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No ‘Special Use’ Permit for Oyster Farmer

A York County-Poquoson Circuit Court overturns a zoning decision that required petitioner to obtain a special use permit to use his private residential property for oyster farming.

Petitioner’s residence is located in a residential district zoned RC-Resource Conservation. He began raising oysters at the property in 2010. On Nov. 4, 2011, the York County zoning administrator determined petitioner required a special use permit to operate his business at his residence. The administrator based his determination on Section 24.1-200, which provides that a principal residence use shall not occupy the same lot with any other principal use (emphasis added by court). He determined that since two principal uses are not permitted, petitioner must obtain a special use permit to authorize “Docking workboats and off-load seafood” pursuant to § 24.1-283 (Home Occupations). The Board of Zoning Appeals upheld that decision.

Petitioner argues that he is engaged in activities that are permitted in the RC-Resource Conservation Zone pursuant to the table of uses found at § 24.1-306 and that permitted uses specifically do not require a special use permit. He further argues that the zoning administrator exceeded the authority give to him to interpret the Code when he determined that a “permitted use” in the table was a “principal use.”

Petitioner is correct. “Principal use” is defined (§ 24.1-204) as “The primary or main use of land or structures, as distinguished from a secondary or accessory use.” Nowhere in the Code is there an express statutory provision stating that “permitted” uses are “principal” uses. Respondent relies on a provision in the Code that states when tables and diagrams conflict with text in the code that text prevails. That section is inapposite as there is no conflict between the table describing permitted uses and the text definition principal uses. There is no indication of a statutory intent that the two be defined as one and the same. Although petitioner has not raised the ambiguity of the ordinance, one can only speculate as to how there could be two principal uses of property as defined in § 24.1-200.

Further, inconsistencies between prior rulings and the ruling here indicate an arbitrary decision by the administrator and the board.

Since petitioner is engaged in a permitted activity, i.e., one that does not require a special use permit, the rulings of the zoning administrator and the BZA will be reversed.

Bavuso v. Carter, Zoning Adm’r (Swersky) No. 12-4545-00, Sept. 12, 2012; York-Poquoson Cir.Ct.; Scott L. Reichle for petitioner; James E. Barnett Jr. for respondent. VLW 012-8-156, 4 pp.

VLW 012-8-156

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