current Road Conditions

Road Maintenance Agreement – January 11, 2016

With no notice to the community or consent by affected homeowners, a Road Maintenance Agreement was improperly executed with

Effingham Winery by the current unauthorized HOA Board.

Under the agreement Effingham Winery will pay 50% of the road maintenance cost.

This falls woefully short of mitigating the impact on our neighborhood.

The primary impact, commercial traffic and visitor intrusion into our private neighborhood, cannot be mitigated.

Effingham Manor Adaptive Reuse SUP #PLN2016-00014

Number of Events Per

Year

Commercial Visitors Per

Event

Commercial Visitors Per

Year

75 Small Events Annually (defined as 100 or fewer participants)

75 100 7,500

2 Medium Events Weekly (defined as 101-200 participants)

104 200 20,800

Daily Wine Tasting (59 Vehicles Per Day)

363 60 21,780

Total Commercial Visitors per Year: 50,080

True Impact On Our Community: Traffic and Commercial Visitors

Aden Rd. and Trotters Ridge PlaceTraffic Example, Friday 3-18-16

Approximate 3 mi. back-up frequentlyto 4-way stop at Fleetwood Dr.

Barrel Oaks Parking 4-16-16

Paradise Springs 4-22-16

Examples of Traffic at Other Wineries

Paradise Springs 4-22-16Paradise Springs 4-22-16

Examples of Traffic at Other Wineries

Lack of Building Code Regulation

Event centers constructed without code regulation and inspection under the guise of “agriculture” are ethically troubling for a Professional Engineer charged by the Commonwealth to protect the public safety.

Who is safeguarding the public?

Effingham Winery BarnSource:

https://www.facebook.com/EffinghamManorWinery/photos/pcb.1445557368793015/1445556705459748/?type=3&theater

23A

22A 21A

EF HOAProperty

Effingham WineryLot 27

Lack of Respect for Private Property Rights

Source: Prince William Countyhttp://pwc.publicaccessnow.com/AddressSearch.aspx

Effingham Manor Adaptive Reuse SUP #PLN2016-00014 March 18, 2016 Submittal

Event Center

Vineyard

EF HOA Property

EF HOA Property line clearly delineated on Effingham Winery’s own site plan.

EF HOA PropertyEffingham WineryLot 27

23A

22A 21A

Source: Prince William Countyhttp://pwc.publicaccessnow.com/AddressSearch.aspx

+/- 200ʹ Trespass Over Property Line

Approximate Property Line

Geothermal Lines

EF HOA Property

Effingham WineryLot 27

50ʹ Scale Bars

Event Center

Manor House

+/- 90ʹ

VineyardArea

Source: Prince William Countyhttp://pwc.publicaccessnow.com/AddressSearch.aspx

Lack of Respect for Private Property Rights

Testimony from Homeowner Halle Raisigel

1. HOA Concerns

2. Usual and Customary Events

3. Events at Effingham to Date

Testimony from Homeowner Vonnie Ivers

1. Impact on FarmA. NoiseB. Horses

2. TrespassingA. Destruction of WetlandsB. Fence

Proximity of Ivers’ pond to Manor and “Wine Barn”

Proximity of Alexander Ballroom “Wine Barn” to Ivers’ property line (fence)

Wetland Bank:Trespass and Property Damage

Testimony from Homeowner Jane Fisher

1.Home Location2.Buffering and Signage3.Trespass and Property Damage

Trotters Ridge Place runs thru Fisher Private Property. Buffering attempt with new landscaping

Damage to Fisher Property by Effingham vehicles

Additional Testimony by Clifton and Alexander Lakes Residents:Milissa SandersHal MooreDonna McGrathBruce KarsonAaron and Cohava GelberRubin Cuffee

Testimony from Homeowner Bill Shuell1. Family Use of Private Roads

2. Safety Concerns

A. Lack of Lighting, Sidewalks, and Striping

B. Inebriated Drivers

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VIRGINIA ALCOHOLIC BEVERAGE CONTROL BOARD

RICHMOND

IN THE MATTER OF EFFINGHAM MANOR, LLC EFFINGHAM MANOR 14325 TROTTERS RIDGE PLACE NOKESVILLE, VIRGINIA 20181-2958 SENT VIA STANDARD MAIL MAILING ADDRESS 6190 GEORGETOWN ROAD BROADRUN, VIRGINIA 20137-2044 SENT VIA CERTIFIED MAIL APPLICATION FOR FARM WINERY – CLASS A INCIDENT NO. 201612010116 HEARING HELD At Woodbridge, Virginia March 9 and 10, 2017 ADMINISTRATIVE HEARING OFFICER CLARA A. WILLIAMSON APPEARANCES FOR THE BOARD: Katie E. Kelly, Senior Special Agent FOR THE OBJECTORS: Sharon E. Pandak, Esq. Greehan, Taves, & Pandak, PLLC 4004 Genesee Place, Suite 201 Woodbridge, Virginia 22192 Halle Raisigel 14640 Sulky Run Court Nokesville, Virginia 20181 Kimberly Dalrymple Andy Dalrymple

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Vonnie Ivers Jane Fisher Jeanine Lawson, Supervisor Brentsville District Bruce Karson William Shuell Cohava Gelber Rubin Cuffee FOR THE APPLICANT: Philip C. Strother, Esq.

Philip Carter Strother, LLM The Hillyard-Maury House 15 East Franklin Street Richmond, Virginia 23219 Chris Pearmund, Managing Member/Owner

Jerry Jackness Michael Dyer Holley Green Dr. Marvette Thomas Scott Jacobs John Stirrup Debra Friedman Cite As: IN RE: Effingham Manor, LLC, Appl. #090947 (06/22/2017)

Reported by Katherine E. Hodge

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O B J E C T I O N S

(Farm Winery – Class A)

Incident No. 201612010116

1. The place to be occupied by the applicant is so located

with respect to a residence and residential area that the

operation of such place under the license will adversely

affect real property values or substantially interfere with

the usual quietude and tranquility of such residences and

residential area. REF: Section 4.1-222 A.2.d. of the Code

of Virginia.

2. The applicant or person enumerated in Section 4.1-222 A.1.,

Chris Pearmund, has been convicted of a felony or any crime

of offense involving moral turpitude. REF: Section 4.1-222

A.1.b. of the Code of Virginia.

3. The applicant or person enumerated in Section 4.1-222 A.1.,

Chris Pearmund, is not a person of good moral character and

repute. REF: Section 4.1-222 A.1.d. of the Code of

Virginia.

