York County Files Petition with Virginia Supreme Court Over Residential Oyster Farming
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:
- The court incorrectly determined that Garrett’s oyster aquaculture is not an aquaculture as defined in the York County zoning ordinance. The court decided, despite what York County officials believe is overwhelming evidence, that Garrett does not raise his oysters in a controlled environment in a manner which enhances growth—if he did, county officials believe his operation would fall into the ordinance definition of an aquaculture. Furthermore, the Circuit Court’s decision that Garrett’s operation is not aquaculture is contrary to the court’s apparent acknowledgement that Bavuso’s operation, where oysters are raised in a manner “nearly identical” to Garrett’s method, is an aquaculture.
- The Circuit Court ignored the requirement in county code for a special-use permit that would authorize the docking of workboats and the offloading of seafood in a residential zone.
- The Circuit Court allegedly ignored the zoning ordinance definition of an animal, instead using one that includes non-vertebrate species, including oysters. The county code, according to the document, says that all nonhuman vertebrate species except fish count as animals. Because of this semantic problem, the court concluded that land-based elements of oyster aquaculture constituted both agriculture and crop/livestock farming instead of aquaculture, which is not allowed unless it is a home occupation with a special-use permit.
- The court failed to rule on the applicability of parts of the code of Virginia, including the Right to Farm Act.
According to the petition, the following objections were raised of the Bavuso decision:
- The court incorrectly decided that Bavuso’s aquaculture is not a principal use. According to county code, “a principal residential use shall not occupy the same lot with any other principal use.” According to county officials, even if the aquaculture was not a primary use, it could not be permitted as a residential accessory use as the ordinance does not allow that either.
- The court again ignored the definition of an animal in the same manner it did with Garrett.
- The court incorrectly relied on a November 2011 opinion from the county zoning administrator to Garrett that a worm farm belonging to Garrett was an agricultural use, though this opinion was rendered subsequent to an ordinance amendment that changed the definitions of “agriculture” and “livestock,” which made the issue have no relevance to Bavuso’s case.
- Like with Garrett, the court incorrectly applied county code to the special-use permit requirements for docking workboats and offloading seafood in a residential zone, as a permit would be necessary.
- According to the petition, the court ruled that the zoning administrator had been arbitrary in allowing farmhouses as an accessory to crop/livestock farming but not as an allowable second primary use in connection with commercial aquaculture use. The court’s decision there, according to York County officials, allows Bavuso’s residence to coexist on the property with the oyster-raising operations just as farmhouses have been allowed to exist on the same land as a farm.
Posted by Gregory Connolly
on January 17, 2013. Filed under Local News.
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13 Responses to York County Files Petition with Virginia Supreme Court Over Residential Oyster Farming
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york citizen
January 18, 2013 at 5:34 pm
This simply does not compute — the fact is that by a longshot most York citizens are happy with their County. We are a Republican-leaning County and the BOS elections are thereby determined in the primary, where some record-breaking turnouts and landslide RE-elections took place. Anyone with a brain can see that only small circles of special interests would accuse York County of being poorly run due to a bad BOS put BACK in place by overwhelming majorities. This is ludicrous. Could it be that election-losing, self-serving special interest groups and disgruntled, brainwashed, and blind-to-reality minions are trying to take a page from the Obama Handbook of Political Marketing? Like Bob Marley says C’mon lets “STIR IT UP.” Get real — the people are happy with their county and they will continue to re-elect the officials that have kept them happy; that is, so long as they are there to be re-elected. We the people of York county are sick and tired of greg garret and his little minions bashing the BOS and tring to run York county.
yes and no
January 19, 2013 at 10:27 am
Do not confuse apathy with satisfaction. Also, do not put everyone who isn’t happy with York management in bed with Greg Garrett. While he may be the most vocal, he is also the least creditable. His minions, as you call them, are few in number and come entirely from the right wing religious groups. Garrett will hold a prayer meeting with them and then tell them that he needs their help in bringing Christian values back to York. Thus building Garrett’s Army for Christ and casting out the sinners on the BoS.
York is a Conservative leaning county. In past elections, the Republicans have had all of the conservatives. Still, our present leaders haven’t been reelected because of great satisfaction among the voters. They have not had serious challengers. In the last Republican Primary only District 4 had a serious and capable challenger. While he did lose the Primary, it was by 42 votes. Certainly not the landslide that you claim. It would appear that almost 50% of District 4 voters are not happy with their Supervisor. The other three incumbents won simply because they were the lesser of two evils. Their challengers were indeed put up by Garrett and his minions. Again with the creditability problem.
