Supreme Court of Virginia Sides with York County Against Oyster Farmers is your source for free news and information in Williamsburg, James City & York Counties.

Oysters from the Chesapeake Bay (Photo courtesy VIMS)
Oysters from the Chesapeake Bay (Photo courtesy VIMS)

The Supreme Court of Virginia released its decisions in two cases from York County on Friday, siding with the county in its bid to stop a pair of oyster farmers from using their property in the county to facilitate their commercial oyster harvesting operations without a permit.

The two cases — both appeals from the county regarding decisions from York-Poquoson Circuit Court that sided with the farmers — were argued before the Supreme Court of Virginia in October. Each of the two cases has an oyster farmer pitted against the county, but the exact dispute is different in each case. At the heart of both cases is whether the farmers, Anthony Bavuso and Greg Garrett, need special-use permits to use their land to facilitate the oyster harvesting.

The dispute is not over whether the two are allowed to collect oysters on the water as that matter is regulated by the state, which has approved of their operations. The debate centers on a small part of their operations, when the oysters are removed from boats and transported on land owned by the men to vehicles. York County has jurisdiction over Bavuso’s waterfront property in Seaford and Garrett’s waterfront property in Dandy.

The decisions from the court leave Bavuso and Garrett needing a special-use permit if they wish to continue to use their land to facilitate the operations. In Bavuso’s case, Chief Justice Cynthia D. Kinser and Justice LeRoy F. Millette Jr. dissented from the majority’s opinion.

The only place left to take the two cases now is to the Supreme Court of the United States, should Bavuso or Garrett wish to appeal their respective decision.

York County Attorney James Barnett said Friday he was satisfied with both decisions.

“[The Supreme Court justices] seem to have understood and accepted all of our arguments, and you can’t ask for more than that,” he told WYDaily.

Garrett’s case centers on the notion that aquaculture is a form of agriculture. His land is zoned for rural residential development, where agriculture is allowed by right. The county’s definition of agriculture permits the raising of livestock for human food, though according to Barnett, who argued the case before the Supreme Court, agriculture does not include aquaculture. Barnett contends that offloading is only permissible with a special-use permit.

The Circuit Court sided with Garrett, saying he did not need a special-use permit to use the land. His attorney, Michael Ware, argued in October before the Supreme Court that an oyster is an animal and is thus livestock.

The Supreme Court sided with Barnett, saying the Circuit Court decision erred in determining that Garrett did not need a special-use permit to use his land to facilitate the oyster harvesting as a livestock/agriculture operation. According to a brief outlining the decision, the harvesting can only continue if it is an accessory use or as a home occupation, which would require a special-use permit.

“The Lord giveth and the Lord taketh away, blessed be the name of the Lord,” Garrett told WYDaily on Friday. “There are a whole lot of losers in this decision and only one winner. The egos of a handful of people are the only winner. The losers are the bay, the environment, seafood lovers and people that care about food independence and being able to produce their own food, and my family. We’re the losers.

“The Supreme Court decided in a split decision that it is OK for us to have a commercial pig farm but not a commercial oyster farm. It just doesn’t make any sense,” he said.

In Bavuso’s case, the county argued he needed a special-use permit to facilitate oyster harvesting on his property as oyster aquaculture is a principal use and is thus not permitted on a property where there is also a house. With a few exceptions, a principal use for a property is its primary use. For example, if a parcel is zoned residential and has a house on it where people are living, then the house is its principal use. According to the county code, “a principal residential use shall not occupy the same lot with any other principal use.”

Barnett argued before the Supreme Court that Bavuso needs a special use permit to operate the property as a staging area for his oyster operation. Bavuso contends that his work, which he believes is aquaculture or livestock farming, is not a principal use and is thus allowed on his property by matter of right.

In a brief from the Supreme Court describing the decision, Bavuso’s property is said to clearly have a residential use for the principal use. It goes on to say that because aquaculture nor crop/livestock farming is listed in the county’s list of accessory uses, it is not an accessory use that is allowed. It is allowed by special-use permit, however, as it is a home occupation, according to the court.

Bavuso began harvesting operations in 2009, believing oyster aquaculture to be allowed by right. He remained unaware of the need for a special-use permit until he filed paperwork to grandfather his use of the land. At that point, York County Zoning Administrator Mark Carter said he would need a special-use permit due to the principal use of the property as a residence and not a business.

Carter’s decision was then appealed to the York County Board of Zoning Appeals, which agreed with Carter. In December 2011, Bavuso applied for the special-use permit, which was recommended for approval by the York County Planning Commission, a group tasked with reviewing special-use permit proposals and determining if they align with the land’s zoning designation. Their recommendation is then forwarded to the York County Board of Supervisors, who have the authority to accept or reject a special-use permit proposal. The supervisors voted in April 2012 to deny Bavuso the special-use permit, leaving the court system as the final place for the matter to go.

Like Bavuso, Garrett also initially applied for a special-use permit. His application went before the Planning Commission in November 2010, however they recommended the supervisors deny the application after a group of Garrett’s neighbors expressed concerns about how the operation would affect their quality of life. In January 2011, state Sen. Tommy Norment (R-1st District), who wrote a letter of support for Garrett’s 2010 bid for a special-use permit, introduced legislation to the Virginia Senate that would prevent localities from having any input into whether a property owner can engage in aquaculture on waterfront property. That legislation cleared the Senate before it died in committee in the House of Delegates.

He submitted a second special-use permit application for consideration in fall 2011 after tweaking the plans, however he pulled the application because of a scheduling conflict, according to county staff. In January 2012, the Board of Zoning Appeals decided Garrett was violating county code by operating an at-home aquaculture business without a special-use permit. By February, Garrett had filed the case in York-Poquoson Circuit Court.

Bavuso has not yet responded to a request for comment.

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