4. The applicant or person enumerated in Section 4.1-222 A.1.,

Chris Pearmund, has demonstrated by his or her police

record a lack of respect for law and order. REF: Section

4.1-222 A.1.h. of the Code of Virginia.

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5. The place to be occupied by the applicant does not conform

to the requirements of the governing body of the County of

Prince William with respect to sanitation, construction or

equipment or any similar requirements established by the

laws of this Commonwealth or by the regulations of the

Board. REF: Section 4.1-222 A.2.a. of the Code of Virginia.

6. The place to be occupied by the applicant is so located

that violations of the ABC Act, the laws of the

Commonwealth, or local ordinances relating to peace and

good order would result from issuance of the license and

operation thereunder. REF: Section 4.1-222 A.2.b. of the

Code of Virginia.

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I. BACKGROUND:

A. Preliminary Matters

1. The hearing in this matter was convened in order to

consider the objections set forth in the Notice of Informal

Conference/Hearing Before Hearing Officer, to the granting of a

Farm Winery - Class A License to Effingham Manor, LLC, t/a

Effingham Manor (“Applicant”) 14325 Trotters Ridge Place,

Nokesville, Virginia 20181-2958, Incident No. 201612010116.

2. An Informal Conference was held prior to the hearing,

during which all parties and objectors were present and

participated. It was ascertained that the ABC Bureau of Law

Enforcement (“Enforcement”) was neutral regarding the granting

of the license. Following commencement of the hearing, the

application file was made part of the record.

3. The hearing notice contained objections numbered 1-6;

however, following a two-day hearing, Counsel for the Objectors

agreed that Objections 2 and 4 should be dismissed for lack of

evidence being presented to substantiate these objections.1

B. Summary of Background Facts

4. The place to be occupied by the Applicant consists of

approximately 13 acres and is located southwest of the

intersection of Aden Road (Route 646) and Trotters Ridge Place

1 Following the hearing, the Hearing Officer additionally dismissed Objections 3, 5 and 6 for lack of any evidence to support these objections, leaving only Objection 1.

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in southwestern Prince William County, Virginia. It consists of

the Effingham Manor historic structure complex, a plantation

constructed about 1767 (“Manor House”), and a newly constructed

winery and events facility completed in 2016 (“Winery”). The

Manor House and Winery are referred to collectively herein as,

“Subject Property.” This property on which the Winery was

constructed is zoned A-1, indicating a zoning classification for

agricultural use (see App. Exs. Binder, Tabs 4 & 14, Exhibit 8,

and Exhibit 1).2 The Prince William County Zoning Ordinance

provides that a farm winery located in the A-1 district on lots

of two acres or greater shall be permitted by right (see App.

Exs. Binder, Tab 3, Exhibit 8).

5. The Manor House is a historical landmark and is

recognized as a Designated Cultural Resource (DCR) in the Prince

William County Comprehensive Plan. It is identified for Retail-

Historic use for activities, including catered events,

receptions, and weddings. The land surrounding the Manor House

was reduced from 494 acres to 13 acres as part of a subdivision

of the property and development for single-family dwellings

(App. Exs. Binder, Tab 2, Exhibit 8, and Exhibit 1).

6. On May 10, 2004, a Deed of Subdivision and Easement was

recorded in the land records of Prince William County that

2 The Applicant’s Exhibit Binder was received into evidence as Exhibit 8 and will be designated herein as App. Exs. Binder, Tab __, Exhibit 8. The remainder of exhibits will be designated as Exhibit __.”

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subdivided a large 494 parcel where the Manor House is located

into 49 lots, which created Effingham Farm Agricultural

Subdivision, also referred to as the Alexander Lakes

Subdivision, in which all of the lots are zoned A-1. The plan

for this subdivision was to develop the Manor House as an “event

center for purposes of parties, meetings, weddings and similar

events …” in the middle of the agricultural subdivision of

single-family homes and for an ABC license to be ultimately

granted (see App. Exs. Binder, Tab 5, Exhibit 8). The Subject

Property, located on Lot 27, was subsequently removed from the

residential use only restrictions of the Declaration of

Covenants, Conditions, and Restrictions applicable to the other

lots in the subdivision (see App. Exs. Binder, Tab 7, Exhibit

8).

7. Mr. Chris Pearmund, managing member of Effingham Manor,

LLC, was approached in 2015 to purchase and develop the Subject

Property as the potential location of a Virginia farm winery.

Based upon his testimony, discussed, infra, Mr. Pearmund

conducted extensive due diligence before purchasing this

property in order to confirm that the property was suitable for

a farm winery; that the zoning permitted a farm winery by-right;

that the Prince William County Comprehensive Plan identified the

potential use of the Manor House for weddings and events; that

the property was not restricted by the covenants of the

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agricultural subdivision; and that Prince William County

approved a Special Use Permit (SUP) in 2007 that allowed large

scale events with outdoor amplified music.3

8. Mr. Pearmund purchased the Subject Property in 2015 in

reliance upon the results of his investigation and subsequently

commenced the design and construction of the Winery, which was

completed in March 2016. As of the date of the ABC hearing, the

budget for the entire project, including restoration of the

Manor House and its grounds, was in excess of $3 million. He

was successful in obtaining all of the required State and local

permits concerning the occupancy and use of the property.

9. In late October 2015, Mr. Pearmund spoke with Senior

Special Agent Katie Kelly and requested that a remote license be

issued to Pearmund Cellars Farm Winery, License No. 18986,

located in Fauquier County. These remote privileges would be

exercised at the Effingham Manor location at 14325 Trotters

Ridge Place, Nokesville, Virginia, and entitled Pearmund Cellars

to exercise the full gambit of the retail privileges at that

location, including the sale and consumption of alcoholic

beverages. An investigation was conducted, and a remote license

3 The parties disagreed as to whether the SUP was still in effect during this time frame; however, counsel for the Applicant argued that this is irrelevant and outside the scope of the Hearing Officer’s jurisdictional authority. The Hearing Officer agrees that the continued existence of the SUP is irrelevant to a determination of the issues in this case.

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was issued to Pearmund Cellars Farm Winery, LLC on February 4,

2016. On September 9, 2016, an application for a Farm Winery -

Class A License was filed by Effingham Manor, LLC, with the ABC

Board. Numerous residents contacted Agent Kelly to note their

objections on the basis of concerns they had about the location

of the proposed winery and the effect it would have on their

residences. A hearing request was then filed by Agent Kelly.

In January 2017, Pearmund Cellars requested renewal of the

annual remote license, as it would expire on February 3, 2017.