York needs a change, but we don’t want the fiasco that Gloucester went through when a new board was elected . Those Supervisors were elected to make changes, but they did it poorly and it caused years of embarrassment for the entire county. Sweeping changes take time and planning. It is not an overnight process.
You could be right that most citizens are happy with our management. However,as a long time observer of local elections, I think voters would quickly elect replacements if there were qualified candidates.
Regardless, of your stand, all parties have the Constitutional right to express their dissatisfaction and attempt to make changes. This should be especially tolerated in YORKTOWN.
another york citizen
January 19, 2013 at 1:47 pm
You are joking right? No one that I know is happy with the tax and spend BOS and administration we have right now.
Over and over, I hear people comment… why is it that everywhere I go I see expensive York County cars and trucks? Why do we have so many County vehicles?
Why would the BOS not waste more money going after citizens on a personal vendetta? After all it’s not their money they are spending.. it’s yours.
Our Fault
January 18, 2013 at 9:27 am
York Administration and our Supervisors are absolutely out of control. We desperately need new management. McReynolds and his staff should have been gone years ago. There is a reason large corporations change their management teams. York Supervisors have shown over and over that they are inept at sound financial management. York’s management team will continue to tax and spend as long as they are in control. It is all they know.
However, this is our fault. When election time comes around, we are all too busy to get involved. We would rather complain about our Supervisors, then get off our butts and run. Until serious and qualified candidates come out and are willing to serve, then we deserve what we get.
A recall has never been successful in the Commonwealth of Va. It won’t work here. This can only be fixed at the ballot box. Now is the time to be cultivating good candidates. Not two months before the election. Additionally, if we do not get out and vote, things will never change. The Supervisor elections fall in an off year and the turnout of voters is shameful. The last election was somewhere around 12%.
If you want to change things in York, either get off your a– or shutup and live with it. Because you caused it!
york citizen
January 17, 2013 at 3:56 pm
Why not let Greg Garrett run York county,he’s a honest man.
I hope you are kidding
January 18, 2013 at 9:30 am
Now there is an idea that should send chills down every citizens back.
York County is Corrupt!!!
January 18, 2013 at 11:30 am
Greg Garrett is an honest man and I would be proud to vote for him!!! If the majority of the citizens really knew what was going on in the county I believe they would be in favor of a recall. The BOS’s can only get away with this type of stuff for so long. It is an abuse of power to target citizens and business owners in the county. And, that is exactly what they do!!
Steve Fisher
January 17, 2013 at 2:47 pm
Great…more waste of money…B.O.S. elections are too far away…
You could be next on the county hit list!
January 17, 2013 at 2:19 pm
They all need to be recalled. Another example of how out of control the Board Of Supervisors are. York County deserves better leadership. Individuals that care about the county and it’s citizens. If the mofia were running the county there would be less corruption! It is time for the citizens to demand an investigation as to what is going on in York County! Using tax dollars to punish certain citizens is an outrage!!!
JSmith
January 17, 2013 at 1:29 pm
I think the county should just make the petition read “We don’t like Greg Garrett and Anthony Bavuso.”
Seriously, this is a joke and waste of time. Clearly the county has an agenda or a problem with one of them. There is no logical reason to obsess and spend so much time and money this issue.
Born-N-YorkCounty
January 17, 2013 at 12:15 pm
It is difficult to believe that York County Board of Supervisors have spent so much time, energy and county resourses to pursue two individuals attempting to harvest oysters from their personal property. York County leadership has become a big joke thru many of their actions over the past few years and I can only hope that in the next election cycle that every one of the current BOS members is turned out and replaced with individuals who are committed to the actual improvement of our community.
Citizen
January 17, 2013 at 10:09 am
How much is this going to cost the taxpayers of York County? The chances of the Supreme Court taking this case is slim to none. In York County if you don’t look the other way as to what is going on they will punish you. Look at what they have done to some of the tenants at Riverwalk Landing! We need new leadership in York County!
EOC
January 17, 2013 at 9:53 am
The citizens will take back this county and the BOS’s and the county staff will get what is coming to them!!!