Wineries of Mission Peninsula (WOMP) Lawsuit: Interview with WOMP's attorney Joseph Infante
The Old Mission Peninsula is just 19 miles long, never more than 3 miles wide, jutting north into Grand Traverse Bay in Northwest Michigan. There’s one main road, Center Road, otherwise known as M-37. This unique geography creates a lake effect protecting crops from the worst of Michigan’s winter, and orchards (mostly apples and cherries) have long been the primary landholders on the Mission.
The region has been growing grapes since the mid 1970’s, starting with Chateau Grand Traverse founder Edward O’Keefe. By 1987, the region received American Viticulture Area (AVA) designation and there are now 11 wineries. The area is internationally recognized for its Riesling, with Cabernet Franc, Pinot Noir, and Alsatian-type whites also highly praised. Despite their success, the winery footprint is still very small. Wineries hold a mere 10% of the land on the Mission.
What the wineries have accomplished is amazing, and even more so when one considers the burdens placed upon them by Peninsula Township, the local governing entity. Amongst the many regulations imposed, regulations unlike any we have seen imposed on a wine region, farm wineries are forbidden to:
· use anything but fruit grown on the Mission
· stay open past 9PM
· open a restaurant
· have live music
· host a wedding or most events
· sell a T-shirt with the winery logo on it
And even if a winery’s event is approved, the Township devised a clever trap by making the winery buy a ton (a literal ton, not figurative) of local fruit per meeting attendee. Given the limited amount of land devoted to grapes on the Mission, this effectively boxes out wineries from hosting approved events, since fruit in that quantity doesn’t exist to be purchased.
After years of trying to work with the Township with no results despite the Township’s attorney agreeing that many of the regulations were illegal, the 11 wineries filed a lawsuit in federal court in October 2020. The lawsuit is pending as of publication.
The Wineries of Old Mission Peninsula (WOMP) are represented by Joseph Infante. We wanted to know more because this story isn’t receiving much press in traditional wine media. So, we asked. We sat down via Zoom with Mr. Infante to discuss the litigation.
We also reached out via email to Gregory M. Meihn, attorney for Peninsula Township, asking him for an interview. He did not acknowledge our email. The offer is still open.
Please note the interview has been edited for clarity and flow. Mr. Infante refers to the Old Mission Peninsula as “the Mission” and the governing entity Peninsula Township as “the Township” and we will do the same here.
The lawsuit mentions the wineries have tried for over a year to resolve this outside of court. Was there a specific moment that made the wineries realize court was the only option?
Actually, it has been over 13 years. In 2008, the wineries published a “Winery Bill of Rights” that came out of a meeting with Peninsula Township over amending the regulations. The township asked the wineries what they wanted and the wineries came up with this. If you look at this Bill of Rights, it is the same thing we are looking for now. The wineries are farmers, they want to maintain the agriculture and the land, but the township needs to allow them to operate a little differently and not be so restrictive. Restaurants, larger events, merchandise, things like that. That was 13 years ago, and nothing has really changed. (Editor's Note: The Bill of Rights is attached in PDF form at this end of this article.)
My involvement started in 2019 when one of the wineries hired me to amend their special use permit (SUP), and I went to a Township meeting with them. Before the meeting, I read the zoning ordinances, and I was just amazed at how insane they were. I am an alcohol regulatory lawyer, so I know the federal and state rules, and who controls what. We had some conversations related to the SUP and other issues, and there ended up being some memos going back and forth between me and the lawyer for the Township. The first memo from their lawyer said “you are wrong; our ordinances are perfectly fine.” I wrote back with a 13 page memo correcting that. Around August of 2019 he responded, conceding many of our points, and agreed the Township needed to change many of the regulations. We left it after that as understanding there were problems, but we were going to work on them together.
The wineries and the Township then put together a committee to look at the regulations, but around February of 2020 it became very clear they had no interest in making the changes they said they were going to make. With the pandemic, things slowed down a bit, but in September of 2020 they produced a proposed rewrite of the ordinance with none of the changes we discussed. That was the moment we realized we needed to take this to the next level.