However, based on the objections of the residents to this

renewal, Mr. Pearmund withdrew the remote request and decided to

wait for the application hearing on March 9 and 10, 2017.

C. Objectors’ Contentions

10. Counsel, on behalf of the approximate 12 residential

objectors, contended that the application for a Farm Winery –

Class A License in this case should be denied, as it

substantially interferes with the usual quietude and tranquility

of the residents of the Alexandria Lakes Subdivision. The first

asserted reason is because the Winery can only be accessed by

Trotters Ridge Place, a small private road that was built for

residents and not commercial traffic. Therefore, the Winery

allegedly modified the homeowners’ right of ingress/egress

across this private road, as they can no longer effectively use

the road. Also, the homeowners will be forced to pay increased

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road maintenance costs, which will affect their property rights,

as the road will be transformed into a commercial route.

Consequently, the operation of the Winery will burden Trotters

Ridge Place with commercial traffic resulting in substantial

interference with the homeowners’ easement over the private

road.

11. It was further contended that the Winery is also

infringing on the homeowners’ easement to enjoy the Common Area

in the Subdivision by constructing geothermal lines and planting

vines past its property line onto Common Area property. As

such, this allegedly interferes with the homeowners’ quietude

and tranquility. It was asserted that the Winery’s claim that

the homeowners were aware that a commercial business would come

to Effingham Manor is incorrect. It was argued that any

statements by the Applicant relating to the removal of Lot 27

from the Declaration of Covenants, Conditions and Restrictions

should be disregarded in the context of the ABC application.

This was because the question as to whether the document

removing Lot 27 was in conformance with state law is the subject

of litigation in the Prince William County Circuit Court.

12. Based upon the claims asserted on behalf of the

objectors in the ABC application case, a group of 12 homeowners

residing in the Alexander Lakes Subdivision (the “Subdivision”)

had filed an action in Prince William County Circuit Court for

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Declaratory Judgment, Injunctive and Other Relief. The action

was brought to enjoin the construction and operation of a winery

and events center on Lot 27 in the Subdivision. The findings

and conclusions of the court were issued in a letter dated May

26, 2017, which was subsequent to the ABC hearing but prior to a

decision being issued by the Hearing Officer (see Gerald

Dalrymple, et al. v. Effingham Farm Homeowners Ass’n., Inc., et

al., CL16-4025-00). The findings and conclusions of the court

are summarized below.4

D. Findings and Conclusions of the Circuit Court 13. The Plaintiffs in the circuit court action are a group

of 12 homeowners who reside in the Subdivision, and after

several pretrial motions, the Applicant is the only remaining

defendant. The Court found that the Subdivision consists of

approximately 495 acres, and on Lot 27 of the Subdivision sits

Effingham Manor, a historic structure built in 1776. This area

of Prince William County was historically farmed in large tracts

by individual families, but by the 21st century has given way to

the farmette within a rural setting. The 1998 Comprehensive

Plan placed the land at issue within the “Rural Crescent” of

Prince William County. There are no use restrictions over land

within the Rural Crescent, but rather all lots designed for

4 The claims of the objectors concerning alleged noise, trespassing and walking issues are discussed, infra, through the testimony of witnesses.

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development are restricted to no smaller than 10-acre parcels.

The Rural Crescent does not attempt to create a residential

setting, only to control urban sprawl by encouraging development

in areas where there is easy access to public utilities.

14. The Court further found that originally two limited

liability companies VCF, LLC, and NVR, LLC, owned all of the

land that makes up the Subdivision. On April 28, 2004, Mr.

Frank Smerbeck, as managing member of VCF, executed the Articles

of Incorporation for the HOA. VCF subsequently filed the Deed

of Subdivision and Easement on May 19, 2004, which breaks the

Subdivision into 49 lots. Trotters Ridge Place is the only

entrance and exit to the Subdivision, and Lot 27 is the second

lot from the entrance of the Subdivision. On December 12, 2005,

VCF filed the Declaration of Covenants for all 49 lots. On

August 23, 2006, VCF filed an Amendment to the Covenants, which

NVR and VCF signed. The Amendment purports to remove Lot 27

from these covenants. On December 30, 2005, nine and a half

years later, VCF sold Lot 27 and 23A to Effingham Manor. It is

undisputed that Lot 23A is restricted to residential use.

15. In addition, on January 11, 2016, Effingham Manor

entered into a Road Maintenance Agreement (RMA) with Mr. Michael

Dyer, one of the HOA Directors, which requires Effingham Manor

to pay 50 per cent of the maintenance costs for Trotters Ridge

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Place due to the increased traffic volume imposed on the

Easement due to the operation of the winery business.

16. The remaining requests for relief set forth in the

Circuit Court Complaint are a judgment against Effingham Manor

for unpaid HOA dues for Lot 27 and Lot 23A, a declaratory

judgment that Effingham Manor’s proposed use of Lot 27 and

Trotters Ridge Place breaches several covenants, and an

injunction against Effingham Manor’s proposed use of Lot 27 and

Trotters Ridge Place. The remaining covenants Plaintiffs allege

will be violated are: Prohibition against Non-Residential Uses

(Section 7.1 (a)), Prohibition against Annoyances or Nuisances

(Section 7.2 (a)), Prohibition against Keeping Commercial

Vehicles (Section 7.2(d)), Prohibition against Advertising Signs

(Section 7.2(i)), and Private Road Easement (Section 3.2). At

trial, Plaintiffs also requested the Court to determine that the

RMA is void due to ultra vires acts of Mr. Dyer, the former

Director.

17. The Court denied Plaintiffs’ request for declaratory

judgment and an injunction against Effingham Manor’s use of Lot

27 as a winery and events center. Plaintiffs had argued that

the proposed use of Lot 27 would breach the Declaration of

Covenants because the Amendment never became effective, as it

was not filed with a certification, which was required by the

Virginia Property Association Act (“POAA”). Therefore,

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Plaintiffs argued Lot 27 was still subject to the covenants.

The Court, however, found that the Amendment removing Lot 27

from the Declaration of Covenants was valid under the

Declaration. It was executed under the terms of the

Declaration, which provides in Section 12.9 that Owners are

permitted to amend the covenants by recording in the land

records “an instrument signed by, or the affirmative vote of,

the Owners of not less than seventy-five percent (75%) of the

Lots.” It is undisputed that on August 23, 2006, 100 per cent

of the owners of the Subdivision signed the Amendment and

recorded it in the land records. Further, Section 12.10 permits

the Declarant for a period of seven years following the date of

recordation of the Declaration to modify, amend, correct or

change any of the provisions as the Declarant may deem necessary

to correct errors or omissions.

