A substitute judge in York-Poquoson Circuit Court has decided to accept a request filed by a Seaford oyster farmer to consider whether state law allows the farmer to use his waterfront home in York Point as part of his farming operation.
Judge Alfred Swersky issued a letter May 22 outlining his reasoning for accepting Anthony Bavuso’s request to consider whether state law blocks the county from requiring a special-use permit for the land to be used as part of the farm. The county believes it has the authority to require the permit, while Bavuso contends state law, including Virginia’s Right to Farm Act, blocks the county from requiring the permit.
Swersky already considered the case on different grounds in 2012, when he sided with Bavuso’s claim that a special-use permit was not needed. The county then appealed the case to the Supreme Court of Virginia, which sided with the county. Following that decision, Bavuso refiled the case under different grounds, which Swersky accepted with his letter.
In his letter, Swersky said he accepted the request from Bavuso because it does not seek to have the court reconsider issues it dealt with in the 2012 case. Circuit Court is the appropriate venue for considering interpretations of state law, he wrote.
The state law referenced by the case bars municipalities from requiring special-use permits to conduct farming activities on land zoned for agriculture. But the state law does not specify what constitutes an agricultural zone. Bavuso believes his land, zoned resource conservation, is protected by the law, while the county believes the opposite.
“We are thankful we will find out how the Right to Farm Act can protect local farmers like us,” Bavuso said in an emailed statement. “We look forward to continuing to provide fresh local oysters to our community.”
York County Attorney James Barnett argued at an April 28 hearing the matter was sufficiently adjudicated. Barnett also asked for an injunction from the court requiring Bavuso to stop using the York Point property as part of the oyster farm. In his May 22 letter, Swersky said should the county want to continue the injunction request, a separate hearing will have to be set.
Barnett said Tuesday he will have to discuss the injunction with the York County Board of Supervisors to determine the next step for that application. He said the county believes the state laws referenced by Bavuso do not apply to the harvesting of seafood from water, a process known as aquaculture. He cited an attorney general opinion — which is legally nonbinding — saying aquaculture is not protected by the Right to Farm Act.
Hearing dates have not yet been set to consider either the injunction or the next step for Bavuso’s bid for Swersky to consider his situation under the state laws.
Swersky’s letter also indicated he will consider requests from Bavuso’s parents and his neighbor, Jonathan Smith. Both of those parties have asked Swersky to rule their land is acceptable to be used as part of Bavuso’s oyster farm.
During its most recent session, the General Assembly passed legislation that curtails the ability of municipalities to require special-use permits for farming activities on lands zoned for agriculture. Following the passage of that legislation, the county began considering a series of plans to mitigate the loss of the special-use permit process, including one that would erase all farming rights in York Point.
The proposals prompted a protest outside of York Hall earlier this month. The implementation of the new law and the plans put forth by the county could affect the status of the case, though no firm action has yet been taken by the county.
Related Coverage:
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- 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
