Ed and Cheri Williams still want to open a wine tasting room in their garage. The zoning doesn’t permit it. The licensing requirements aren’t met. The neighbors have objected for years. The application has never been complete. And yet the proposal won’t die—because no one at the Town of Chatham seems willing to kill it.
The Williams own an Architectural Digest-aspirational property in Chatham’s RL-2 district—Rural Land 2, a zoning classification whose stated purpose is “to preserve and protect, for the benefit of the town as a whole, the basically rural-agricultural character of the Town.” What they want is to convert their garage into a wine tasting room for Fox Hill Estate & Vineyard. Four hundred grapevines. Fewer than 160 bottles of annual production. And according to their prior submissions, not a drop of it made on the premises—the wine was produced off-site by a contract manufacturer. Or so the town was told, for years, until the story suddenly changed at a public hearing last week.
This isn’t the Williams’ first attempt to monetize the pastoral. Years ago, they floated a wedding venue—think Real Housewives meets Bridezilla, as one local put it—complete with Facebook posts and a now-defunct website. The neighbors objected vigorously. The town said no. During that period, the Williams planted their 400 grapevines and put the house on the market. Two years later, the house came off the market and the Williams came back with a fresh pitch: not weddings, but wine. Same garage. Same neighbors. Same zoning code that doesn’t permit commercial retail in residential districts. But hope springs eternal when you can afford lawyers and engineers willing to submit incomplete applications in perpetuity.
The legal deficiencies are not subtle. Wine tasting rooms don’t appear among the permitted or special permit uses for RL-2. Approval would require a use variance—the hardest approval to obtain under New York law. The applicant must prove “unnecessary hardship” by demonstrating that no reasonable return can be realized from any permitted use, that the hardship is unique to the property, that the variance won’t alter the neighborhood’s essential character, and that the hardship wasn’t self-created. The Williams purchased this property as a residence. It was zoned RL-2 when they signed the papers. They were on constructive notice of every applicable restriction. New York courts have held, with admirable consistency, that self-created hardship is fatal to a use variance application. This should have been a short conversation.
But wait, the Williams might say—we’re not asking for a use variance. We’re a farm. Agriculture is permitted. The tasting room is just an accessory use.
Understanding what “accessory use” actually explains why this argument fails. In Chatham—as in municipalities across New York—an accessory use must meet four specific criteria. It must be incidental and subordinate to the principal use. It must be customarily found in connection with that principal use. It must be located on the same lot. And it must serve the owners, occupants, employees, or visitors of the principal use. The distinction matters because accessory uses are regulated differently than principal uses—they typically don’t require the separate permits or approvals that principal uses demand. If something qualifies as accessory, it may be allowed automatically in a zone where it would otherwise be prohibited.
Common examples illustrate the point. A residential garage storing the homeowner’s vehicles is accessory to the residence. A barn storing farm equipment and harvested crops is accessory to farming. A farm stand selling on-site produce (wine is not produce) can be accessory to agriculture. What generally doesn’t qualify: uses generating their own customer traffic independent of the principal use, separate commercial enterprises available to the general public, or uses not customarily associated with the principal use historically. The tests are strict. New York courts have held that an accessory use must be “well established” and “customary”—not merely logical or efficient, but traditionally associated with the principal use. In one case, a court ruled that using a department store roof as a helicopter landing site, though efficient for transporting executives, was not sufficiently “customary” as an accessory to retail business.
For a wine tasting room on a residential property in RL-2, the analysis is straightforward. A tasting room open to the public is not subordinate to residential use—it displaces it. It’s not customarily found on residential properties—it’s found at commercial wineries. It doesn’t serve the occupants of the residence—it exists to attract and serve the public. Even if 400 grapevines constitute a farm operation (they don’t), and even if the Williams qualify for farm winery status (they can’t, per state law), a commercial tasting room serving the general public fails every element of the accessory use test.
The State of New York has clear rules about who gets to operate a tasting room. Under the Alcoholic Beverage Control Law, only licensed wineries and farm wineries may conduct wine tastings. To qualify as a farm winery, you must manufacture at least 50 gallons of wine per year—roughly 250 bottles—at your licensed facility. The State Liquor Authority is unambiguous: “You cannot rely on a contract manufacturer to produce the annual production minimum for you.” The Williams, by their own admission, produce about 150 bottles from their 400 vines. That’s 60 percent below the minimum. The law also requires that farm wineries use at least 75 percent New York State-grown fruit and be located on an actual farm. A residential property with decorative grapevines is not a farm within the meaning of the statute—particularly when, according to years of submissions to the town, the wine wasn’t even being made there.