18. The Court further determined that the Declarant in

this matter was VCF, and its managing member, Mr. Smerbeck,

recorded the Declaration in 2005 and the amendment in 2006. At

trial, he testified that he did not intend to subject Lot 27 to

residential restrictions because of its historical significance

and potential for other uses, such as events. He described the

inclusion of Lot 27 in the Declaration as a scrivener’s error

that he sought to fix by filing the Amendment. The Court found

the Amendment valid because it was executed in accordance with

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common law, pursuant to the Declaration, and not subject to

additional requirements of the POAA, which is permitted by

precedent of the Supreme Court of Virginia.

19. The Court also denied Plaintiffs’ request for

declaratory judgment and injunction against Effingham Manor’s

use of Trotters Ridge Place for access to Lot 27 as a winery and

events center. In this connection, the Plaintiffs requested the

Court to find the RMA invalid in order to extinguish any

easement rights granted by the RMA. However, the Court did not

find that the RMA altered or attempted to alter the easement

over Trotters Ridge Place, and, therefore, declined to rule on

the RMA’s validity, describing it as only a maintenance

contract.

20. Plaintiffs’ remaining argument is that Effingham

Manor’s proposed use of Trotters Ridge Place breaches the

covenants in the Deed and Declaration, which designate Trotters

Ridge Place as a private road, and, therefore, Plaintiffs argue

the proposed use of Lot 27 would violate the Subdivision’s

restrictions by overburdening the easement. In applying the

applicable law to determine whether a use overburdens an

easement, the Court found that the proposed use of Trotters

Ridge Place would not constitute an unreasonable burden on the

servient estate. The Deed is the original grant of easement on

this road and establishes each owner’s right to use the easement

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for ingress and egress. Neither the Deed nor the Declaration

contains any restrictions on the easement’s use, and the Court

rejected Plaintiffs’ contention that the easements through the

Subdivision were for the purpose of a residential neighborhood.

The Court stated that a non-residential use must have been

reasonably contemplated by the grant of easement to The

Effingham Manor via Trotters Ridge Place. The Court concluded

that based on the clear language of the granting documents, in

addition to the historical uses of Lot 27, although the proposed

use may increase traffic, it will not create an additional

burden that was not contemplated by the original grant of

easement. Finally, because Lot 27 was removed from the

Declaration, Trotters Ridge Place is not subject to the

Declaration’s residential restrictions.

21. In summary, the Court made the following conclusions:

Plaintiff’s request for declaratory judgment and injunction

against Effingham Manor for its proposed use of Lot 27 was

DENIED; Plaintiff’s request for declaratory judgment and

injunction against Effingham Manor for its proposed use of

Trotters Ridge was DENIED; Plaintiff’s request for the Court to

determine the validity of the RMA was DENIED; Plaintiff’s

request for judgment against Effingham Manor for unpaid HOA dues

as to Lot 27 was DENIED; Plaintiff’s request for judgment

against Effingham Manor for unpaid HOA dues as to Lot 23A was

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DENIED, but Effingham Manor was ORDERED to pay the balance of

HOA dues owed for Lot 23A within 14 days of the Court’s entry of

the Final Order (see Gerald Dalrymple, et al. v. Effingham Farm

Homeowners Ass’n., Inc., et al., CL16-4025-00).

D. Testimony of Objector Witnesses 22. Residential objectors were called to testify

concerning the alleged noise, trespassing, walking and other

related issues in the residential area pertaining to Objection

1. Ms. Kimberly Dalrymple resides on Lot 37, as shown on the

diagram of Effingham Manor and the surrounding lots, Exhibit 1.

She stated that her biggest concern was the increased volume of

visitors and traffic that would potentially come into the

private subdivision if the ABC license is granted. This would

affect the residents’ ability to use the roads to walk, walk

their dogs and ride their bikes. She also expressed concern

that if visitors to the Winery consume alcoholic beverages and

drive on the private roads, it would interfere with the

residents’ ability to use the property.

23. Mr. Andy Dalrymple also expressed concern over the

increased amount of visitors, which, in his view, would disturb

the tranquility of the neighborhood. He clarified that he was

only speaking about what he expected to happen from the use of

the Effingham Manor facility and stated that it was not yet

being used. He further stated that he was concerned about

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complete strangers coming into the neighborhood. When asked on

cross-examination how that would affect the neighborhood, he

stated, “I just don’t know.”

24. Ms. Halle Raisigel, who resides on Lot 48, located

approximately 0.4 miles from the Winery, expressed concern

regarding the increased amount of unknown visitors and traffic

to the neighborhood if the ABC license is granted. She stated

that residents would not be able to walk on the streets or walk

their dogs but stated candidly that she did not know what Mr.

Pearmund was going to do concerning the operation of the Winery

if the license is granted.

25. Ms. Raisigel identified a list, entitled “Events at

Effingham Manor,” which included meetings, tours and

entertainment of guests from March 13, 2016 through December 18,

2016, events held with a Temporary Activities Permit (TAP) on

August 13, 2016 and February 11-12, 2017, events that were

stopped and did not occur, and a list of Events at Pearmund

Cellars (see Exhibit 2). She also stated candidly that with

regard to Mr. Pearmund’s operation of the Winery, “I do not know

what he is going to do.” On cross-examination, she conceded

that Effingham Manor is not a gated community, and all types of

vehicles enter the neighborhood, including Federal Express

trucks, school buses and trash collecting vehicles. There is

also construction equipment and trucks that will enter the

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neighborhood, as there are still about 20 lots that are yet to

be developed. Ms. Raisigel stated that she knew about these

additional lots and the noise associated with new construction

when she purchased the property and also understood that it

would take approximately four months to construct each home.

26. Ms. Vonnie Ivers stated that she does not reside in

the Alexander Lakes Subdivision but resides on property directly

adjacent to Effingham Manor. She purchased this property

approximately 13 years ago in the Rural Crescent area of Prince

William County, as it contained 10-acre lots and was very quiet.

She shares a property line with the Winery. Her stated reason

for purchasing this property was for “quietude and seclusion.”

Her quietude has allegedly been affected by all of the

construction that is occurring in the area on weekends and into

the evenings. She has horses and has had to move them to a

paddock further away because of the construction noise and

activity, including a large crane that was scaring the horses.

According to her, she can get hurt when the horses get

“spooked,” as she could fall off of a horse and get injured.

