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.
