There was a moment this summer when it looked like the wineries of the Old Mission Peninsula had won.
The 11 wineries that dot the peninsula had sued Peninsula Township in 2020 over the patchwork of zoning regulations that kept them from hosting weddings and jazz brunches and Yoga in the Vines alongside the tasting room offerings that already drew thousands of tourists every season.
The township’s zoning ordinances barred some wineries from selling bumper stickers and all of them from playing music with amplified instruments. They tied the number of guests wineries were allowed at one time to how many tons of grapes they had grown or purchased on the peninsula the previous year. They prevented the wineries from staying open past 9:30 pm
In June, a federal judge issued a summary judgment in their favor on most counts, leaving a few outstanding issues for trial.
And then the wineries’ case went south.
First, the Sixth Circuit Court of Appeals decided that a citizens advocacy group called Protect the Peninsula could join the case to make the argument that weddings and loud music and more traffic on the one road that leads onto and off of the peninsula would hurt their property. values.
Then it overturned an injunction from US District Court Judge Paul Maloney, in effect allowing the township to continue enforcing the rules Maloney had said did not pass muster.
And now the township is proposing a new and far more restrictive zoning ordinance. Township Supervisor Isaiah Wunsch says it’s “much more defensive and seeks to protect the township’s interests against further litigation.” Joseph Infante, an attorney for the wineries, says it looks like retaliation and will allow only the wildly rich to open new wineries on the peninsula in the future.
Township officials argue that they’re trying to preserve the character of Old Mission Peninsula, with its multi-million-dollar homes skirting the shore of Lake Michigan and fields of grape vines and cherry orchards on the hills above.
Allowing wineries to operate on the peninsula “was something that the community was willing to embrace to the extent that it would help provide additional sources of revenue for the local farmers,” said William Fahey, an Okemos attorney representing the township. But they wanted to be sure that that was the purpose of it. The purpose of it was not to create a new Knott’s Berry Farm.”
But wineries say it’s their success that helps to preserve the agricultural character of the peninsula and that they lose tens of thousands of dollars every time they tell a bride and groom to look elsewhere.
“The land is expensive and goofy on this peninsula,” said Chris Baldyga, the owner of 2 Lads Winery and president of the winery group.
The future of agriculture there, he said, isn’t just growing but processing and selling directly to consumers, giving the sort of experience that lets them fall in love with the peninsula and the wine that’s made there.
“If it’s just wine bottles competing on a shelf, there’s no love there,” he said.
In some ways, the lawsuit is an escalation of an argument that has been going on for decades.
The Old Mission Peninsula grew apples in the 19th century, cherries and vacation homes in the 20th. Wineries were a late addition.
Ed O’Keefe, a former Federal Bureau of Narcotics agent who went on to make a small fortune operating and supplying nursing homes, opened the first, Chateau Grand Traverse, in 1974.
His critics called it “O’Keefe’s folly,” and it took him a dozen years to turn a profit. But he made a winery work where few thought it could.
In the early 1990s, others followed: Bowers Harbor Vineyards, Peninsula Cellars, Chateau Chantal.
But, even early on, there was a tension between allowing wineries as a way to preserve the peninsula’s agricultural spaces and a sense that wineries were themselves a disruptive and too-commercial use of the land.
In 2000, the township board passed an ordinance that would have allowed farms with at least 15 acres to operate tasting rooms and sell wine directly to consumers. The idea was that the additional revenue would protect farmland from commercial development.
“It was so counter to the vision and the belief of the township that a referendum ensued,” said John Wunsch, a longtime member of Protect the Peninsula who grew up on Old Mission and owns a small cherry farm there, “and it was soundly defeated.” that language.”
What followed that defeat – the vote was 1,533 to 983 – was a negotiation. Wunch and others worked with winery representatives and ultimately came up with an ordinance allowing farm processing operations to open tasting rooms and sell wine by the glass and bottle, but with more “guardrails” built in, he said.
“We negotiated for like six or eight months. I mean hard negotiations, and we came up with really a great balance.”
With the lawsuit, that balance is coming under attack, Wunsch said.
“It destroys something we had.”
But that balance was negotiated without the input of most of the present winery owners, and they’re now arguing that some of its provisions violate the First Amendment, the US Constitution’s Commerce Clause, the state’s Liquor Control Code and common sense.
Like the rule that wineries can serve only Old Mission Peninsula wines in their tasting rooms or the requirement that some wineries provide their guests with materials promoting agriculture on the peninsula or the prohibition that prevents other wineries from selling T-shirts and coffee cups and bumper stickers .