27. Ms. Ivers further stated that the homeowners have

already had to deal with trespassers and property damage. On

two occasions, she has observed trespassers on her property. On

one occasion, one of Mr. Pearmund’s workers drove a piece of

machinery onto her property through a created, protected

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wetland, which tore up her grass and destroyed wetland plants.

She contacted the police, and Mr. Pearmund took care of the

matter internally. Also, Mr. Pearmund removed her fence and did

not replace it so that there is no longer a boundary delineating

her farm from the Winery property.

28. On another occasion, Ms. Ivers observed several people

at her pond with three dogs that were off of their leashes. Her

expressed fear was that if she was riding a horse, the barking

dogs could scare her horse and she could be injured. She

speculated that if the ABC license is granted, visitors are

going to want to come onto her property to see the pond and will

also be drawn to the historical cemetery. She fears that all of

the things that typically happen at wineries, e.g., bands,

music, festivals and use of microphones will destroy the

peaceful tranquility of her property. She stated that there

will probably be music played at the Winery that would be

annoying to her. A booklet of photographs illustrating various

properties in the neighborhood and showing relative distances

between the properties and the Winery was received into evidence

as Exhibit 6. Photographs of Ms. Ivers’ property, her horses, a

photograph of her pond illustrating the proximity of the pond to

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the Winery and a photograph illustrating the proximity of the

Winery to the Ivers’ property were included.5

29. Ms. Jane Fisher, who resides on Lot 28 in the

Subdivision, stated that her lot is located at the entrance to

the Subdivision and is a long narrow lot extending to lot 34

(see Exhibit 1). According to her, there is an enormous amount

of commercial traffic coming across her property all of the

time. There is also a problem with strangers looking into her

backyard, deck and windows. She opined that if the ABC license

is granted, her property will not be attractive to potential

buyers due to all of the traffic, which will amount to a public

freeway next to their home. As to all of the ways the

operation of the Winery will affect her peace and tranquility,

she stated: “The Winery patrons will damage my property and be

disrespectful; they will litter my property; they will trespass

on my property to view my pond; I will not be able to get in and

out of my driveway; there will be headlights shining into my

home at night; Winery patrons will be knocking on my door to ask

for directions; there will be problems walking dogs due to

traffic; and there will potentially be more crime.

30. Ms. Fisher further stated that she has already had

problems with trespassers and has put up no trespassing signs,

5 These photographs, which also include the Manor House, Winery and Events Center, Trotter Ridge Place, maps and other charts, were shown by video during the hearing.

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but to no avail. Mr. Pearmund has already had several events at

the Winery, and she has seen people walking over to her property

to view her pond. Additionally, some construction workers ran

off the road and created deep groves in her grass. In order to

create a buffer for privacy in her backyard, she has planted 25

trees; however, it will take years for them to buffer the

property. She conceded on cross-examination that she already

lives next to a public freeway, as the front of her property

faces Aden Road, which has concentrated levels of traffic.6

31. Ms. Cohava Gelber resides on Lot 42 in the Subdivision

and purchased her property about 10 years ago. Her expressed

concern is the traffic and noise from the construction of the

vineyards resulting in her having to change her walking routine

to avoid the Winery area. She did not want her granddaughter on

a bicycle to be around traffic. She stated that when the

facility is operational, it will impact the quietude and

tranquility of the neighborhood.

32. Mr. Rubin Cuffee, who resides on Lot 9, stated that he

enjoys living in the area and walks every day. However, with

the Winery in the neighborhood, he has had to change his walking

routines and can no longer walk when he desires to do so.

6 A photograph of the traffic on Aden Road is contained in the booklet, Exhibit 6, and also shown on a thumb drive submitted by the objectors during the hearing and made part of the record.

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33. Mr. Bill Shuell, a former police officer residing on

Lot 49, expressed concern about visitors to the Winery tasting

wine and then driving on the private roads in the Subdivision.

He and his family use the roads on a daily basis to walk dogs

and ride bikes and scooters. If the ABC license is granted, he

will be forced to alter their activities and change the walking

route.

E. Testimony of Applicant Witnesses

34. Mr. Jerry Jackness, who was the general contractor for

construction of Effingham Manor and a Class A licensed

contractor, stated that the construction began in the winter of

2016 and took approximately one year to complete. He was on the

property for about seven days per week and had the opportunity

to observe the surrounding parcels. According to him, he heard

heavy equipment being operated on the Ivers’ property, including

a bulldozer or excavator and bobcat. He stated you could tell

it was heavy equipment, as you could hear the ”beep, beep, beep”

sound from the backing up of the equipment and then you could

hear it running. This would happen continuously for several

days in a row and he heard it “a lot.”

35. Mr. Jackness further stated that while on this

property, he heard the discharging of artillery shells at

Quantico Marine Base (“Quantico”), which was loud enough to make

his trailer shake. He had a portable job-site trailer set on

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cinder blocks, and he experienced this on a regular basis, at

least several days per week. Additionally, he heard noise from

a government type of helicopter with huge propellers from

Quantico, which was so loud he could not engage in

conversations. He described the sound as being “in the air” and

stated that it occurred at least once per week. He also stated

that the PA system at Quantico was “very loud,” and it sounded

like an “air raid.”

36. Mr. Jackness also testified concerning the type of

insulation that was installed in the Winery and Events Center in

order to prevent sound from escaping from the facility. He

stated that the building was insulated with spray foam

insulation that is sprayed between the walls before the drywall

is installed, which keeps sound from escaping. There are no

gaps in the wall cavities, as it is completely sealed. The roof

system is sealed to the outside so no air or sound can escape

from the attic. He described this system as “overkill,” as it

costs double or triple the amount of standard insulation.

37. Additionally, sound attenuation panels were installed

throughout the event area of the building in an effort to reduce

the decibel level. The windows cannot be opened as they are

sealed, and the only way out is the exits. Mr. Jackness

participated in a test of the sound system and stated that the

sound could be heard inside when the music is played at a normal

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level; however, when standing outside, approximately 12 feet

from the front door, it sounded like a low-level conversation

between two people standing close to each other. He stated that

the sound was at a lower level than the sound coming from the

equipment on the Ivers’ property or from Quantico.

