York-Poquoson Circuit Court Judge Alfred Swersky heard argument Monday as to whether he should revisit the ongoing efforts of Seaford oyster farmer Anthony Bavuso to use his property for oyster farming.
Swersky did not issue a decision following Monday’s arguments. He will release a decision at a later date, at which point he will either agree to hear further argument on Bavuso’s new bid for a judgment siding with him or will rule in favor of York County Attorney James Barnett, who is asking Swersky to decide that the matter has already been sufficiently adjudicated.
Monday’s hearing covered Bavuso’s new bid as well as motions filed by his parents, Salvatore and Margo, and his neighbor, Jonathan Smith. All three want Swersky to decide their property around Seaford is allowed to be used as part of Bavuso’s oyster harvesting operation. Swersky also heard argument from Barnett, who is seeking an injunction against Bavuso that would explicitly bar him from using his property as part of the oyster operation.
The new cases represent the latest chapter in the prolonged legal battle between Bavuso and York County. The issue went before Swerksy in 2012, who ruled with Bavuso, prompting an appeal of the case to the Supreme Court of Virginia, which sided with the county in a decision released in January. That decision sided with the county’s interpretation of its zoning ordinance, allowing it to require Bavuso to secure a special-use permit prior to using his waterfront home in the York Point subdivision as part of the oyster operation.
The new case asks Swersky to explore a different issue — whether Virginia’s Right to Farm Act and another section of state code allow Bavuso to use his property without a special-use permit from the county. Barnett argued Monday this issue has already been in the court’s cross hairs in the past, while Bavuso’s attorney, Scott Reichle, argued the Supreme Court specifically declined to weigh in on the state law issues, making the matter fair game for Swerksy.
Swersky’s decision pertaining to the appeals from Bavuso, his parents and Smith will determine the fate of Barnett’s request for an injunction. If he decides to let those cases move forward, the county will abandon its request for an injunction pending the results of the new cases. If not, the injunction request will then be considered with formal arguments.
Swersky said Monday he will try to issue a decision pertaining to the three appeals as soon as he can. He did not offer a specific time frame for when his decision will be issued.
The issue could be further complicated by recently passed legislation that restricts the regulatory powers of municipalities in Virginia to require special-use permits for certain activities on property zoned for agriculture, including the harvesting of seafood from water. Bavuso’s property is zoned as an acceptable place for agriculture according to county code, however the state law does not explicitly define agricultural zones — and no court case has yet waded into the territory — leaving the implications of the law up for questioning.
Shortly after the passage of this legislation, York County Supervisor Don Wiggins received a petition from residents of Bavuso’s neighborhood asking him to look into reworking county code to crack down on agricultural activities in their neighborhood. The issue has split many residents of the neighborhood into two camps. There are those who support Bavuso’s oyster-farming operation — which is ongoing pending the resolution of Barnett’s injunction request — and those who think agricultural activities are not an appropriate way to use land in the neighborhood.
After receiving the petition, Wiggins asked county staff to draft a series of potential ordinance changes that could address the concerns of the citizens who gave him the petition. These potential changes were presented to the York County Board of Supervisors in March. The supervisors were presented with three options, including unilaterally rezoning the whole neighborhood and adopting minimum requirements for a lot to be used for agriculture.
The supervisors decided then to send the matter to the York County Planning Commission for a study. The results of that study are due back by the end of June. A hearing to gauge the public’s feelings on the proposed changes has been scheduled for 7 p.m. May 14 at York Hall.
Related Coverage:
- Land-Use Debate Pits York Point Residents Against Each Other
- York County to Seek Court Action to Stop Two Oyster Farms
- York Planners to Study Proposed Zoning Changes That Could Erase Farming on Thousands of Properties
- Proposed Zoning Changes Could Bar Farming on Thousands of York Properties
- Ag Bill Lessens Local Control of Aquaculture; Regulatory Options Remain for York County
- 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