“All the wineries have a different set of rules under which they can play,” said Baldyga, “different requirements, some that were onerous, some that were unreasonable, others that seem to have just arbitrary numbers pulled out of the sky for a standard. .”
For more than a decade, winery owners have been trying to negotiate rules that were clearer and more uniform and allowed them a bit more latitude, he said.
At that time, they’ve dealt with five township planners, “and, with every planner, you’re starting from zero,” he said.
“After 11 years of just going around and around and getting absolutely nowhere with the township, we realized that the only way to get them to move was to get help from a judge.”
2 Lads occupies a hilltop on the sunrise side of the peninsula. From the tasting room, a wall of windows looks out over the east arm of Grand Traverse Bay.
Baldyga would like to be able to hold weddings there, maybe serve something more than cheese and crackers so that guests might stay longer. Some of the other winery owners want those things, too, he said. Some want more latitude in the wines they can serve and more ability to be creative with their space. And they’re willing to do those things in a way that minimizes the impact on their neighbors, he said.
“I’ve heard it thrown at us all the time that we’re going to be open until 2 am, doing rock concerts in the vines and all these things,” he said, sitting behind his desk at 2 Lads amid the clutter that accumulates during the harvest season, “and we have consistently said, ‘You know, we fully welcome and entertain having a great noise ordinance in place.'”
‘Pig in a Parlor’
But compromise has been hard to come by. The wineries and the township went into mediation last year and, by mid-September, had reached a tentative settlement.
Except they didn’t. When it came up for a vote, many residents spoke out against it, evoking clogged roads and drunk drivers and ruined views. The township board voted against it unanimously.
Isaiah Wunsch says board members weren’t present when the attorneys developed the settlement terms and that he voted against it “because I did not feel that it protected either the fiduciary interests of taxpayers or the health, safety and welfare of residents.”
Judge Maloney still ordered the township to pay the wineries’ legal fees for the negotiations.
“The issue is ‘a pig in the parlor,'” said TJ Andrews, an attorney representing Protect the Peninsula. She was quoting Village of Euclid v. Ambler Realty, the 1926 US Supreme Court case that laid the foundation of modern municipal zoning laws.
“There’s nothing wrong with events and restaurants and late nights,” she continued. “It’s where they take place.”
And, even if the wineries have been allowed to open tasting rooms, they’re still in an agricultural district, she said.
Peninsula Township takes the preservation of its farmland seriously. In 1994, township voters approved a millage that would raise millions to buy the development rights on agricultural land. Alongside other programs, it now protects a full third of the peninsula and half of the agricultural zone from development. Voters renewed it just this summer.
“The green areas are properties that have permanent conservation easements,” said Isaiah Wunsch, pointing to a map on the peninsula leaning against the wall of his township office. Swaths of green covered much of the center. “Light green are all farms that are not able to be developed into residential, so you can see that we have pretty bold ambitions.”
‘You need to develop’
After the Township Board voted down the settlement proposal, it started a Citizens’ Agricultural Advisory Committee to work on zoning changes. It held three seats for wineries. The wineries did not participate.
The result of the committee’s work is a propose zoning ordinance that would dramatically increase the minimum acreage required to have a winery with a tasting room, push wine processing indoors in a way that wineries say doesn’t match the realities of production, reduce but not Eliminate the requirement that any wine served come mostly from Old Mission Peninsula grapes and get rid of a zoning classification – winery chateau – that allowed wineries to have guest rooms and host a broader range of events.
The goal, according to a memo from the township’s Director of Planning Jenn Cram, is to make the zoning legally defensible and “equitable and even-handed for all agricultural operators.”
For Marty Lagina, the message is clear: “You need to develop before they take away everything.”
Lagina is the star of the reality TV series “The Curse of Oak Island,” which chronicles the work of treasure hunters on an island off Nova Scotia.
He’s also the founder of Mari Vineyards. He says he and his family have accumulated enough land on the peninsula for four wineries and spent millions preparing them.
Then, in July, the township essentially passed a moratorium on new wineries. Then it changed the rules.
“And so people like us that had been relying on the underlying law for 20-some years had our rights taken away in one day,” he said.
The consequence, he said, will be “exactly what they don’t want.”
“You look at the land and say, ‘Well, I guess I don’t have the ability to do what I wanted to do anymore.’ So what do you do? Sell it, and most likely, it will get developed into houses.”
The wineries, the township and Protect the Peninsula will meet again in federal court next week and likely learn something about how much Maloney’s earlier ruling in the wineries favor is back in play.
Isaiah Wunsch said he still believes there’s room for compromise, but “I don’t know that there’s room for compromise in the adversarial context of the federal lawsuit.”