- The Washington Times - Monday, May 14, 2012

RICHMOND — The Virginia Supreme Court has delivered a Fauquier County couple a victory in a protracted legal battle over whether they can sell wine in a county subdivision — a bittersweet win that comes weeks after one of the proprietors, Jerry Marterella, died from melanoma.

Marterella and his wife, Kate, had battled the Bellevue Landowners Council for more than half a decade over their Marterella Winery.

“Obviously, we were gratified that the court saw it our way,” said Robert Zelnick, the couple’s lawyer.

Mrs. Marterella plans to re-open the winery on Memorial Day.

The legal battle began after the couple bought a 13-acre lot in the Bellevue Farms subdivision in 2000 and started to develop a vineyard and winery on the property. In 2005, the landowners council denied the couple’s request to sell retail wine on their property.

In 2008, the council filed a complaint to keep the Marterellas from selling wine on the property, saying it violated the subdivision’s rules. The Marterellas appealed, testifying that on-site retail sale of wine is part of a farm winery and was within the agricultural commercial activity “expressly permitted” without the council or a committee’s approval, as stated in the handbook rules.

A former member of the landowners council had testified that in 2003 during his time on the council he asked the council’s site committee to review the provision in the handbook. The former council member argued that it could potentially be misleading in that it was inconsistent with the requirement that all commercial activities had to be approved by the site committee.

A jury decided for the Marterellas, but the landowners committee moved to set aside the verdict — a motion granted by the trial court.

That, Mrs. Marterella said, was shocking.

“That just doesn’t happen — less than 2 percent of jury cases are set aside,” she said.

Mr. Zelnick agreed, though he added that such a move is not unprecedented.

“It is not commonly done,” he said. “It is a heavy burden to do that.”

The trial court claimed that the term agriculture as “commonly understood” did not include the on-site retail sale of wine, said it was unreasonable for the Marterellas to rely on the handbook and that a “reasonable person would have inquired as to whether or not such activities violate the prohibition.”

The state Supreme Court, however, ultimately reinstated the jury verdict and ruled in favor of the Marterellas.

John H. Foote, a lawyer for Bellevue, did not respond to a request for comment. Attempts to reach members of the board of directors of the Bellevue Landowners Council were unsuccessful.

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