Lawyers for York County and resident Greg Garrett debated Friday whether he needed a permit to commercially farm and harvest oysters at his home.
Friday’s hearing was the second case concerning oyster farming in residential zones argued in York-Poquoson Circuit Court this week. Both cases will be decided by Judge Alfred Swersky, a retired Circuit Court judge who works as a civil dispute professional with Richmond’s The McCammon Group. He told lawyers in both cases he will deliver opinions in writing.
Garrett believes the York County Board of Zoning Appeals incorrectly used an outdated zoning ordinance when it denied his appeal of a violation notice in January. He further claims the county violated its appellate process by giving him only 15 minutes to state his case, while giving the county unlimited time for its presentation.
On Friday, Garrett’s lawyer Michael Ware argued the county’s ordinance prior to Nov. 16, 2011 granted him the right to commercially farm and harvest oysters in the waters next to his Dandy home without a special use permit. In November, the county made several changes to the zoning ordinance, including the addition of the phrase “but not aquaculture” to the definition of “agriculture” allowed in residential zones.
The county argues changes made to the ordinance did not expand or alter Garrett’s property rights in any way, and that a special use permit is required for the commercial activities occurring on land.
Garrett’s case centers on his assertion that aquaculture is a form of agriculture, an assertion supported with letters from aquaculture experts across the country. Agriculture is a permitted land use in the Rural Residential District, the zoning classification for Garrett’s Dandy home. The county’s definitions of agriculture allow the raising of livestock for human food, and Ware argued an oyster is an animal and is considered livestock.
York County Attorney James Barnett defended the previous ordinance, and said that although an oyster is an animal “for Webster Dictionary purposes,” it is not considered an animal in York County ordinance, and would fall under the county’s definition for aquaculture. Because the county does not consider aquaculture a form of agriculture, the land-based activities associated with oyster harvesting are not a permitted use, Barnett said.
York County doesn’t have jurisdiction over the waters, but does have control over docks and piers. The county maintains Garrett needed a special use permit to dock workboats, off-load seafood and employ non-resident workers at his home. If the judge agrees aquaculture should be treated as agriculture, those activities would be considered agricultural activities and wouldn’t require a permit.
Garrett was issued a notice of violation in August 2011, when the county received photos of non-resident workers off-loading seafood on Garrett’s dock and learned his oysters were being sold in at least one restaurant. He appealed the notice to the BZA in October.
Before his BZA hearing occurred, the Board of Supervisors adopted several changes to the zoning ordinance specifically aimed at aquaculture and agriculture in York County. When the BZA sided with the county at his January appeal hearing, Garrett claims it was the latter ordinance that influenced the BZA’s decision.
The Greg Garrett Oyster and Seafood Company applied for a Special Use Permit to authorize seafood harvesting as a home occupation with up to four non-resident employees in 2010. He proposed to grow, harvest, shuck, package and ship oysters from his property.
Garrett said his leases granted by the Virginia Marine Resources Commission, which governs oyster farming, would allow him to harvest from a boat in the water 24 hours a day, seven days a week, but that he didn’t want to do that. He added that his property would not resemble a commercial operation, and he had no plans to add any buildings. At the time, staff and Garrett’s attorney, Harold Barton, agreed there was no precedent for such an application in York County.
Citing concerns about the scope of the proposed commercial business and what the principal use of the property would be, the Planning Commission voted unanimously not to recommend approval to the Board of Supervisors. Garrett withdrew his application before it proceeded to supervisors.
Virginia’s Right to Farm Act prohibits counties from adopting any ordinance that requires special exception or a special use permit for any agriculture activity in an area zoned as an agricultural district. In the past General Assembly session, state Sen. Tommy Norment submitted a bill that sought to add aquaculture to the Right to Farm Act, but the bill did not pass. Attorney General Ken Cuccinelli issued an opinion in March that “aquaculture does not constitute an agricultural operation under the Virginia Right to Farm Act.”
At Friday’s hearing, the two parties debated the definitions of several words, including “animal,” “agricultural animal,” “livestock,” “controlled environment” and whether aquaculture can be considered a form of agriculture.
Barnett said the county defines an animal as any vertebrate species except fish, and said that definition also applies in the county’s definition of livestock. The county currently defines an agricultural animal as “all livestock or poultry, including horses, ponies, bison, cattle, sheep, goats, alpacas, llamas, poultry or other similar animals specifically raised for food or fiber, except household pets.”
Before the supervisors approved changes, the county’s definition of “agricultural animal” included the Latin names of animals. Assistant County Administrator Mark Carter testified Wednesday that the county wanted to change the names to more common terms.
The previous definition also said livestock included “any other individual animals specifically raised for human food or fiber, except companion animals.” The county also changed the definition of “crop/livestock” to mean “agriculture.” See the adopted ordinance, including edits, here.
Ware argued that because Garrett’s oysters are raised as food, they are agricultural animals according to the previous definition, which didn’t include the word “similar,” and originally said, “… or other animals specifically raised for food or fiber.” The county maintains the “agricultural animals” definition has always applied only to vertebrate animals.
Prior to the changes, the county defined “agriculture” as the use of land for a bona fide agricultural operation involving the raising of crops, horticulture, the keeping of animals and fowl or any other similar agricultural activity, and including the customary accessory uses which are normally associated.
The new version says agriculture is the use of land involving the production for sale, but not processing, of plants, animals and agricultural products useful to man. The new definition also added the clause, “but not aquaculture.”
In his arguments, Barnett said that Garrett’s operation, which involves the raising of triploid oysters from seed in cages, fits the county’s pre-November definition of aquaculture: “A controlled environment to enhance growth or propagation of harvestable freshwater, estuarine or marine life plant or animal species.”
He argued Garrett’s use of cages constitutes a controlled environment. He asked expert witness Michael Oesterling, the executive director of the Shellfish Growers of Virginia, if oysters could grow from seed at a property like Garrett’s without cages. Oesterling said that while cages do not directly enhance growth, they provide protection from predators, thereby allowing the oysters to mature without harm.
Barnett also asked Oesterling to explain the process of husbandry. Oesterling said oyster husbandry involves sorting the oysters by size to avoid overcrowding and ensure they have space to grow; Barnett later said the husbandry indicates the oysters are raised in a controlled environment. The oyster operation cannot be considered propagation, however, because triploid oysters are reproductively sterile.
Ware disputed the assertion that cages control the environment. He said the oysters live in the water, which cannot be controlled, and that once on the piers, the oysters are no longer in a controlled environment. “This is an agricultural business when it touches the land,” Ware said in his closing argument.