Then there’s the agricultural district question, which should have been dispositive from the start. The Williams have claimed protections under Agriculture and Markets Law—the state statute that shields legitimate farm operations from local zoning interference. Those protections apply exclusively to properties located within certified agricultural districts. The Williams’ property is not in one. The State Department of Agriculture and Markets confirmed this directly. The Town’s own Building Inspector, Kent Pratt, admitted he was unaware of this fact when he made his initial determination. The entire agricultural defense—the notion that the town’s hands are tied, that farming must be permitted, that a tasting room is merely incidental to a protected agricultural use—evaporates the moment you check the county tax records.
None of which has stopped the application from proceeding.
Last December, when residents raised these legal questions at a Zoning Board of Appeals meeting, Chair Dan Persing scheduled a public hearing. Attorney Mitchell Khosrova, representing neighbor Sue Tanner, objected immediately. This was a matter of law, he told the board—not a matter for public deliberation. A public hearing made no sense. The threshold question was whether the application was legally cognizable in the first instance, and that question had a legal answer that didn’t require community input.
Persing scheduled the hearing anyway. At first blush, this might have seemed reasonable—even admirable. Democracy in action. Let everyone have their say. Except Khosrova was right. This wasn’t a matter suited for democratic deliberation. This was a matter of law. The threshold question before the board was not public sentiment but a question with a legal answer: Can a garage be used as an accessory structure for commercial purposes in an RL-2 district? Does the proposal meet the statutory definition of accessory use? Is a wine tasting room—which requires state licensing, invites the public onto the premises to sell alcohol, and generates commercial traffic—compatible with residential zoning?
These are legal questions. They have legal answers. You find those answers by reading the zoning code, consulting the relevant statutes, and applying established precedent. You do not find them by holding a public hearing and counting hands. A public hearing is appropriate when a board needs to assess community impact, gather testimony about site-specific conditions, or weigh competing interests within its discretion. It is not appropriate when the question is whether the application is legally cognizable in the first instance.
You might forgive a country volunteer board member for not recognizing this distinction. Local zoning boards are staffed by well-meaning citizens, not constitutional scholars. If an untrained volunteer thought a public hearing was the inclusive way to handle a controversial application, you could chalk it up to an abundance of caution. But Dan Persing is not a country volunteer fumbling through unfamiliar territory. Dan Persing is a practicing attorney who serves as counsel to the New York State Department of Health and maintains a private practice at the Herzog Law Firm. He’s also a faculty member at Albany Law School with a solid reputation in tort claims and regulatory law. He is precisely the sort of person who would know that questions of law are not resolved by referendum, that public hearings serve a specific statutory purpose, and that scheduling one to address threshold legal deficiencies is not inclusive democracy—it’s a procedural error that creates the false impression that approval is a live possibility when the law says otherwise.
He knew this. He had to have known this. Khosrova had just told him as much, standing at the lectern in a municipal meeting room in early December. And yet Persing scheduled the hearing anyway. His decision put the cart so far before the horse that the horse was left grazing in another pasture entirely. It forced residents to prepare testimony, retain counsel, and spend their evenings at public meetings arguing about an application that should have been rejected on its face. And it gave the Williams exactly what applicants in these situations always want: more time, more process, more opportunities to wear down the opposition through sheer procedural attrition.
The hearing, when it convened on January 22, did produce one revelation—though not the kind that inspires confidence in the application’s integrity. For the first time, the board and the public learned from the Williams’ engineer that wine is being made in the garage itself. This directly contradicted what the board had been told in all prior submissions: that the wine was made off-site by a contract manufacturer. The timing of this disclosure is revealing. The State Liquor Authority requires that farm wineries manufacture wine at their licensed facility—you cannot rely on a contract manufacturer to meet the annual production minimum. For years, the Williams had described their wine as contract-manufactured. But at the January 22 hearing, facing questions about licensing requirements, the story suddenly changed. Now, apparently, the garage had been serving as a production cellar all along. The explanation for years of unreported wine production in a residential garage—production that neither the neighbors, nor the town, nor apparently the snowblower knew about—has yet to be offered. One wonders where they keep the snowblower. What is clear is that somewhere between the December meeting and the January hearing, a closer look at state licensing law made on-site production significantly more advantageous to the Williams’ case. And so the facts, as presented to the board, adjusted accordingly.