Some of these restrictions seem, for lack of a better term, so petty. A great example is farm wineries being forbidden to sell a coffee cup or t-shirt with the winery name or logo, but they can sell a logoed cherry pitter or apple peeler (the two other fruit crops grown on the Mission). What is the professed justification for these restrictions?
There are three different types of wineries on the Mission. There are the chateaus, the farm processing winery, and the remote tasting rooms. The chateaus can sell shirts and cups, but the others can’t. Why? No one knows. There is no reason for the why. Maybe they think these wineries are going to turn themselves into Wal-Mart in their little 5,000 square foot building, but selling logoed merchandise is not something you get rich doing. It is advertising so people can go home and remember your winery and tell others about it.
You don’t invest the millions of dollars in a winery like these folks do to make selling shirts your primary business. Part of this is the Township just doesn’t understand what the wine business is.
It also appears the Township is sending an overtly hostile signal here. When they say you can sell a cherry pitter or apple peeler with the winery logo on it, but not a cup or shirt, they are sending a clear message that says “apples and cherries are our preferred type of business on the Mission, and wineries aren’t.”
I would agree with that. I think their preferred business on the Mission is a farm, and only a farm. You can be a winery, but you got to be a farm. If you are growing grapes, and selling wine into distribution, they are ok with that. But once you become more of what everyone expects a winery to be these days, which is a tasting room, selling bottles to go, wine pairings, dinner, they don’t like that.
What explains the hostility here?
I think it is just pure protectionism. It is the typical NIMBY (Editor’s note: NIMBY means “not in my back yard”) attitude that doesn’t want anything to change. But what is odd is that when it comes to acreage, the wineries and vineyards have just 10% of property on the Mission. But I also think the wineries are the largest tax base as well.
The restrictions placed on the wineries appear unlike any other imposed on an American Viticultural Area (AVA) in this country. Typically, those regulations are defined by the federal Tax and Trade Bureau and done at the request of the wineries, and a local governing body mostly stays out of it. Sometimes, the states provide additional regulations. Here we have a local township board imposing the regulations. Are you aware of any AVA that deals with this level of oversight from a local government?
I am not. And this is part of the problem, because you can literally go across West Bay into Leelanau Peninsula. The wineries there have none of these restrictions, and they have a competitive advantage being just 15 minutes away. In Southwest Michigan, they likewise have none of these restrictions.
Are you aware of any wine region in the country that tells a winery they can’t sell a logoed t-shirt or coffee cup?
No. Are you? (Editor’s Note: No.)
I think everyone agrees the alcohol industry should be well regulated, and we expect specific regulations. But how granular are these regulations when it comes to other wine regions or other regulations you see?
Oh, they are way more granular. The specifics of it are more than I have ever seen anywhere else. Federally, the regulation of alcohol, it gets pretty specific and comprehensive when it comes to things like labeling restrictions, but even that’s nothing like this, coming down to coffee mugs.
It is just odd to see a township coming in and regulating something that is typically done federally, like the AVAs do. That is a regulatory scheme, but mostly for labeling. You can’t call it Napa Valley wine unless the grapes came from Napa Valley. Easy, straightforward. But the Township is piggybacking that and taking it a step further and saying you can only make and serve Mission wine.
You also have to think about how small the Mission is. There aren’t that many grapes out there. With all the restrictions they put into place, including saying the grapes can only come from the Mission, many of our wineries can’t even buy all the grapes they want, and they can’t make all the wine they could sell. I suppose you can try and get one of the local farmers to break a contract with one winery in favor of your winery, but who wants to do that? All of this also makes the price of the fruit sky high.
Let me see if I have this scenario correct: I want a Mission Peninsula winery to host a business meeting that totals ten people. However, the winery cannot host us without the explicit advance approval of the Ordinance Approval Officer. And if approval is granted, the winery must buy an additional 1.25 tons of fruit per person from a Mission farm, for a total purchase of 12.50 tons of additional fruit purchased. What is the reasoning behind this?
Apparently, this goes back to the 1990’s, when a single winery wanted to have an event. The Township came up with this scenario, saying that if you want to have an event, you need to show support for Mission agriculture by spending money at another farm.
