Agriculture, aquaculture debated in land use case

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.

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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