38. Mr. Michael Dyer stated that he is the Chief Operating

Officer for G&G, which company was the lender to the Effingham

development. He explained that VCF, LLC was the developer and

subsequently signed over its interest in the property to G&G so

that G&G owns all of the property that was owned by VCF. This

includes 14 to 16 new lots in the Subdivision; some of which are

developed, and some are yet to be recorded. He stated that his

company’s holdings are the largest in the Alexander Lakes

Subdivision, and the ownership is in favor of the Winery moving

forward. He is one of two directors of the Homeowners

Association and stated that Effingham Manor is not part of the

Homeowners Association. In his capacity as a director, he

executed a RMA with Mr. Pearmund for the use and maintenance

costs of Trotters Ridge Place by the Applicant.

39. Mr. Scott Jacobs, owner of Jacobs & Company and Vice

President of the Nokesville Business Association, stated that he

has been a real estate agent in the Nokesville area, which

includes the Subject Property, for approximately 17 years. He

has sold property in the Alexander Lakes Subdivision, and,

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according to him, the Winery has been an attraction for

potential buyers who were “elated” to know that the Winery may

be coming to the community. He stated that as a business leader

in the community as well as a member of the Nokesville Business

Association, “we welcome the winery with open arms … it is a

phenomenal way to feature a historic property and to have

somebody inject an economic investment into a project like this

to promote the one thing that the Rural Crescent is supposed to

promote … not to have this go through would be a tragedy.”

40. Mr. Jacobs further stated that “all Nokesvillians and

surrounding people” he had encountered over the last two years

who have known about this project are “absolutely excited about

the opportunity to have this tremendous opportunity come into

the Nokesville community.” He stated that there are well over

150 members of the Nokesville Business Association, and this is

“exactly what we wanted in the Rural Crescent, and we have

somebody that’s making the economic investment … we thought this

was an amazing opportunity.” He explained that a winery fits

well within the County’s Comprehensive Plan for the area.

41. Dr. Marvette Thomas, a local dentist and resident of

the Effingham Manor Subdivision, resides directly across the

street from Effingham Manor on Lot 35 on Trotters Ridge Place.

Her house is the closest house to the proposed Winery, and the

houses on each side of her on Lots 34 and 36 are vacant though

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the owners have expressed an objection to the Winery. She

purchased her property in 2010, and at that time was informed

about the possibility of the Winery and Events Center coming to

the area. According to her, that was the “attractor” that

brought her to the area. She realized in November 2015 that

there was going to be a vineyard and then felt that this was an

upscale type of venue that would be good for the community. She

became a vested partner in the business one year ago based upon

her belief that the facility would have a positive impact on the

social and economic value of the community.

42. Dr. Thomas testified concerning the usual traffic in

the community and stated that this includes heavy traffic along

Aden Road and commercial and construction vehicles along

Trotters Ridge Place that runs in front of her house and the

Winery. She stressed that this Subdivision is not a gated

community, but rather is open to the general public and is

freely accessible at all times. As to the usual noises and

activities in the neighborhood, she stated that the artillery

and explosive sounds of military training at Quantico result in

significant vibrations that shake the walls of her house. She

also stated that large private parties routinely occur in the

Subdivision that can be heard in the evenings. She further

stressed that she did not hear more noise from the vineyard,

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which she is closest to, than she hears from private parties and

more so at Quantico.

43. Mr. John Stirrup, a partner of Alcalde & Fay, a

government affairs firm, and former member of the Prince William

County Board of Supervisors from 2004-2011, stated that Mr.

Pearmund’s proposed winery operation and use of the Manor House

are consistent with the intended use of the Subject Property.

He further stated that the winery use is consistent with the

vision for the County’s Rural Crescent, the County’s

Comprehensive Plan, and the current zoning of the property. In

addition, he has 15 years of experience working with Mr.

Pearmund and described his conduct and character as exemplary.

44. Mr. Stirrup cited an example of working with Mr.

Pearmund that occurred when Mr. Pearmund had proposed opening a

Winery at La Grange located in the Prince William County

Gainesville District that Mr. Stirrup represented as a Board

Member. He recalled that some residents of the community

brought similar objections to those being raised in the current

application, e.g., noise, traffic, drunken behavior, etc. Mr.

Stirrup stated that Mr. Pearmund was sensitive to ensuring that

his operation would have no adverse impact on the surrounding

community, and, in fact, none of the alleged concerns ever

occurred. According to him, while Mr. Pearmund was managing

member of La Grange Winery, it was operated to the highest

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professional standard of excellence. He finally stated that he

chose to testify for Mr. Pearmund in this case because of the

misinformation and attempts to malign Mr. Pearmund’s excellent

character.

45. Ms. Deb Friedman stated that she resides in Broad Run,

Virginia, which is within half a mile of Pearmund Cellars, an

existing Virginia farm winery owned by Mr. Pearmund and located

in Fauquier County. She described the community surrounding

Pearmund Cellars as a rural area, which includes a variety of

homes and farms with families, children, horses and cattle in

the nearby area. She stated that her family purchased the home

about four and a half years ago, and they have enjoyed the

Winery, which was in existence at the time of purchase. She

described the roads as small two-lane roads with a variety of

curves and straightaways that are shared with patrons of the

winery. She stated that she has not experienced any problems

with drunk driving, traffic, amplified music coming from the

winery or any other problems. She speaks regularly with her

neighbors, none of whom have voiced any complaints and, in fact,

visit the Winery and seem to enjoy it. She had no complaints

concerning Mr. Pearmund and described him as “very intelligent,

professional, caring and passionate about the Virginia wine

industry.”

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46. Ms. Holley Green was called as a rebuttal witness by

the Applicant and stated that she owns a professional landscape

company and handles design, installation and maintenance for

both residential and commercial properties. She was contacted

in May of 2016 by Mr. Pearmund for a consultation concerning the

reestablishment of the formal gardens at Effingham Manor and

creation of an appropriate landscape that suited the property as

a winery. According to her, there were several specific

concerns he wanted addressed, one was to restore the gardens, as

history was very important to him, and the other was to ensure

that the neighborhood was buffered and visually pleasing to the

neighbors. Mr. Pearmund expressed a desire to buffer the

operation to minimize or negate any impact visually or audibly

that may be caused by activities on the Subject Property. Ms.

Green gave an example of a border planting on the edge of the

property along Trotters Ridge Place that will shield vehicular

headlights year-round from affecting the neighbors.

47. Specifically, Ms. Green’s company planted about 10

large 2.5- to 3-inch caliber Red Sunset Maples for fall; and

under that, they planted 18 Forsythia for spring and 12 Viburnum

for summer, which will create a barrier between the lower limbs

of the Maples and the ground level and also create a tall

buffer. The Viburnums will be 8- to 10-feet tall and the Maples

will be 55 feet, which will eventually create a wall there and

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will buffer the Winery parking lot from the road. She described

this as a “large investment.” Ms. Green also described some

natural berms along the road that would create a noise abatement

such as a hillside on the left between the road and the winery

and existing evergreen trees and scrub bore on the exit side of

the Winery, which would act as a buffer from vehicles exiting

the property.

