The York County Board of Supervisors has directed the county to appeal a recent decision by a Circuit Court judge that ruled two residents could commercially harvest oysters at home without permits.
County Attorney James Barnett confirmed the board met in closed session Tuesday and agreed to take two related cases to the Virginia Supreme Court.
Before the county can begin the appeal process, an order must be entered into the Circuit Court reflecting Judge Alfred Swersky’s ruling, issued in writing to attorneys on Friday, which found in favor of county residents Greg Garrett and Anthony Bavuso. From the date the order is entered, the county has 30 days to file an appeal to the Virginia Supreme Court.
In Virginia, attorneys must file a petition for the Supreme Court to review a decision made in Circuit Court. If accepted, attorneys can make brief oral arguments before a panel of three justices. An appeal can be granted by just one of the three justices, but to deny an appeal, three justices typically must agree. If the petition is denied, the appeal process ends; if it is granted, the case is argued before the full court of seven justices.
On Friday, Barnett said the Virginia Supreme Court agrees to hear about one out of every four appeals. If the court refuses to hear the appeal, he said Garrett and Bavuso will be “grandfathered” under the county’s pre-November 2011 zoning ordinance, and will be able to commercially harvest oysters by right as an agricultural operation.
Barnett said he was concerned that Swersky seemed to dismiss the county’s argument that both men needed special use permits to dock boats and offload seafood and didn’t possess them. “He seemed to brush that aside,” he said Friday. Both men argue those activities are associated with their agricultural operations, which were allowed without permits in both the Rural Residential and Resource Conservation districts where they reside.
Garrett let friends know about the appeal through a mass email sent Wednesday night, saying, “Our County Fathers (and Mother) have decided that the highly respected judge from Northern VA is WRONG … They are appealing our property rights victory to the Supreme Court.”
The judge’s opinion reversed earlier decisions by the Board of Zoning Appeals. In January, the BZA found Garrett in violation of operating an at-home aquaculture business without a Special Use Permit for offloading seafood and using his docks. In January 2011, the BZA determined Bavuso would need an SUP to operate his home oyster farming business.
The ensuing property rights debate that happened to center on oysters led to a York-Poquoson courtroom in late summer. Read more about the case here.
