Supreme Court of Virginia Hears York Oyster Appeals

Discussion in 'Firmware' started by hqew2013, Nov 26, 2013.

  1. hqew2013

    hqew2013 New Member

    Though the cases are complex — they involve oysters and York County’s vision of land use versus the desires of a pair of landowners — they’ve now been reduced to a handful of definitions and interpretations.
    The two cases concerning the rights of two York County land owners to use their land as part of commercial oyster harvesting operations went before the Supreme Court of Virginia on Monday, with the argument before the seven justices focused on the definitions of terms that appear in the county’s zoning ordinance. No decision was rendered Monday as decisions are typically handed down at the end of the court’s next session. If these cases follow that pattern, a decision will come out sometime in early January.
    The cases made it to the commonwealth’s highest court after they were accepted by the justices following a pair of August 2012 decisions from retired York-Poquoson Circuit Court Judge Alfred Swersky that sided with the oyster farmers, Anthony Bavuso and Greg Garrett. In those decisions, Swersky said they did not need special-use permits to use their land to facilitate their oyster operations.
    In both cases, the dispute is not whether Garrett and Bavuso are allowed to go out on the water and collect oysters. That matter is regulated by the state, which has given its blessing to both men’s operations on the water. Instead, they are debating about a sliver of both operations: the point at which the oysters are offloaded from boats and transported on the ground at their homes. York County is in charge of regulating the land portion of Bavuso’s waterfront property in Seaford and Garrett’s waterfront property in Dandy.
    Garrett’s case is built on the notion that aquaculture is a form of agriculture. The parcel of land where his home is built is zoned rural residential, where agriculture is a permitted land use. The county’s definition of agriculture allows the raising of livestock for human food, though according to York County Attorney James Barnett, who represented the county in Monday’s hearings, aquaculture is not included in that part of the code. The only way the offloading of seafood on Garrett’s property would be permissible is with a special-use permit, Barnett said.
    Michael Ware, Garrett’s attorney, argued that an oyster is an animal and considered livestock, thus putting Garrett in a position where he can use his home to conduct the offloading. Barnett contends that the definition of livestock in the county code is, in part, “any other animal raised for food or fiber.” The definition of animal, however, is “any nonhuman vertebrate species except fish,” which seemingly neglects oysters, an invertebrate species.
    Much of the time for arguments in Bavuso’s case at Monday’s hearing was spent debating the interpretation of principal uses of land in the county’s ordinance. With a few exceptions, a principal use for a property is its primary use. For example, if a parcel of residentially zoned land has a house on it in which people are living, then the house is the principal use of the land. According to the county code, “a principal residential use shall not occupy the same lot with any other principal use.”
    Barnett argued that Bavuso needs a special-use permit to use the property as a staging area for his oyster operation. The county believes oyster aquaculture is a principal use and is thus not permitted to happen on Bavuso’s property where he also resides in a house. Barnett argued that if it isn’t a principal use, then it is an accessory use that is allowable with a special-use permit. The justices must now either side with the county, requiring Bavuso and Garrett to seek out special-use permits, or side with the residents and uphold Swerksy’s decision.
    At a few points during Monday’s hearing, York County’s zoning ordinance came under fire. Ware mentioned the “piecemeal” approach to crafting ordinances, while one of the justices said the section of the ordinance pertaining to animals and agriculture is not “very artfully drawn or created.”
    Regardless of the outcome, appearing before the Supreme Court of Virginia is an honor for any attorney. It is the highest judicial authority in the state of Virginia, and the justices decline to hear many of the cases they are asked to consider. When these cases appeared in York-Poquoson Circuit Court, they received long hearings, with openings, closings and multiple witnesses. In contrast, the Supreme Court of Virginia allowed 30 minutes per case, with each side receiving 15 minutes to make arguments and rebuttals.
    Once the court renders its verdict, the parties will have to decide what to do next with the matter. If appealed, the cases will go to the Supreme Court of the United States, which would then decide whether to hear them. Barring the matter going before the Supreme Court of the United States, the decisions rendered by the Supreme Court of Virginia in these two cases will hold sway in courtrooms throughout Virginia when localities and property owners take similar matters to court.
    Bavuso began harvesting operations in 2009, believing oyster aquaculture to be allowed by right. He remained unaware of the need for a special-use permit until he filed paperwork to grandfather his use of the land. At that point, York County Zoning Administrator Mark Carter said he would need a special-use permit due to the principal use of the property as a residence and not a business.
    Carter’s decision was then appealed to the York County Board of Zoning Appeals, which agreed with Carter. In December 2011, Bavuso applied for the special-use permit, which was recommended for approval by the York County Planning Commission, a group tasked with reviewing special-use permit proposals and determining if they align with the land’s zoning designation. Their recommendation is then forwarded to the York County Board of Supervisors, who have the authority to accept or reject a special-use permit proposal. The supervisors voted in April 2012 to deny Bavuso the special-use permit, leaving the court system as the final place for the matter to go.
    Like Bavuso, Garrett also initially applied for a special-use permit. His application went before the Planning Commission in November 2010, however they recommended that the supervisors deny the application after a group of Garrett’s neighbors expressed concerns about how the operation would affect their quality of life. In January 2011, Sen. Tommy Norment (R-Williamsburg), who wrote a letter of support for Garrett’s 2010 bid for a special-use permit, introduced legislation to the Virginia Senate that would prevent localities from having any input into whether a pcb board property owner can engage in aquaculture on waterfront property. That legislation cleared the Senate before it died in committee in the House of Delegates.
    He submitted a second special-use permit application for consideration in Fall 2011 after tweaking the plans, however he pulled the application because of a scheduling conflict, according to county staff. In January 2012, BZA decided Garrett was violating county code by operating an at-home aquaculture business without a special-use permit. By February, Garrett had filed the case in York-Poquoson Circuit Court.