Judge Delays Ruling in Bavuso Oyster Case

August 30th, 2012 by Amber Lester

A judge delayed ruling Wednesday whether oyster farming could be considered an allowable agricultural activity in York County.

Judge Alfred Swersky, a civil dispute professional with Richmond-based The McCammon Group, told the lawyers for plaintiff Anthony Bavuso and defendant York County that he would need more time to read their evidence before issuing a ruling.

Bavuso, a resident of the York Point neighborhood, believes the county’s ordinance allows him to farm oysters by right, without need for a special use permit. He filed his appeal with the Circuit Court before the Board of Supervisors reviewed his SUP request, which was denied in April.

Bavuso is challenging York County’s definitions for “animal” and “agriculture.” The county defines an animal as as a nonhuman vertebrate species and before November 2011, defined an “agricultural animal” as any animal specifically raised for food or fiber.

It defines agriculture as, “The use of land for a bona fide agricultural operation involving the production for sale (but not the processing) of plants, animals, and agricultural products useful to man and including tilling of the soil, the raising of crops, horticulture, the keeping of agricultural animals and fowl, dairy and poultry operations, or any other similar and customary agricultural activity, but not aquaculture, and including the customary accessory uses which are normally associated with agricultural activities. Fruit, vegetables, eggs and honey are deemed agricultural products only prior to processing of any kind other than washing.” The new version says agriculture is the use of land involving the production for sale, but not processing, of plants, animals and agricultural products useful to man. The new definition also added the clause, “but not aquaculture.”

Bavuso’s lawyer, Scott Reichle, argued Wednesday that an oyster should be considered an animal and as livestock. Because York County allows the raising of livestock for food in resource conservation areas by right, he argues Bavuso should be able to farm oysters without a permit. He further said Bavuso should be grandfathered under the previous ordinance.

Bavuso began harvesting oysters in 2009 and has a permit from the Virginia Marine Resources Commission. Zoning Administrator Mark Carter informed Bavuso he needed a special use permit when Bavuso filled out paperwork to grandfather his use of the land.

In December 2011, the York County Planning Commission unanimously approved Bavuso’s Special Use Permit request to farm oysters as a home occupation on his 0.3-acre waterfront property. At that time, no residents opposed the request, and Bavuso shared four letters of support from neighbors. Later, some York Point residents said they were under the impression his oyster activity was a hobby.

When the Board of Supervisors reviewed the request, Carter explained a special use permit was required in the resource conservation district for any home occupation that wasn’t located inside a dwelling, and also was required for the offloading of seafood, docking of workboats and employment of nonresident workers.

After hearing from several residents who opposed a commercial business in their neighborhood, the board members voted 3-2 to deny the SUP request. Board Chair Tom Shepperd and member George Hrichak dissented.

On Wednesday, Reichle made his case that oysters are considered animals, and if farmed, should be considered livestock.

He summoned aquaculture expert Michael Oesterling, the executive director of the Shellfish Growers of Virginia, to the witness stand to answer several questions about how oysters could be defined and how the oyster farming process differs from the work of watermen. Farmers typically grow their oysters from seed in cages, then harvest them on boats or on docks. Watermen harvest wild oysters, often clustered, from boats on the water.

Oesterling said he believes oyster farming is an agricultural activity, and confirmed he would consider it both aquaculture and agriculture.

Reichle then asked Carter to take the stand and pressed him to share his opinion of whether the ordinance could be interpreted to include oysters as animals or livestock. Carter refused to offer a personal opinion, but said it is the county’s stance that the definition of agriculture never included aquaculture. He said the key issue for the county is that Bavuso needed a permit to offload seafood catches onto his property.

“If your argument is that it is agriculture, it needs to be crop and livestock,” Carter said. “Our contention is that an oyster is not livestock.”

Reichle suggested the county has not been consistent in its application of the definition of “animal.” He introduced evidence that Carter told a resident that worm farming and chicken keeping constituted agricultural activity. Worms, Reichle pointed out, are invertebrates.

Carter responded that research of existing codes in the state showed precedent for considering worm farming agricultural activity.

In his final argument, Reichle said an oyster is an animal, raised for food like livestock, and oyster farming is therefore allowable as an agricultural operation. He argued the county needs to be consistent about how it allows residential and commercial uses to commingle, noting the county does not consider a farmhouse on a farm to be two separate land uses.

Swersky asked how Bavuso would get permission for the use of boats and docks if he ruled that oyster farming fit into the agriculture definition. Reichle said in that instance, the county couldn’t require an SUP for agricultural use of the property, and it would not longer be an issue.

In his closing arguments, Barnett cited a legal precedent that determined a term, once defined, has the same definition wherever it appears in a document — in this case, the zoning ordinance. He added that when the county first added definitions of domestic animals, it specifically left fish and shellfish out of the description.

“We understand the oyster is an animal for Webster Dictionary purposes, but the Board of Supervisors chose to exclude fish and shellfish,” Barnett said.

He added that Attorney General Ken Cuccinelli issued an opinion that aquaculture does not constitute an agricultural operation in the Right to Farm Act. He concluded by saying, “There is nothing in the Code of Virginia that does not allow the county to do what it wants [regarding definitions].”

The issue of oyster farming will come up again in York-Poquoson Circuit Court at 9 a.m. on Friday, when the court will hear Greg Garrett’s appeal of a decision by the Board of Zoning Appeals to uphold York County’s notice of violation. In that case, Garrett was notified he was operating an oyster farming business without a permit. Read more here.

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