FOR IMMEDIATE RELEASE
Anthony Bavuso, eating a fresh oyster
In a major victory for Farm-to-Consumer Legal Defense Fund member Anthony Bavuso, a York County Poquoson Circuit Court Judge has ruled that the Virginia Right to Farm Act and a state zoning law prohibited York County from requiring Bavuso to obtain a special use permit in order to conduct oyster farming on his property. Bavuso and the York County Board of Supervisors (BOS) have been locked in a four-year battle over whether the farmer has the right to operate his oyster business on his land.
Bavuso lives on the same property where he has his oyster farm. In November 2011, the York County Zoning administrator issued a determination letter stating that the county zoning code prohibited a farm and residence from existing on the same property under the zoning classification applicable to Bavuso’s land unless a special use permit was obtained to farm.
Bavuso simultaneously applied for a special use permit from the BOS while appealing the determination letter to the York County Board of Zoning Appeals; the BOS refused to issue Bavuso the permit, and the board denied his appeal. Bavuso then appealed to court and eventually the York County Poquoson Circuit Court overturned the administrator’s decision in November 2012 holding that the county zoning code did not require Bavuso to have a special use permit. The county appealed that ruling to the State Supreme Court which reversed the Circuit Court decision in January 2014.
Later that month, Bavuso filed a new complaint with the York County Circuit Court seeking a ruling that the county zoning code violated the Virginia Right to Farm Act; the Court finally issued its ruling in the suit on July 14, 2015, in favor of Bavuso.
In his opinion, Judge Alfred D. Swerksy found that since the zoning classification of Bavuso’s property allows agriculture as a “by-right use”, both the State Right to Farm Act and the relevant state zoning law (Title 15.2, Code of VA., 52288) prohibited any locality from requiring a special use permit for production agriculture “in an area that is zoned as an agricultural district or classification.” The judge held that any area where agriculture is allowed by right constitutes an “agricultural district or classification.” The judge also noted that the zoning law’s definition of production agriculture included aquaculture.
The Right to Farm case is not the only litigation Bavuso has against the BOS. The farmer also has a lawsuit against the county for rezoning his farm. In June 2014, the BOS took action to rezone only the neighborhood (York Point) where Bavuso lives in Seaford, Virginia; in his suit Bavuso is claiming the county illegally spot zoned his property. It is unclear at this time what effect Judge Swerksy’s decision will have on the spot zoning case.
The BOS has 30 days to appeal the judge’s ruling.
The Farm-to-Consumer Legal Defense Fund provided funding for expenses in Bavuso’s Right to Farm case.
Congratulations to Anthony Bavuso for persevering and for his victory. Congratulations to attorneys Gina Schaecher and Scott Reichle for their excellent work in the case.
Pete Kennedy, Esq., President
Farm-to-Consumer Legal Defense Fund
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