That January 22 hearing concerned a narrow question: whether a garage in a residentially zoned neighborhood may be used as an accessory structure for commercial purposes. Under Chatham’s code, a tasting room open to the public constitutes a commercial retail use. People come, sample products, and purchase. This generates traffic, requires parking, involves on-site consumption of alcohol, and transforms a residential accessory structure into something fundamentally different. The home occupation provisions offer no refuge. Those rules require that such uses be “clearly subordinate in space utilization and intensity” to the residential use, with a “low number of, if any daily client visits.” They prohibit exterior signage and require that traffic not exceed what’s normally expected in the neighborhood. A tasting room exists to attract visitors. That is its entire purpose. It fails every one of these tests.
The board knew in advance that Ed Williams’ attorney, Lawrence Howard, would be unavailable on January 22. They scheduled the hearing anyway. When a zoning board knows that one party’s attorney will be absent, the proper procedure is straightforward: don’t schedule a hearing for that date, or adjourn it to a time when counsel can attend. Proceeding when you know an attorney won’t be available raises due process concerns and creates an appearance of partiality.
At that January 22 hearing, Khosrova asked Persing directly: had there been any ex parte discussion between him and Lawrence Howard? Persing said quickly there had not been. And there’s no reason to doubt him. But what went unmentioned in that exchange is that both Persing and Howard are faculty members at Albany Law School. It’s a connection that doesn’t prove anything—attorneys in the same legal community often know each other, teach at the same institutions, cross paths professionally. But in the context of everything else—the initial public hearing that shouldn’t have been scheduled, the accommodation of Howard’s vacation schedule, the refusal to resolve threshold legal questions—it’s a detail that adds texture to the pattern.
While Williams himself said nothing at the January 22 hearing, and while Howard sunned himself elsewhere, the Williams produced their engineer, who offered legal arguments he wasn’t qualified to make and introduced the claim about on-site wine production that no one had heard before and that contradicted everything previously submitted to the board. Rather than resolve the threshold legal question the hearing was ostensibly called to address, Persing extended it—ostensibly to accommodate Howard’s return and allow for more town feedback. This time for another ten days, ostensibly to allow for additional public comments. But when asked to provide public notice of this second continuation, he refused.
So now we have not just a public hearing that shouldn’t have been held in the first place—a hearing Khosrova objected to in December on the grounds that legal questions don’t require public input—but a hearing being extended, for more public input, on a question of law. More comments. On an application that has generated years of public opposition. On a legal question—whether a garage can serve as an accessory structure for commercial purposes—that does not turn on the volume of public sentiment but on the plain language of the zoning code.
Khosrova raised this in December. The law is clear. The community has spoken. What exactly does Persing expect to learn in ten more days? And why, if he wants more public input, would he refuse to notify the public that the hearing is continuing? It begs the question: why?
The New York Open Meetings Law requires that notice of public meetings be posted conspicuously at least 72 hours in advance and provided to the news media. For public hearings on special use permit applications, Town Law requires publication at least five days before the hearing. When a board continues a hearing to a new date, the statutory notice requirements attach anew. Ten days is ample time to comply. The failure to provide notice is either an oversight or a choice, and neither explanation cures the defect. Persing’s refusal to provide notice when asked suggests it’s the latter.
Under Public Officers Law § 107, any action taken at an improperly noticed meeting is voidable. If the board receives testimony, admits evidence, or conducts deliberations at the next session—the one for which no notice has been given—that action will be subject to challenge. An Article 78 proceeding could result in annulment and remand. The Williams’ application, already legally deficient on multiple independent grounds, will have acquired yet another vulnerability.
The pattern is hard to ignore. At every juncture where the board might have said no—where the legal deficiencies were clear, where the application was incomplete, where the threshold questions should have been resolved before proceeding—Persing has found a way to keep the process alive. He scheduled a public hearing on a question of law. He held that hearing knowing the applicant’s attorney would be absent. He accepted new factual claims that contradicted years of prior submissions without demanding explanation or documentation. He extended the hearing once. Then he extended it again—to solicit more comments on a question that doesn’t require comments—and refused to provide notice for the next session. Each decision, taken individually, might be explained as procedural caution, deference to process, or simple error. Taken together, they describe something else: a board chair who, for reasons not yet apparent, seems invested in giving this application every possible chance to survive.
