The York County Board of Supervisors voted 4-0 Tuesday to set in motion a process that could culminate with the elimination of certain livestock and underwater farming rights on about 5,600 properties in the county before the year ends.
The vote is the latest step in an ongoing examination of how certain farming practices — primarily the underwater farming of oysters — affects property owners in the county. After the passage of a new law by the General Assembly earlier this year that restricts how municipalities can regulate farming practices in certain areas, the supervisors and county officials seek to sharpen the county’s zoning ordinance to ensure control remains over the practices.
The York County Planning Commission has studied a set of three proposals to bolster the county’s ability to govern farming in the wake of the law’s passage. The commission focused on establishing performance standards — specific requirements land must meet to be used for an activity — as a way to govern farming activities on the affected land moving forward. York County has no control over what happens in the York River or its tributaries, however the county can regulate the land-based components of underwater farming, which the proposals seek to do.
The purpose of Tuesday’s meeting was to start the process required to implement the proposals and change the county’s ordinance. The supervisors agreed with the commission on several proposed performance standards for underwater farming, including requiring 2 usable acres of land for the land-based component of any new underwater farming operation and setbacks of at least 100 feet from any neighboring house and 25 feet from the property line for activities that include docking and loading workboats, storing waste material and storing items outdoors.
The supervisors also considered a set of proposals for livestock farming on the affected properties, including a requirement for 2 acres of usable land, a setback of at least 100 feet from the property line of another property for any open-air pen or fenced area for livestock with less than 200 square feet of land per animal, and a setback of a least 25 feet for livestock pasture bordering a property with less than 2 acres of land area.
Performance standards having to do with factors other than land, such as hours of operation, the presence of heavy trucks, workboat repairs and levels of noise and smell, were not included in the commission’s recommendations. York County Supervisor Don Wiggins voiced strong support for those standards despite York County Attorney James Barnett’s recommendation the supervisors avoid those standards due to possible conflicts with state law.
“I’d rather take the chance because I wouldn’t want to live in the neighborhood that has that stuff,” Wiggins said.
He said the standards not recommended by the commission were important to prohibit activities not compatible with neighborhoods.
“Who in the world would want to live beside a house that washes oysters right beside the yard?” Wiggins asked. “All of those things should be in there.”
Supervisor Walt Zaremba suggested inserting some of the standards into the proposal.
“Let’s put some of these in and test them,” Zaremba said. “I’m not too adverse to what Don is saying. If we find out the hours of operation is a no-no, we tested it. We tried it. We tried to be reasonable for some of these things.”
Supervisor Thomas Shepperd said he was concerned for Barnett, who would have to go to court to defend the county’s position.
“In his estimation, [the standards not recommended by the commission] weaken a particular argument,” Shepperd said. “I agree with you these are very valid concerns.”
He said rezoning the affected properties is another answer to the problem posed by potential farming activities in residential areas.
Shepperd took issue with the livestock farming proposals, saying the 100-foot setbacks were not enough to combat the odor produced by certain livestock operations. He cited hog farming as one use that creates an odor needing much more space to dissipate.
The supervisors decided to change the proposal to require a 300-foot setback from a property line and a 500-foot setback from a dwelling to raise hogs or have a feedlot. Those requirements would require a property to be about 8 acres. Poultry would require a 100-foot setback from the property line and a 200-foot setback from a dwelling.
Barnett said the General Assembly has told York County officials to use the tools available to control farming, including rezoning land and establishing performance standards. A new zoning designation was created in June to address York Point, a neighborhood in Seaford at the heart of the debate over what locations are acceptable for the land-based components of underwater farming.
The supervisors decided Tuesday to include the other standards not recommended by the commission in the proposals moving forward. Inclusion at this stage does not permanently bind those standards to the proposals.
The affected properties are located on land zoned either resource conservation or rural residential. Resource conservation is largely used for undeveloped land and public spaces like schools, however some homes are built on land with the designation. Rural residential properties constitute the bulk of the land affected by the proposals.
York County has traditionally relied on the special-use permit process to regulate commercial activities, including farming, on land in the two designations. That process allows county officials to analyze commercial operations on a case-by-case basis and present their findings to the supervisors, who then hold a public hearing before determining if a usage is compatible with a piece of property. If they decide it is, that property receives a special-use permit, which allows the property to be used for the operation.
After a pair of oyster farmers challenged the county’s use of special-use permits to govern farming activities on the two designations, the matter went all the way to the Supreme Court of Virginia, which ultimately sided with the county. But then the General Assembly passed the new law, gutting the ability of municipalities to use special-use permits as regulatory tools in farming zones.
The General Assembly has not defined what constitutes a farming zone. Barnett said Tuesday an attorney general opinion has recognized the county’s rural residential designation as a residential zone that allowed farming instead of a farming zone.
That opinion, however, is not binding. A court must analyze the issue to determine whether the two designations are truly farming zones, and cases have been filed in York-Poquoson Circuit Court seeking to do just that.
The rural residential designation stretches throughout the county. Of the 5,940 rural residential properties less than 2 acres, about 5,000 of them are in subdivisions, said Assistant County Administrator Mark Carter. He said many of those are on quarter-acre sized lots.
The proposals would leave several uses intact for the affected properties, including home vegetable gardens, backyard chicken keeping, noncommercial riparian shellfish growing, beekeeping, private kennels, home orchards, vineyards and greenhouses.
Horsekeeping would be allowed by special-use permit as long as the property was at least 2 acres, while many home businesses would also be allowed by special-use permit.
The proposals include language to allow for incidental sales of items from home gardens and similar sources without violating the county’s zoning ordinance.
Any current operations in the affected areas lawfully established would be allowed to continue if the proposals are passed. The proposals do not affect crop farming.
The York County Planning Commission will likely host a public hearing on the proposals in September. The commission could then discuss the proposals and vote on a recommendation, or it could wait until October to make the recommendation. That would allow the supervisors to host a public hearing in November and have time to discuss the issue before the new law goes into effect Jan. 1.
Related Coverage:
- York Planners Identify Potential Farming Regulations
- Supervisors Rezone York Point to New Residential Designation, Cut Farming Rights
- Planners Say No to Rezoning York Point
- York Residents, Farming Activists Spar Over Property Rights
- Greg Garrett Seeks to Clear Dandy Oyster Farm with York County
- York Supervisors to Consider Plan to Bar Farming, Accessory Apartments from York Point
- Land-Use Debate Pits York Point Residents Against Each Other
- York Planners to Study Proposed Zoning Changes That Could Erase Farming on Thousands of Properties
- Ag Bill Lessens Local Control of Aquaculture; Regulatory Options Remain for York County
