Owner Can Grow Oysters in Cages

A York County-Poquson Circuit Court says a petitioner does not need a special use permit to grow oysters in cages at his residence on the waters of the York River, in a RR-Rural Residential zone, and the contrary decisions of the zoning administrator and the board of zoning appeals are reversed.

Petitioner’s residence is located in a residential district zoned RR-Rural Residential. He began raising oysters in 2009, using cages to grow the oysters in the waters of the York River. His work has been done under appropriate leases and permits obtained from the commonwealth and respondents concede the bottomlands used are owned by the commonwealth. The raising of these oysters required the use of bags and cages that need cleaning every seven to 30 days; and storage of, construction of and repair of the cages and other equipment. Respondents assert he also employs workers who are not residents on his property.

Petitioner argues he is engaged in “aquaculture” as defined by the York County Zoning Code as it existed prior to its November 2011 Amendment and his rights are to be determined by the Code as it existed prior to the amendments. He argues that “agriculture” is a permitted use under the Code, § 24-306, and that Code provisions regarding “aquaculture” are inapplicable as he does not raise his oysters in a controlled environment. Aquaculture is not a permitted use according to the Code.

Petitioner is correct. His activities are to be determined by the Zoning Code as it existed prior to the November 2011 Amendments. While it is not entirely clear that respondents applied the amendments in full as a basis for deciding this case, to the extent they did, it was error.

Petitioner is also correct that his described activities constitute “Agriculture” as defined by the Code as “the keeping of animals and fowl ….” (§ 24.1-104). Animals are defined in that section for these purposes as “all livestock and poultry.” Livestock includes “any other animal raised for food or fiber.”

Petitioner is raising animals for food and hence, comes within the definition of “agriculture” (See Bavuso v. Carter [VLW 012-8-156]. His activities do not constitute “aquaculture” because the evidence clearly and unmistakably shows his activates are not within a “controlled environment to enhance growth or propagation.” Likewise, his activities do not constitute a Home Occupation use under § 24.1-104). There is no evidence that, despite the breadth of petitioner’s activities, his dwelling is in any way used in this operation.

Opinions of the zoning administrator and BZA are reversed.

Garrett v. Carter, Zoning Adm’r (Swersky) No. 12-4495, Oct. 12, 2012; York-Poquson Cir.Ct.; Michael B. Ware for petitioner; James E. Barnett Jr. for respondents. VLW 012-8-158, 2 pp.