Although a bill on the desk of Gov. Terry McAuliffe could erase York County’s ability to require permits for commercial oyster farming on certain properties, the county would still have options to regulate the practice if the bill is signed into law.
York County residents Greg Garrett and Anthony Bavuso have been locked in a battle with the county for years over whether they may use their land to run their commercial oyster operations. The dispute has climbed all the way to the Supreme Court of Virginia, which sided in January with the county on both of their cases. The question at the heart of the cases is whether the two men need permits from the county to farm oysters on their land.
The bill on McAuliffe’s desk could change all of that, as it would take away the right of municipalities to require people to seek out permits for certain agricultural activities in areas zoned for agriculture. Garrett owns property along the York River in Dandy and Bavuso owns property along Chisman Creek in Seaford. Both properties are zoned for both residential uses and farming.
Messages left with McAuliffe’s office were not returned.
The county would still have the authority to either rezone land away from agricultural uses or establish property requirements, such as a minimum lot size for any agricultural operation.
The bill has been amended to not go into effect until Jan. 1, 2015 after York County Attorney James Barnett and others spoke before the Virginia Senate as they considered the bill. That block of time could enable the county to consider and implement any potential changes to county code.
The passage of the bill by the General Assembly has left Garrett feeling “extremely optimistic.”
“It makes the strongest statement that Virginia has ever made in support of aquaculture,” Garrett said of the bill, which cleared the Virginia Senate on a 33-5 vote and the House of Delegates on a 100-0 vote. Historic Triangle delegates Monty Mason (D-93) and Brenda Pogge (R-96) and Sen. Tommy Norment (R-3) all voted in support of the bill. Sen. John Miller (D-1) represented one of the few no votes the bill received during its final pass through the Virginia Senate.
Monday’s Senate vote to approve the bill came two days after Garrett received word the Supreme Court of Virginia had decided to deny his petition to rehear his case, which he had filed after the decision was handed down in January.
“The leaders throughout the state of Virginia voted 128 to 5 to support aquaculture and to prevent unfair city and county governments like York County from using their power in shutting down aquaculture farms in areas where those same cities and counties allow commercial pig, buffalo and goat farms,” Garrett said.
He said the near unanimous vote should be a “strong statement” to the county, noting “it would be nice” for the county to “realize they’re out of sync with the rest of Virginia.”
“It’s a very loud statement that York County needs to give this one up,” he said.
Bavuso had taken a different path. He filed a request with York-Poquoson Circuit Court on Jan. 31 that seeks to have the court revisit discussions from when it tried the case in 2012 prior to its ascension to the Supreme Court of Virginia. In particular, Bavuso’s lawyer argued in a brief filed with the court there is a “justiciable controversy” as to whether the permit requirement violates the Virginia Right to Farm Act. The first hearing in that matter is scheduled for 10 a.m. April 28.
Bavuso declined to comment for this article, citing his pending litigation.
The legal battle has cost both sides thousands of dollars. So far, York County’s total legal cost is $7,008.69, most of which went to a Richmond-based firm that engages in the expensive practice of printing legal documents, Barnett said. Garrett said in February that legal fees and the cost of operating his business within current county regulations has cost him $40,000.
Garrett initially applied for a special-use permit in 2010. His application went before the York County Planning Commission in November of that year. The planners recommended the application be denied after a group of Garret’s neighbors expressed concerns about how the operation would affect their quality of life. He submitted a second special-use permit application in 2011 after tweaking his plans, however he pulled it because of a scheduling conflict, according to county staff.
In January 2012, the York County Board of Zoning Appeals decided Garrett was violating county code by operating an at-home aquaculture business without a special-use permit. By February, Garrett had filed his case in York-Poquoson Circuit Court.
Bavuso began harvesting operations in 2009, believing oyster aquaculture to be allowed by right. Bavuso applied for a special-use permit in December 2011, landing a recommendation for approval from the York County Planning Commission before the Board of Supervisors voted in April 2012 to deny the permit.
Their cases were both tried in York-Poquoson Circuit Court in October 2012, where Judge Alfred Swersky ruled in favor of the oyster farmers. The case was then appealed by the county to the Supreme Court of Virginia, where arguments were heard in October. That court ruled in favor of the county.
Related Coverage:
- House Bill Could Mean Big Changes for York County Oyster Farming
- Supreme Court of Virginia Sides with York County Against Oyster Farmers
- Supreme Court of Virginia Hears York Oyster Appeals
- Virginia Supreme Court Agrees to Hear York Oyster Farming Case
- York County Files Petition with Virginia Supreme Court Over Residential Oyster Farming
- York County to Appeal Rulings in Oyster Cases
- Judge Rules in Favor of York Oyster Farmers
- Circuit Court Hears Garrett Oyster Case
- Judge Delays Ruling in Bavuso Oyster Case
- Circuit Court to Decide Oyster Cases This Week
- Garrett Says Oyster Business is Legal, Takes York County to Court