48. Mr. Chris Pearmund, managing member of Effingham

Manor, LLC, stated that in 2015 he was approached to purchase

and develop the Subject Property as the potential location of a

Virginia farm winery. Mr. Pearmund conducted extensive due

diligence before purchasing this property in order to confirm

that the property was suitable for a farm winery, that the

zoning permitted a farm winery by-right, that the Prince William

County Comprehensive Plan identified the potential use of the

Manor House for weddings and events, that the property was not

restricted by the covenants of the agricultural subdivision, and

that Prince William County approved a Special Use Permit (SUP)

in 2007 that allowed large scale events with outdoor amplified

music.

49. Mr. Pearmund stated that relying on these findings, in

2015 he purchased the Subject Property and subsequently invested

in restoration of the Manor House and the historic landscapes,

as well as transforming the Manor House and its grounds into a

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functional venue for weddings and events (see App. Exs. Binder,

Tab 16, Exhibit 8). He also commenced the design and

construction of the Winery, which was completed in March 2016.

As of the date of the ABC hearing, the budget for the entire

project, including restoration of the Manor House and its

grounds, was in excess of $3 million. He was successful in

obtaining all of the required State and local permits concerning

the occupancy of the property.

50. Mr. Pearmund further stated that he is committed to

working with the surrounding community and that the activities

on the Subject Property will not substantially interfere with

the usual quietude and tranquility of the area. He explained

that he has 30 years of professional experience working in the

alcoholic beverage industry, including serving as an expert

consultant to establish 16 wineries and serving as managing

member to four of such wineries. He has also served as Chairman

of the Greater Fauquier Chamber of Commerce. He stressed that

the Winery at Effingham will function as an upscale venue that

will integrate into the community without adverse impact just as

his other operations, namely, Pearmund Cellars, Vint Hill Craft

Winery, and the Winery at La Grange have done.

51. According to Mr. Pearmund, there are approximately 20

houses within 0.5 miles of the Subject Property. By comparison,

there are approximately 40 houses within 0.5 miles of the Winery

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at La Grange; 80 houses within 0.5 miles of Pearmund Cellars;

and 200 houses within 0.5 miles of the Vint Hill Craft Winery.

There have been no complaints from any of the neighbors from

these three other wineries. Mr. Pearmund also testified about

the efforts he has made to communicate with the Effingham

community concerning this project, including notifications on

the Effingham Homeowners Association website with his contact

information, hosting community information meetings about the

Winery, and invitations to participate in the ownership of the

Winery. Finally, he stated that he has made extensive efforts,

which have cost him large amounts of money, to ensure that the

operation of the Winery will not have a negative impact on the

community.

52. Special Agent Katie Kelly testified concerning the

privileges of a Farm Winery - Class A License, the privileges of

a remote license and her interactions with Mr. Pearmund. In

late October 2015, she spoke with Mr. Pearmund, who requested

that a remote license be issued to Pearmund Cellars Farm Winery,

License No. 18986, located in Fauquier County. These remote

privileges would be exercised at the Effingham Manor location at

14325 Nokesville, Virginia, and entitled Pearmund Cellars to

exercise the full gambit of the retail privileges at that

location, including the sale and consumption of alcoholic

beverages. An investigation was conducted, and a remote license

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was issued to Pearmund Cellars Farm Winery, LLC on February 4,

2016. On September 9, 2016, an application for a Farm Winery -

Class A License was filed by Effingham Manor, LLC with the ABC

Board. Pearmund Cellars requested renewal of the annual remote

license, as it would expire on February 3, 2017. However, based

on the objections of the residents to this renewal, Mr. Pearmund

withdrew the remote request and decided to wait for the

application hearing on March 9 and 10, 2017.

53. Agent Kelly further stated that no ABC violations have

occurred on the Subject Property and noted that the license has

not yet been granted. She has had interactions with Mr.

Pearmund over the years in her professional capacity and stated

that she has had no problems with him or his operations other

than a warning issued to Pearmund Cellars over a paperwork error

involving a transfer of three cases of wine, which was corrected

immediately. She outlined the privileges of a Farm Winery -

Class A License and stated that Enforcement is neutral regarding

the granting of the license.

11. ANALYSIS AND CONCLUSIONS:

The following Objection is NOT SUBSTANTIATED:

1. The place to be occupied by the applicant is so located with respect to a residence and residential area that the operation of such place under the license will adversely affect real property values or substantially interfere with the usual quietude and

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tranquility of such residences and residential area. REF: Section 4.1-222 A.2.d. of the Code of Virginia.

It is provided in Section 4.1-222 A.2.d. that the Board may

refuse to grant any license if the place to be occupied by the

applicant:

Is so located with respect to any residence or residential area that the operation of such place under such license will adversely affect real property values or substantially interfere with the usual quietude and tranquility of such residence or residential area.

The objectors failed to demonstrate by a preponderance of

the evidence that the operation of the Winery under the license

would adversely affect real property values. The objectors

failed to present any evidence concerning the value of their

respective properties and the alleged adverse effect of the

proposed farm winery on those property values. Rather, the

Applicant presented persuasive evidence that the place to be

occupied will enhance the community. Mr. Pearmund stated that

he has invested a substantial sum of money in restoration of the

Manor House and the historic landscapes as well as transforming

the Manor House and its grounds into a functional venue for

weddings and events. He also commenced the design and

construction of the Winery, which was completed in March 2016.

As of the date of the ABC hearing, the budget for the entire

project, including restoration of the Manor House and its

grounds, was in excess of $3 million.

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Additionally, Mr. Scott Jacobs, owner of Jacobs & Company

and Vice President of the Nokesville Business Association,

stated that he has been a real estate agent in the Nokesville

area, which includes the Subject Property, for approximately 17

years. He has sold property in the Alexander Lakes Subdivision,

and, according to him, the Winery has been an attraction for

potential buyers who were “elated” to know that the Winery may

be coming to the community. Mr. Jacobs further stated that “all

Nokesvillians and surrounding people” he had encountered over

the last two years who have known about this project are

“absolutely excited about the opportunity to have this

tremendous opportunity come into the Nokesville community.”

