Judge Rules in Favor of York Oyster Farmers

WYDaily.com is your source for free news and information in Williamsburg, James City & York Counties.

A judge issued a ruling Friday that York County residents Greg Garrett and Anthony Bavuso did not need permits to commercially farm and harvest oysters at home.

The judge’s opinion reverses earlier decisions by the Board of Zoning Appeals. In January, the BZA found Garrett in violation of operating an at-home aquaculture business without a Special Use Permit for offloading seafood and using his docks. In January 2011, the BZA determined Bavuso would need an SUP to operate his home oyster farming business.

The ensuing property rights debate that happened to center on oysters led to a York-Poquoson courtroom in late summer.

County Attorney James Barnett said once an order is entered, the county will have 30 days to appeal to the Virginia Supreme Court but as of Friday afternoon, he did not know whether the Board of Supervisors wanted to pursue an appeal. The board meets for its regular meeting Tuesday, and might meet in closed session to discuss legal matters, he said.

The Virginia Supreme Court agrees to hear about one out of every four appeals filed, Barnett said. If the county opts not to appeal or its appeal were denied, Swersky’s ruling will not open up oyster farming in the county to anyone but Garrett and Bavuso, who were seeking to have their land uses “grandfathered” under a previous zoning ordinance, Barnett said.

Both men argued their oyster operations were by-right uses of their land based on the county’s ordinance prior to November 2011, when the Board of Supervisors adopted several changes to the ordinance specifically aimed at aquaculture and agriculture in York County.

The appeals were filed separately by Bavuso and Garrett, but were argued in court before Swersky during the last week of August. Swersky is a retired Circuit Court judge who works as a civil dispute professional with Richmond’s The McCammon Group.

In his appeal, Garrett argued the York County Board of Zoning Appeals incorrectly used an outdated zoning ordinance when it denied his appeal. In court, Garrett’s lawyer, Michael Ware, argued the county’s ordinance prior to Nov. 16, 2011 granted him the right to commercially farm and harvest oysters in the waters next to his Dandy home without a special use permit.

In November, the county made several changes to the zoning ordinance, including the addition of the phrase “but not aquaculture” to the definition of agriculture allowed in residential zones. It also was altered to define aquaculture as being practiced not only in “controlled environments,” but also in “selected” environments.

Barnett argued changes made to the ordinance did not expand or alter Garrett’s property rights in any way, and that a special use permit is required for the commercial activities occurring on the land.

The case centered on Garrett’s assertion that aquaculture is a form of agriculture, which he supported with letters and testimony from aquaculture experts across the country. The county argued that, for the purposes of its zoning ordinance, aquaculture is not a form of agriculture and the land-based activities associated with oyster farming are not allowed by right in the rural residential district where Garrett lives.

The county’s code prior to November 2011 defined aquaculture as the raising of aquatic life in a “controlled environment” and in court, Barnett argued Garrett’s use of cages to grow his oysters from triploid seed constituted a controlled environment. Ware disputed that, arguing that Garrett was raising his oysters in the water, which is an uncontrolled environment.

Furthermore, the county argued that regardless of whether he was practicing aquaculture or agriculture, Garrett needed an SUP for the docking and offloading of seafood and the use of non-resident workers for a “home occupation.”

Garrett argued the activities were occurring outside the definition of a home occupation, which he said occurs inside a structure. Read more about the case by clicking here.

In his ruling letter, Swersky said Garrett’s activities do constitute agriculture as defined by the county’s pre-November code. “Garrett is raising animals for food and, hence, comes within the definition of ‘agriculture,’” Swersky wrote. “His activities do not constitute ‘aquaculture’ because the evidence clearly and unmistakably shows his activities are not within a ‘controlled environment to enhance growth or propagation.’”

Swersky also said Garrett’s activities did not constitute a home occupation use and that there is no evidence his dwelling is used for the operation.

Bavuso began harvesting oysters in 2009, believing oyster farming to be allowed by right in the Resource Conservation District. He was not aware he needed a Special Use Permit until he filled out paperwork to grandfather his use of the land and Zoning Administrator Mark Carter said he would need one because the code said “a principal residential use shall not occupy the same lot with any other principal use.” The lot’s principal use, in Carter’s opinion, was as a home, not a business.

Bavuso appealed to the Board of Zoning Appeals, which agreed with Carter and in December 2011, then applied for an SUP, which was recommended for approval by the Planning Commission, but was denied by the Board of Supervisors. His lawyer, Scott Reichle, argued oysters should be considered animals and if farmed, should be considered livestock.

As with the Garrett case, Swersky agreed oysters are livestock, and that raising livestock does not require a permit in the Resource Conservation district. In addition, Swersky said the county code had no express provision stating that “permitted” uses are the same as “principal” uses.

Bavuso also argued Carter’s interpretation was “arbitrary and capricious” in view of prior rulings that permitted farming along with residential uses on the same property. Swersky agreed, and the rulings of Carter and the BZA will be reversed.

In an email to friends and supporters, Garrett said the ruling was “so much BIGGER than a victory for just one family and its small oyster farm!”

“This is a victory for every Virginian who cherishes freedom, liberty, property rights, limited government, local jobs and/or the Bay,” he said, adding that his family is committed to operating its oyster farm without any significant noise, traffic or smell.