Two York County residents will argue their right to farm oysters at home in York-Poquoson Circuit Court this week.
Anthony Bavuso and Greg Garrett are separately petitioning the county’s interpretation of its aquaculture ordinances. In both cases, the county maintains the residents have been farming oysters without county approval, which is required. Neighbors have also spoken out against both of the operations, voicing concerns about having commercial businesses in the neighborhoods of York Pointe and Dandy.
Today, the York-Poquoson Circuit Court will hear Bavuso’s appeal at 1 p.m. The Board of Supervisors were split 3-2 when they denied his request for a special use permit in April. The Planning Commission had unanimously recommended Bavuso’s request for approval. No one spoke in opposition at the Planning Commission meeting, but several residents advocated against approval at the supervisors’ meeting.
At 9 a.m. Friday, the Circuit Court will hear Garrett’s appeal of a Board of Zoning Appeals decision that determined commercial aquaculture activities constitute unauthorized land use of his property. The county’s zoning department issued a notice of violation in August 2011, before the county clarified aquaculture was not an approved use in its agriculture ordinance in November 2011. Garrett believes his operation should be grandfathered under a previous ordinance, and claims the county improperly used only the amended code in its presentation to the BZA during his January appeal hearing.
He also said the county failed to abide by its policies and procedures in its appellate process by giving him only 15 minutes to speak, while giving county employee Dina Goode unlimited time for her presentation. In a letter to the court, County Attorney James Barnett said the county has no control over the BZA’s policies and procedures, because the BZA members are appointed by the Circuit Court.
When Garrett filed his appeal of the county’s zoning violation notice to the BZA in October 2011, he said he was not doing aquaculture, but “mariculture,” which he said is permitted because it is a form of agriculture.
County ordinance specifies agriculture is allowed in rural residential zones; in November 2011, the Board of Supervisors added “but not aquaculture” to the ordinance language. In a letter to the BZA, the zoning office noted, “The county does not acknowledge calling it ‘mariculture’ makes it a permitted use.”
Greg Garrett Oyster & Seafood LLC applied for a Special Use Permit to dock work boats and offload seafood on Sept. 21, 2010. That October, he filed a commercial permit application with the Virginia Marine Resources Commission indicating he wanted to grow oysters to sell.
In November 2010, his SUP request was denied by the Planning Commission, and Garrett withdrew his request before it went before the Board of Supervisors. But the following summer, the county received photos taken over four days in July of nonresident workers unloading oysters on Garrett’s property. The county also learned that at least one restaurant was selling oysters from Garrett’s operation. In August 2011, the county issued a violation notice to Garrett.
The county’s current ordinance uses the following definition of aquaculture: “Aquaculture means the propagation, rearing, enhancement and harvest of aquatic organisms in controlled or selected environments, conducted in marine, estuarine, brackish or fresh water.”
Garrett argues the county’s definition of aquaculture is outdated, and has assembled several letters from aquaculture experts affirming aquaculture is considered agriculture. One of them, Michael Oesterling, will appear as a witness on Friday.
In a letter to Garrett, Oesterling said the use of cages does not enhance growth, and the use of triploid oyster seed, which is reproductively sterile, does not propagate. He added that the oysters could be considered livestock, because they are being harvested as food. Auburn University aquaculture expert Jesse Chappell agreed, adding the river cannot be considered a controlled environment, as defined by the county. In her presentation to the BZA, Goode said the cages do constitute a controlled environment.
At the same BZA appeal hearing, Assistant County Attorney Melanie Economou said that with few exceptions, the Virginia Code does not mandate localities follow any particular definitions for zoning. She added that the state’s Right to Farm Act doesn’t include a definition of aquaculture.
Last fall, the Board of Supervisors discussed amending rural residential zoning to remove agriculture as a permitted use, but tabled the idea when Sen. Tommy Norment (R-3) introduced a Senate Bill that proposed amending the Right to Farm Act to restrict locality control of agriculture.
The bill, written by Norment after he was approached by Garrett, would have allowed aquaculture activities on land where agricultural activities are permitted, no longer requiring county approval. That bill failed, and the supervisors voted to withdraw the proposals to change the zoning ordinances.
In April, Garrett filed his appeal with the Circuit Court. In response, County Attorney James Barnett said that although the county amended its code, the amendments did nothing to expand or restrict Garrett’s rights. He added that Garrett could not be “grandfathered” under the older county ordinance “because he never lawfully instituted the land-based aspects of the business.”
