Seaford Oyster Farmer Moves Forward with Suit Against York County

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Anthony Bavuso has been operating Seaford Oyster Co. since 2010. Photo by Julie Reichle.

Anthony Bavuso has been operating Seaford Oyster Co. since 2010. Photo by Julie Reichle.

By Shelby Mertens

York County oyster farmer Anthony Bavuso’s lawsuit against his county’s special-use permit requirement will move to the York County-Poquoson Circuit Court, after the county attempted to dismiss the case.

The case revolves around the question of whether York County’s zoning ordinance, which requires those who engage in agricultural or aquaculture activities to obtain a special-use permit, is in violation of the Right to Farm Act in the Code of Virginia. The Complaint was filed on Jan. 31, 2014.

“We are thankful we will now find out how the Right to Farm Act can protect local farmers like us,” Bavuso said in a statement. “We look forward to continuing to provide fresh local oysters to our community.”

The Right to Farm Act states that “no county shall adopt any ordinance that requires that a special exception or special-use permit be obtained for any production agriculture or silviculture activity in an area that is zoned as an agricultural district or classification.”

Bavuso’s property is located in a Resource Conservation (RC) zoning district. He has been operating Seaford Oyster Co. since 2010.

In the past General Assembly session, House Bill 1430 would have amended the Right to Farm Act by expanding the definition of agricultural operations to include “commerce of farm-to-business and farm-to-consumer sales,” as well as the right to sell other related items.

The judge will have to interpret the Code of Virginia and if it applies to York County’s zoning ordinance.

“We’re asking the judge to make a determination of our rights under the Code of Virginia,” Bavuso said in an interview. “From my reading, the code prohibits counties from requiring special-use permits, but the county is requiring them anyway.”

Anthony Bavuso, on the boat, is heading out to his oyster farm to the left. Photo by Elyse Pyle.

Anthony Bavuso, on the boat, is heading out to his oyster farm to the left. Photo by Elyse Pyle.

Bavuso has been battling York County over his right to engage in oyster farming since the board of supervisors changed the definition of agriculture to exclude aquaculture in 2011. The county has sued both Bavuso and fellow York County oyster farmer Greg Garrett for continuing their operations without a special-use permit.

York County asked the court to dismiss the current case, but the judge denied the request.

York County Attorney James Barnett said the reason why the county tried to dismiss the case is because they believed Bavuso was trying to raise questions that were already answered in the previous case, which was settled by the Virginia Supreme Court.

The Supreme Court sided with York County, agreeing that localities have the right to require a special-use permit for aquaculture operations.

Bavuso said this new case differs from the previous suit because the prior case was a petition for a writ of certiorari regarding the meaning of the York County zoning ordinance.

“We were seeking the court’s interpretation of the meaning of the county’s ordinance and since that issue has been settled by the Supreme Court of Virginia, we can now ask if the ordinance violates the Code of Virginia,” Bavuso said.

Barnett said the county is arguing that the state statues do not apply to aquaculture.

“We think that the two state statues in question do not apply to aquaculture,” Barnett said. “The attorney general was asked about it a few years ago and he agreed that it didn’t apply to aquaculture.”

Bavuso is arguing that aquaculture is agriculture and that an oyster is an animal.

Barnett said there are several elements in the case to go over that are up for interpretation, which he said could mean a lengthy trial.

The trial will include determining whether or not aquaculture is agriculture.

The trial will include determining whether or not aquaculture is agriculture. Photo by Liz Reitzig.

“It’s probably going to take a while,” he said. “We’ll go forward and we’ll go forward with the law.”

Bavuso and constitutional attorney Mark Fitzgibbons believe courts almost always favor counties in zoning disputes.

“In a situation where you’re dealing with the interpretation of local zoning ordinances, the tables are turned against you specifically,” Bavuso said. “That’s something that Mark and I have been trying to change.”

Fitzgibbons said that while “innocent until proven guilty” is the principle held in the American judicial system, the opposite occurs in local zoning disputes in Virginia, or what Fitzgibbons calls “guilty until proven innocent.”

“When citizens believe that counties have violated their rights, the law is set up in favor of the counties and they are able to enforce ordinances in ways that don’t accord full due process rights to citizens,” Fitzgibbons said. “For example, in the administrative process, it is presumed that the zoning official is right and the citizen is wrong.”

Fitzgibbons said the reason why courts tend to favor counties in zoning disputes is because in Virginia, localities get all of their powers from the state.

Although Bavuso has not written the briefs on the merits of his case yet, some are suggesting that the Dillon Rule may help Bavuso’s case.

The Virginia Supreme Court adopted the Dillon Rule of statutory construction before the turn of the 19th century. The Dillon Rule is used when interpreting whether a local government has a certain power by law. The rule is that a local government does not receive the benefit of the doubt if there is a question over a localities’ right to power or authority.

When asked about the Dillon Rule, Barnett said the county would certainly honor the Virginia Code, which states that localities may not require a special-use permit for production agriculture in an agricultural zone, but that the definition of  “agricultural production” needs to be determined, which the county believes does not include aquaculture.

Fitzgibbons said the Virginia Code that delegates zoning powers to counties is broad and provides few controls on county governments, which he said can result in abuses of zoning power. He also said there are many challenges with interpreting the Code of Virginia.

“Number one, it gives too much discretion to local governments and how they enforce zoning powers and it enables counties to use zoning powers to actually violate property and other constitutional rights of citizens,” he said. “Also, the second concern is that counties lack consequences when they either exceed their authority or they violate the rights of citizens.”

Bavuso and Fitzgibbons have been advocating for a remedies legislation to create an equal playing field. Fitzgibbons said remedies would mean that citizens would be able to file lawsuits and, if found harmed, the county would have to compensate citizens for their harm and pay the attorney fees.

A bill in the past General Assembly session, House Bill 1219, sponsored by Delegate Bob Marshall, R-Manassas, would have provided such remedies, but the bill failed to pass. The original “Boneta Bill” from the 2013 General Assembly session, which Fitzgibbons helped draft, also included remedies, but failed to muster enough support.

“Right now there are no real consequences for county governments who intentionally violate the rights of citizens,” Fitzgibbons said. “Just like when citizens violate the law, there are consequences. So when local governments violate the law, there should be consequences.”

A trial date for the case has not yet been set.

Shelby Mertens

About Shelby Mertens

Shelby Mertens is a recent graduate of Virginia Commonwealth University with a degree in Mass Communications - Journalism. She was the arts and culture editor of The Commonwealth Times, VCU's independent student press. Shelby was a blogging and social media intern for Gandzee, an online retail startup in Richmond. She covered the General Assembly session last spring for Capital News Service on behalf of over 70 news publications across the state. She has also published work on WTVR-CBS 6's website, a part of the iPadJournos project at VCU.