So just the matter of hosting a small meeting requires a winery to buy tons of fruit?
Yes, but that’s the thing. As I stated before, there aren’t tons of fruit out there when you won’t let the wineries buy anywhere else but from the Mission, so you can’t have events.
But the Township also further controls who can use the winery. If you are the Boys and Girls Club of Grand Rapids, you cannot have an event at a Mission winery, because you are 1) not an agriculturally related group and 2) you are not a Grand Traverse County 501(C)(3). Those are the only groups now allowed to have events at wineries. If a Traverse City 4-H Club wanted to have an event, fine. But if my law firm was based in Traverse City, we couldn’t have our holiday party there.
It also appears in response to the wineries hiring counsel and attempting to negotiate with the Township, they responded by proposing more onerous zoning restrictions, such as making tours and even more guest activities subject to the additional fruit purchases. Do I have that correct?
They said it was a typo.
Is there anything the wineries are asking for that is not routinely afforded other wine regions?
No. The wineries are looking for very standard things. Let us grow our grapes, let us buy grapes we want to buy, let us sell wine we want to sell. Let us have a restaurant, which is extremely common for wineries. The other problem I have personally, is it is just good alcohol practice to give customers food and serve them a meal.
The wineries want to give customers the full experience you expect from a winery. The full experience is not come in, taste some wine, buy a bottle, and then leave. The experience is having a meal, doing some pairings, walk through the vineyard, sit on the patio, look at the water. That is the experience people expect from wineries. Just as they expect to be able to have a wedding or corporate outing at a winery. Nothing being asked for is different than wineries across the country already do.
What do you say to those who say the Mission Peninsula is a unique geographic and agricultural area and an increase of wineries and events on the Mission will destroy that area’s beauty and way of life?
The sky is not falling. That is just an easy, simple statement to make that is just not true. There are 11 wineries holding 10% of the land in the Mission. That land is agriculture now, so the wineries are keeping agriculture on the Mission. More wineries create more agriculture, which seems to be what everyone wants.
There really isn’t room for more wineries. There are just a handful of parcels left that have the acreage for a winery. You can’t put 50 wineries on the Mission because there simply isn’t room for that many. What we should be saying is we need to keep the wineries in business so we can keep this green space and keep this land agriculture.
There is one main road going up and down the Mission Peninsula. You drive that road, and it is farms and subdivisions. There’s a lot of subdivisions now, and a lot of really expensive houses. We have heard anecdotally, and I do need to confirm this to be true, that any DUI on the Mission, not a single one is from a winery visit. The wineries are being responsible.
What about the Township’s argument that local control can be stricter than state regulations?
They’re wrong. Let me quote you from a Michigan Court of Appeals case “a city ordinance that purports to prohibit what a state statute permits is void…a state statute preempts regulation by an inferior government when the local regulations directly conflicts with the statute or when the statute completely occupies a regulatory field.”
Preemption is well-established here. Federal law pre-empts state law, state law preempts local ordinance when either the federal or state law encompasses the entire field and they regulate everything in that field. Here we are talking about state regulation of alcohol. The state preempts the local, and there are a bunch of cases that already have held this. The hours of operation cases are already well-established. State law allows anyone with a liquor license to be open from 7AM-2AM, seven days a week. Local governments cannot infringe on that, there are three cases that say that. State statutes say a winery may operate a restaurant, so you can’t have a local ordinance that says a winery can’t.
Federal litigation is often a long slog. Tell me about your clients’ attitude throughout this process.
It has already been a long slog. The wineries have been dealing with this for 13 years. Federal litigation is just a drop in the bucket compared to what they have gone through.
Filing a lawsuit is not something the wineries took lightly. No one wants to go to court. But 13 years of no action has been long enough and it is time to bring in a federal judge to act as an arbiter here.
I cannot emphasize enough that wineries do not want this to be a free for all, with no regulations on anything. They understand there has to be some regulation; they just want fair regulation. The Mission Peninsula is not Napa, and they don’t want it to be. They just want to do what they love, run their businesses and make a profit.