Dr. Marvette Thomas resides directly across the street from

Effingham Manor on Lot 35 on Trotters Ridge Place. She

purchased her property in 2010, and at that time was informed

about the possibility of the Winery and Events Center coming to

the area. According to her, that was the “attractor” that

brought her to the area.

The objectors, likewise, failed to demonstrate by a

preponderance of the evidence that the operation of the Winery

under the license would substantially interfere with the usual

quietude and tranquility of the residential area. The evidence

presented was primarily speculation and opinion that the

proposed Winery may increase noise, traffic and visitation to

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the area in a negative way. Ms. Kimberly Dalrymple stated that

her biggest concern was the increased volume of visitors and

traffic that would potentially come into the private subdivision

if the ABC license is granted. Mr. Andy Dalrymple also

expressed concern over the increased amount of visitors, which,

in his view, would disturb the tranquility of the neighborhood.

He clarified that he was only speaking about what he expected to

happen from the use of the Effingham Manor facility and stated

that it was not yet being used. When asked on cross-examination

how that would affect the neighborhood, he stated, “I just don’t

know.”

Ms. Halle Raisigel expressed concern regarding the

increased amount of unknown visitors and traffic to the

neighborhood if the ABC license is granted, but stated candidly

that she did not know what Mr. Pearmund was going to do

concerning the operation of the winery if the license is

granted. Ms. Jane Fisher opined that if the ABC license is

granted, her property will not be attractive to potential buyers

due to all of the traffic, which will amount to a public freeway

next to their home. As to all of the ways the operation of the

Winery will affect her peace and tranquility, she stated: “The

Winery patrons will damage my property and be disrespectful;

they will litter my property; they will trespass on my property

to view my pond; I will not be able to get in and out of my

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driveway; there will be headlights shining into my home at

night; Winery patrons will be knocking on my door to ask for

directions; there will be problems walking dogs due to traffic,

and there will potentially be more crime.

These opinions, bare assertions and speculation are

insufficient to prove by preponderant evidence that operation of

the Winery under the license would substantially interfere with

the usual quietude and tranquility of the residential area.

Additionally, no interference with the usual quietude and

tranquility has been shown as the evidence demonstrated that the

area is not usually quiet and tranquil. The evidence

demonstrated that this Subdivision is a non-gated community open

to noisy commercial traffic. There is ongoing new home

construction on a number of undeveloped lots and routine loud

noises from Quantico. Mr. Jerry Jackness, who was the general

contractor for construction of Effingham Manor, stated that the

construction began in the winter of 2016 and took approximately

one year to complete. He was on the property for about seven

days per week and had the opportunity to observe the surrounding

parcels. According to him, he heard heavy equipment being

operated on the Ivers’ property including a bulldozer or

excavator and bobcat. He stated you could tell it was heavy

equipment as you could hear the ”beep, beep, beep” sound from

the backing up of the equipment and then you could hear it

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running. This would happen continuously for several days in a

row, and he heard it “a lot.”

Mr. Jackness further stated that while on this property,

he heard the firing of artillery shells at Quantico Marine Base

(“Quantico”), which was loud enough to make his trailer shake,

and he experienced this on a regular basis at least several days

per week. Additionally, he heard noise from a government type

of helicopter with huge propellers from Quantico, which was so

loud he could not engage in conversations. He described the

sound as being “in the air” and stated that it occurred at least

once per week. He also stated that the PA system at Quantico

was “very loud,” and it sounded like an “air raid.”

Based on this evidence, it cannot be concluded that the

residential area was quiet and tranquil; therefore, there can be

no substantial interference by operation of the Winery with the

usual quietude and tranquility of the residential area.

Finally, the Objectors’ contentions that the license should

be denied because the Winery is disturbing the quietude and

tranquility of the residential community through the use of the

private road and by infringing on the homeowners’ property

rights concerning the common area are rejected. It was

undisputed that the circuit court is the court of original

jurisdiction concerning the property rights at issue, and the

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case brought by the Plaintiffs was fully litigated in that

court.

As discussed herein, the circuit court found in favor of

the Applicant, Effingham Manor, LLC, on all counts, concluding

that: Plaintiff’s request for declaratory judgment and

injunction against Effingham Manor for its proposed use of Lot

27 was DENIED; Plaintiff’s request for declaratory judgment and

injunction against Effingham Manor for its proposed use of

Trotters Ridge was DENIED; Plaintiff’s request for the Court to

determine the validity of the RMA was DENIED; Plaintiff’s

request for judgment against Effingham Manor for unpaid HOA dues

as to Lot 27 was DENIED; Plaintiff’s request for judgment

against Effingham Manor for unpaid HOA dues as to Lot 23A was

DENIED, but Effingham Manor was ORDERED to pay the balance of

HOA dues owed for Lot 23A within 14 days of the Court’s entry of

the Final Order (see Gerald Dalrymple, et al. v. Effingham Farm

Homeowners Ass’n., Inc., et al., CL16-4025-00).

In the Hearing Officer’s view, the decision of the Prince

William County Circuit Court is dispositive as to these issues.

The Objectors have attempted to bring these property issues

before the ABC Board based on the argument that, by operating a

Winery on the Subject Property and using Trotter Ridge Place,

the Applicant is substantially interfering with the usual

quietude and tranquility of the residential area, and the

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license should be denied. As stated, supra, these arguments are

rejected. Based on this circuit court decision, there is no

impediment to the Winery occupying this property and utilizing

Trotter Ridge Place. Moreover, The Applicant is fully qualified

for a Farm Winery – Class A License. Significantly, Agent Kelly

had no problems with Pearmund Cellars operating under the remote

license at the Applicant’s location or any other problems

dealing with Mr. Pearmund or his operations, except for one

warning for a paperwork error.

For all of the reasons discussed herein, Objection 1 is not

substantiated.

With regard to Objections 2 and 4, Counsel for the

objectors was in agreement that no evidence was presented to

substantiate these objections, and, therefore, they should be

dismissed.

With regard to Objections 3, 5 and 6, no evidence was

presented to substantiate these objections, and they were

dismissed by the Hearing Officer at the conclusion of the

hearing.7

Accordingly, the following DECISION is entered.

7 It is noted that on May 22, 2017, six (6) weeks after the record closed, Counsel for the Objectors made a Motion to Reopen the Record, which was opposed by Counsel for the Applicant. The motion to reopen the record is denied.

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DECISION:

(Farm Winery – Class A)

That the license be, and it hereby is, granted with all

privileges appurtenant thereto.

Entered this 22nd day of June 2017.

Clara A. Williamson Administrative Hearing Officer