York County Attorney James Barnett Jr. filed a pair of petitions with the Supreme Court of Virginia Wednesday that call on the court to listen to appeals from York County officials of the October decision by the York-Poquoson Circuit Court that allowed county residents Greg Garrett and Anthony Bavuso to continue to commercially farm and harvest oysters at their homes without a special-use permit.
According to county ordinance, agriculture is allowed in rural residential zones, though in November 2011, the York Board of Supervisors added “but not aquaculture” to the language of the ordinance. Greg Garrett Oyster & Seafood LLC applied for a special-use permit to dock work boats and unload seafood at Garrett’s residence in September 2010.
The petition does not deal with whether Garrett and Bavuso are allowed to harvest oysters in the water, as the county does not have jurisdiction there. The question is whether they’re allowed to use their land to facilitate that purpose, as county zoning ordinances do apply to the land they own. Garrett and Bavuso are in line with Virginia law when it comes to harvesting oysters in the water, as they have both obtained permission from the Virginia Marine Resources Commission.
Garrett withdrew the request after the York County Planning Commission recommended in November 2010 that the supervisors not issue the permit. In January 2011, the York County Board of Zoning Appeals decided Bavuso would need a special-use permit to operate his home oyster farming business.
In the summer 2011, the county received photographs that were taken over four days in July of non-resident workers unloading oysters on Garrett’s property. The county also learned at that time that at least one restaurant was selling oysters from Garrett’s operation, so in August 2011, the county issued a violation notice.
In January 2012, the county’s Board of Zoning Appeals heard Garrett’s appeal of the violation notice and decided Garrett was in violation of operating an at-home aquaculture business without a special-use permit for offloading seafood and using his docks. According to the petition, Garrett said his operation was “mariculture” instead of aquaculture. Mariculture is not found in the county’s zoning ordinance, but Garrett argued it’s a form of agriculture and as such is permitted.
The case went before the York-Poquoson Circuit Court in October 2012, where Judge Alfred Swersky ruled in favor of Garrett and Bavuso. Because York County decided to appeal the decision of a circuit court, they were required to submit a petition for appeal to the Virginia Supreme Court.
If the petition is accepted, attorneys for each side make a brief oral argument before a panel of three justices. An appeal can be granted by just one of the three justices, but for the appeal to be denied, all three justices must typically agree. If the petition is denied, the process is over; however, if the appeal is granted, the case is argued before the full court of seven justices.
In an October interview, Barnett said that if the Virginia Supreme Court does not rule in favor of the county, Garrett and Bavuso will be “grandfathered” under the county’s pre-November 2011 zoning ordinance and will be allowed to commercially harvest oysters by right as an agricultural operation.
Each petition raises several issues with the Circuit Court’s decision. According to the document, the court erred in its judgment of Garrett’s oyster farm for the following reasons:
According to the petition, the following objections were raised of the Bavuso decision: