Amanda Kerr
YORK — What is an animal and is aquaculture a form of
agriculture? Those were two key questions a judge must determine in a land use
case between York County and a Seaford resident who asserts he can
have a commercial oyster farm at his home without permission from the county.
After more than an hour of testimony and arguments Wednesday
in York-Poquoson Circuit Court, Judge Alfred
Swersky deferred ruling to review case law as well as state and local laws.
Seaford resident Anthony Bavuso filed his appeal in February
after both York County Zoning Administrator Mark Carter and the York County
Board of Zoning Appeals said Bavuso could not operate a commercial oyster farm
at his home in the York Point subdivision without a special use permit.
Carter along with York County and the York County Board of
Supervisors are named in the appeal.
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Bavuso's argument centers on the county's table of land uses
which lists aquaculture and farming as permitted uses in the zoning district
where Bavuso lives. The appeal also claims that commercial oyster farming is
protected under Virginia's Right to Farm Act which restricts localities from
enacting zoning ordinances that prevent farming including requiring a special
use permit.
During the hearing Wednesday, Bavuso's attorney Scott Reichle
focused his arguments on the county's definitions of animal and agriculture.
The county defines an animal as any vertebrate species except fish. An
agricultural animal is defined as all livestock or poultry, with livestock
including horses, ponies, bison, cattle, sheep, goats, alpacas, llamas or
"any other animal specifically raised for food or fiber."
York defines agriculture as the use of land for a bona fide
agricultural operation. York can only regulate activities on land, which
includes the docking of a workboat and offloading of the seafood.
The Virginia Marine Resources
Commission regulates oyster aquaculture in the state's rivers.
Michael Osterling, the executive director of Shellfish
Growers of Virginia, testified that in his opinion aquaculture is a form of
agriculture.
"Oyster aquaculture is comparable to any type of land
agriculture with privately owned ground with seed that is planted, maintained
and harvested," he said.
Carter testified that whether an oyster is an animal or
aquaculture is agriculture is moot.
"Whatever you call it, he needs a special use permit to
offload it," he said.
While the table of land uses does list aquaculture and agriculture
as permitted uses for Bavuso's property, Jim Barnett, county attorney for York,
explained that because the primary use of Bavuso's property is residential he
needs a special use permit for the oyster farm as a home occupation.
Reichle said based on Barnett's argument, Bavuso could have
an oyster farm if he "bulldozed his house." Reichle also asserted the
Right to Farm act would trump the special use permit requirement for a home
occupation.
After the hearing, Reichle said it is likely the judge will
issue a written opinion instead of holding another hearing to issue a ruling.
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