The neighbors have done everything right. They’ve attended meetings. They’ve submitted written comments. They’ve raised legal objections, environmental concerns, and procedural deficiencies. They’ve pointed out that the property sits uphill from unmapped wetlands, a stream, and a shared aquifer. That vineyard operations in the humid Northeast require heavy fungicide and pesticide applications—chemicals like mancozeb, imidacloprid, and captan that run off into soil, streams, and groundwater. That the EPA has proposed canceling mancozeb in grapes entirely due to worker safety concerns. That there is no environmental impact study. That the application’s Short Environmental Assessment Form contains inaccuracies. That the town’s consulting engineer cataloged a litany of deficiencies including no responses to Planning Board comments, no responses to neighbor concerns, inadequate site plans, and no proper wetland mapping.
Norm Levine, a concerned citizen, has seen this before. Special use permits in rural communities notoriously lack teeth. Applicants claim they’ll limit events, cap attendance, restrict hours—and then the profitable opportunities arise and the limits evaporate. Who shuts down the seventh event when the permit allows only six? The answer is no one. No one ever shuts down the seventh event. Meanwhile, wine tastings elsewhere have required dedicated police presence on weekends. One Long Island venue, Vineyard 48, shut its doors amid an emergency suspension of its liquor license after it became a focal point of police attention—officers forced to dedicate resources every weekend to monitor a single establishment. Rural communities cannot afford that kind of diversion.
The Williams, when asked about their plans, have offered responses that don’t track with their application. Their filing with the town says they’ll cap the vineyard at 800 vines. Their response to questions for this series said 5,000 vines were in the offing. That’s not a modest expansion—it’s a tenfold increase from current operations, a yield requiring processing facilities far larger than any residential garage. The inconsistency has not been explained. The environmental implications have not been addressed. The neighbors have not been consulted. And yet the application proceeds, meeting after meeting, year after year, deficiency after deficiency—a zombie proposal that refuses to die because no one on the board will drive a stake through it.
Part of the answer is structural. Local government, even in small towns, has a hard time rejecting applications outright. Applicants hire professionals. Engineers submit reports. Lawyers write letters. Forms get filed, however incompletely, and the process acquires momentum. Boards find it easier to ask for more information, to schedule another hearing, to extend the timeline, than to render the obvious verdict. The path of least resistance is continuation, not conclusion.
But structure doesn’t explain everything. Structure doesn’t explain why a board chaired by an experienced attorney—one who teaches at Albany Law School alongside the applicant’s attorney—would schedule a public hearing on a question of law that another attorney told him didn’t require public input. Structure doesn’t explain why that same board chair would hold the hearing knowing one party’s counsel would be absent, then extend it again to gather comments on a question that doesn’t require comments, while refusing to provide notice for the continuation. Structure doesn’t explain the persistent unwillingness to confront the threshold deficiencies that should have ended this matter long ago.
The Williams have no farm winery license. They can’t meet the production minimums. They’re not in an agricultural district. The zoning doesn’t permit commercial retail uses. The application has never been complete. The variance requirements cannot be met. The town’s own law is explicit. So why does this project still breathe?
The question before the Chatham ZBA is not complicated. Can a garage in a residential neighborhood be converted into a commercial wine tasting room? The zoning says no. The licensing law says no. The agricultural district rules offer no protection. The home occupation standards aren’t satisfied. The application has never been complete. The variance requirements cannot be met. These are not close calls. They are not matters of interpretation requiring public input and community deliberation. They are questions of law, and the law has answered them. What remains is for someone in authority to acknowledge as much—to stop treating a legal impossibility as though it were merely a controversial proposal, to stop holding hearings on questions that don’t require hearings, to stop extending deadlines and accommodating attorneys and failing to post notices for meetings that shouldn’t be happening in the first place.
The public hearing continues—not with another meeting, but with a ten-day window during which people can submit written comments to the town. The residents of Bashford Road will keep writing, keep submitting comments, keep raising objections that ought to have been dispositive years ago. They’ll do this because it’s their neighborhood, their aquifer, their dirt roads that will bear the traffic, their property values that will absorb the impact. They’ll do it because participating in local government is what citizens do, even when local government doesn’t seem particularly interested in listening.
And the Williams will keep submitting applications, keep hiring engineers, keep planting grapevines and dreaming of five thousand more. They’ll do this because no one has told them to stop—because persistence, in the face of a board that won’t say no, is its own reward.
The garage question has an answer. It’s had an answer from the beginning. What it doesn’t have is a board willing to give it. Why won’t they kill it?
Other parts of this series:
Part One: The Grapes of Wrath
Part Two: The War of the Rosé
Part Three: Vineyard Tasting Room Proposal Faces Legal Hurdles in Chatham
