York County to Seek Court Action to Stop Two Oyster Farms

WYDaily.com 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)

York County Attorney James Barnett will file complaints in court seeking to stop Seaford residents Anthony Bavuso and Elyse Pyle — husband and wife — as well as Dandy resident Greg Garrett from using their waterfront properties as part of their oyster harvesting operations.

One complaint addresses Bavuso and Pyle’s operation in the York Point subdivision in Seaford while the other deals with Garrett’s operation at his property in Dandy. The complaints could be filed as early as today, Barnett said.

WYDaily has a copy of the complaint against Bavuso and Pyle, which says the two have continued to use their property on Creek Circle in the course of operating their business, the Seaford Oyster Company, despite a January decision from the Supreme Court of Virginia that says Bavuso and Pyle need a special-use permit to use their property in the course of their operation.

Both Bavuso and Garrett cited House Bill 1089, which was signed into law by Gov. Terry McAuliffe on Monday, when asked for comment on the complaints. The new law, which goes into effect Jan. 1, bars municipalities from requiring special-use permits for farming activities on land with agricultural classifications. Each of the oyster farmers’ properties are in land zoned for both residential uses and farming. It also adds aquaculture — the harvesting of food from the sea — to the list of farming activities municipalities cannot regulate via special-use permits.

“It is ironic that on Monday March 31 the Governor signs HB1089 mandated 128 to 5 by the General Assembly which clarifies that law has always meant that counties can’t require Special Permits for farms like mine that 3 days later on April 3 York County sues me for not having a permit,” Bavuso wrote in an email to WYDaily.

He said in another email that Del. Rick Morris (R-64), the patron of HB1089, identified York County as the only county in Virginia to have exploited a portion of the state code pertaining to protections of farming rights that did not include aquaculture.

Garrett, who had not yet seen the complaint against him when reached for comment Thursday, echoed Bavuso.

“Nothing would surprise me coming from York County,” Garrett said. “The state spoke loud and clear with a vote of 128 to 5 that aquaculture is agriculture. For them to spend more tax money pursuing a personal vendetta against two environmentally friendly oyster farms is proof that the leadership in York County has completely lost their objectivity to govern and serve the people of York County fairly. Hopefully this will be one more wake-up call for the citizens that the York County leadership needs to be replaced. They are elected to serve the people, not to punish us unfairly.”

Barnett said the decision from the Supreme Court of Virginia should end the matter. He said both Bavuso and Garrett continue to operate their oyster operations, which is a violation of the county’s zoning ordinance.

“The County has no adequate remedy at law to remedy the violation by the Plaintiffs of the County’s zoning ordinance, and an inability to enforce its zoning ordinance will cause the County irreparable harm,” according to the complaint.

Last week, the county announced it had received a petition signed by 61 residents of York Point who want the county to take action to bar farming activities from taking place in their neighborhood. County staff drafted a series of options for the York County Board of Supervisors to consider that would allow them to better regulate farming in areas zoned the same as Bavuso and Garrett’s properties.

The option recommended by staff would bar any farming activities from occurring on parcels of land smaller than 2 acres that fall into the resource conservation zoning designation — which constitutes the land in York Point — and rural residential, which is the designation on the land owned by Garrett. More than 6,000 parcels of land in those two zones are less than 2 acres.

“This just shows that the York County BOS is so bent on their political vendetta that they would take away centuries old property rights from thousands of citizens including mine,” Bavuso wrote in an email to WYDaily.

York County Administrator James McReynolds said the proposed 2-acre requirement is in the opinion of county staff “the most straightforward and all-encompassing approach to ensuring that a property is of a sufficient size to accommodate agriculture uses and aquaculture uses with adequate room for setbacks and buffers to protect adjoining properties and developments from potentially objectionable impacts,” according to a memorandum he wrote to the board of supervisors discussing the proposed changes.

The supervisors discussed the issue at their Tuesday work session, deciding to send the proposed zoning changes to the York County Planning Commission for a study. The results of the study are due back to the supervisors by June 30.

The new complaints from the county are not the only current legal documents pertaining to the long-running battle. Bavuso filed a request with York-Poquoson Circuit Court following the supreme court’s decision seeking to have the court examine whether he is permitted to operate his farm without a permit due to the Virginia Right to Farm Act and other language in the state code.

Since that request was filed, Bavuso’s parents, Salvatore and Margo Bavuso, and one of his neighbors, Jonathan Smith, have each filed requests based on those state laws to allow Bavuso and Pyle to use their waterfront properties in the commission of the Seaford Oyster Company’s operations. Scott Reichle, the attorney who represents all three parties, has asked for their cases to be consolidated into a single case, according to Barnett.

A hearing is scheduled for 10 a.m. April 28 for Bavuso’s request to consider the state code. The requests from his parents and Smith have not yet been added to that hearing date, according to court records. Barnett has asked for the court to consider on April 28 the complaints seeking to stop the two oyster farms, though a decision has not yet been made as to whether that will happen.

The Supreme Court of Virginia decision came after years of legal wrangling between the county and the oyster farmers. The case reached the supreme court after a York-Poquoson Circuit Court judge sided with the farmers and said they did not need special-use permits.

Bavuso, a lifelong York County resident, told WYDaily the Seaford Oyster Company has been in continuous operation since 2010. He said the oysters are harvested from the Poquoson River, which he grew up along. He began oyster gardening in early 2000 after considering the “desperate condition” of the Chesapeake Bay and the benefit to the environment oysters provide.

“Then I realized why not grow more oysters and clean more water,” Bavuso wrote. “Our oysters are filtering millions and millions of gallons of water per day and improving the condition of the bay right in our backyard and they taste fantastic!”

Related Coverage: