The York County Board of Supervisors is threatening the livelihood of oyster farmers.
Zoning is a popular way for counties to control where and how things are bought and sold. Zoning ordinances can often dictate whether people can work, live and play in the same neighborhood. The details of zoning are excruciatingly complex leaving people unable to respond in a timely manner. The enforcement of zoning regulations involves heavy fines and/or incarceration. In short, zoning has been a terrific way for counties to control people’s lives.
Such is the story of oyster farmer Anthony Bavuso and his family. After years of working corporate and office jobs, Bavuso and his wife took a short hiatus from the day-to-day drudgery and returned with a new perspective: they wanted to become contributors to the economy of raw materials by producing something that people needed.
Bavuso moved his family back to their homestate of Virginia with the dream of becoming food producers. Having access to a waterfront property, and a background in oyster gardening, it made sense to start an oyster farm. Like other types of farming, oyster farmers have to manage the growth of their oysters—a labor-intensive process requiring a high level of experience. An added benefit, for Bavuso, was the knowledge that oysters clean the water. As a lifelong Virginian, the health of the Chesapeake Bay is never far from his mind. (Oysters eat algae, which proliferates in the pollution of the bay, and turn the algae into usable protein for humans.) So the Bavuso family started Seaford Oyster Company.
In the zoning ordinances, York County Virginia, where Bavuso lives and farms, has a list of things that are allowed and if an activity is not on the list, they prohibit it. Penalties include steep fines and possible incarceration. Small changes to the zoning ordinances are threatening a family’s livelihood.
Arbitrary Zoning Changes
In 2010, Bavuso followed regulatory procedure within his zoning district for an oyster farm. He established a lease with the commonwealth of VA that gave him the “rights” to the section of the bottomland in the Poquoson River adjacent to his property. (The bottom lease gives farmers access to shellfish only.) Additional regulations and permits involved food safety. Wanting to show his interest in producing the safest food possible, Bavuso complied with the entire permitting process.
Prior to starting the farm, the family looked at this list of zones and restrictions. In his zone, there farming is “permitted by right.” This means for people to farm their land, they need no additional land use permits from the county. According to the definition of aquaculture in the code, what Bavuso is doing is considered part of what is “permitted by right.”
After more than a year of farming, refining his expertise and growing his customer base, in 2011, Bavuso read in a local paper that the county was planning on rezoning to remove agriculture activities from Bavuso’s “zone.” A “zone” is any area that the county designates. Within each zone, the county stipulates what particular activities can take place. Once designated, the county applies regulations and restrictions. For example, one common zoning requirement is that if an area is zoned for residential building, there are restrictions and regulations determining how from the property line a structure can be built.
Bavuso wanted to make sure that he would be grandfathered in and that these changes would not affect his farming operation. He didn’t know it at the time, but there was another farmer in the county too and this rezoning was a political vendetta against the other oyster farmer for supporting a challenger to the currently elected county Board of Supervisors (BOS). And so began what would be at least 3 years of limbo for a peaceful man and his family.
Bavuso and his attorney began this process of jumping through all the hoops to maintain the farm. The county told him that he would need a “special use permit” in order to keep farming on his own land. Bavuso did not think this was correct based on the published zoning ordinances, and so, in 2011 Bavuso went to the circuit court and asked the judge about the special use permit. The judge agreed with the Bavuso’s that they did not need the special use permit. The county appealed, and the Supreme Court of VA interpreted the zoning ordinance to say that they could not have a farm and a farmhouse on the same lot—essentially requiring the special use permit despite the code in the zoning ordinance.
In the 1980s the Virgina General Assembly passed a statute called the “Right to Farm Act.” The right to farm act limits counties’ ability to restrict agriculture activities. Specifically, it precludes local governments from requiring special use permits for farming. So when the county told him to get the special use permit, he said he didn’t agree with it, but that he would apply for it anyway. He went to the planning commission and they voted unanimously and the county wrote a report saying that he should be able to continue with his oyster farm. Thwarting that, the board of supervisors, on a Tuesday night meeting on April 17, 2012, voted 3-2 that they would not grant the special use permit. Three people on that board decided to shut down his business after two years of his operating successfully and providing something that people need and want.
The special use permit cost the Bavuso’s an additional $600 just to get the county’s permission to use their own property.
Bavuso filed suit against the county on January 31, 2014. He filed a “complaint for declaratory judgment.” asking the judge to interpret the law and tell him what it means. The county filed a motion to dismiss that. In their motion to dismiss it, they argued that this has already been before the court and that the court had decided on this already. As of May 12, 2014, the judge has not ruled on this hearing yet.
On April 4, 2014, York County filed suits against Bavuso personally, his wife and his business for not having the special use permit. This occurred three days after the governor signed a bill saying that counties cannot require a special use permit for aquaculture. The hearing for this was on April 28, 2014 and the judge has not ruled on it yet.
To heighten the irony of this situation, Bavuso’s farm is minutes away from where the British surrendered to Washington during the Revolutionary war. The town hall handing down these draconian regulations is on the same ground where men bled and died to win freedom from such oppression.
Meanwhile, as this progresses through the halls of bureaucracy, Bavuso is continuing his oyster farm saying that he is not defying the law by simply producing food on his own land that he has a right to.
The Political Vendetta…
Another oyster farmer, Greg Garrett, politically supported the challengers to the currently elected BOS. Bavuso has gotten caught up in that because he does not agree with what the BOS is doing. They have transitioned from being servants of the people to rulers of the people. Bavuso has been vocal about that and now he is convinced they are attacking him, personally.
York County is moving ahead with the proposed zoning revision in response to House Bill 1089 becoming law in March. HB 1089 goes into effect January1, 2015 and would prohibit the county from requiring Anthony to have a special use permit. The county was also worried about the Boneta bill (SB 51) which limits the county’s ability to require permitting for activities on agriculturally zoned land. That bill goes into effect on July 1, 2014.
Several of the proposed zoning changes affect thousands of people. While these proposals are still on the table, in a May 6, 2014 hearing, the county Board of Supervisors has decided that they are going to move forward with rezoning Bavuso’s neighborhood.
The details of law used by some to control others can be quite dizzying. In a land of invasion of privacy, censorship and extreme police aggression, food control is an obvious next step. The systems in place constrain producers to the point that drives them out of production. Together, we can support our food producers who support us. Join Anthony, his family and his neighbors at a peaceful “pitchfork” protest on May 14, 2014 when the York County Planning Commission meets to discuss the proposed changes. There will be an opportunity for public comment. Numbers are critical.
Farming rights organization, the Farm To Consumer Legal Defense Fund, is supporting Bavuso with legal fees.
Wherever you are in your personal journey toward clean living and local food, thank you for joining me in mine. I look forward to sharing it with you.
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