A Small Victory for Private Property, the Environment and Oysters Everywhere

Photo Credit: Fox News

Greg Garrett and Anthony Bavuso won a ruling from Virginia judge earlier this week that will allow them to continue to engage in commercial oyster farming at their York County residences. That ruling reversed an earlier Board of Zoning Appeals decision that had sided with York County in determining that Garrett and Bavuso were operating in violation of the county’s zoning code.

Unless the county chooses to appeal to the Virginia Supreme Court, both men are effectively grandfathered on the grounds that they had engaged in oyster farming before revisions to the zoning code prohibited aquaculture. The prohibition still stands for York residents who might wish to emulate Garrett and Bavuso. However, for those who wish to engage in a money-making activity at home, York County zoning does the raising of pigs, buffalo, goats and other livestock.

“Our family has asserted all along that we have had the right to grow oysters and take them to the market from our private property,” said Garrett in an email distribution. “We are so glad the Judge agreed.” Listen to his side of the legal dispute on this clip from Fox News.

Garrett’s family has been eating oysters grown in the York River since 1620. His sweet, plump bivalves, he claims on his blog, are “famous” for their mildly salty taste, a trait they get from their cultivation in the York River, the saltiest river of the Bay. The claim to fame evidently is based upon the fact that Queen Elizabeth ate them when she visited Yorktown and proclaimed them delicious.

Bacon’s bottom line: An increasing number of property owners along the shoreline of the Bay and its tributaries are establishing oyster reefs or engaging in small-scale aquaculture. News flash to York County supervisors: This is a good thing. Oysters filter and clean the Bay’s waters. They are an indispensable link in the Bay’s ecosystem. People should be encouraged to grow oysters. What are you thinking?

Update: The York County supervisors have decided to appeal the ruling, as the Daily Press reports here.

Update: Read through the comments, some from York County residents claiming to be familiar with the case. As one of them writes, “The problem arises when these guys start stacking 200 oyster cages in their yard for storage or running a pressure washer all weekend to clean the the marine life off of the cages, or shucking oysters and and piling a bunch of shells in their backyard that smell like rotting seafood.”

If the activity is creating an eyesore and nuisance for neighbors living in close proximity, York County probably has (or should have) every right to limit the activity through zoning. Clearly, I jumped the gun in writing this post.

– JAB

48 Responses to A Small Victory for Private Property, the Environment and Oysters Everywhere

  1. This is the reason why we have Dillon’s Rule. If we had the right to recall elected – for cause – like this – we’d need a lot less Dillon but right now the problem is we get a bunch of idiots elected to office and they have 4 years to jerk around citizens before they have to face them again at election.

  2. Why do you believe that the York River constitutes the private property of Mr. Garrett?

    I own bayfront property in Maryland. My ownership ends at the mean tide level in the bay. If my property extended into the Bay, I could assert my private property rights and forbid boats from traversing “my” waters or I could charge the boats tolls.

    The land next to a navigable waterway is your property. The waterway is not (with a few exceptions that have lasted from colonial days).

    I have no idea why the county has an issue with the raising of oysters. It could simply be that the county doesn’t have the means to ensure that the aquaculture is done properly. I would have concerns about aquaculture oysters raised in cages near land that is used for livestock. I am not saying that Mr. Garrett’s situation fits this scenario. I am saying that there are legitimate reasons for government to regulate aquaculture in general and oysters specifically. Oysters are one of the foods most susceptible to mishandling and can be very dangerous to eat if not handled properly.

    • There may be legitimate grounds for regulating back-yard oyster farms. But the zoning code is not the place to do it. That would be more properly handled by the Department of Agriculture, which would be in a much better position to know the issues involved.

      • I watched the video from Fox News. The county has a list of things you CAN do. Oyster aquaculture is not on the list. Ergo, the county says you can’t do it.

        Why isn’t oyster aquaculture on the list?

        If it’s because the Department of Agriculture doesn’t have regulations for oyster aquaculture then I’d agree with the county.

        The reporting on this has been shoddy. Navigable waterways aren’t the private property of adjacent landowners. Bad oysters are very dangerous to eat. No comments from the county were quoted in either the post or the Fox News video. Eating oysters that grow naturally is a whole lot different than eating oysters grown in a cage.

        • Actually these oyster farmers are leasing the river bottom from the state of Virginia who owns it. York county can’t regulate the bottom bottom of the York River because it not their jusridiction. The problem arises when these guys start stacking 200 oyster cages in their yard for storage or running a pressure washer all weekend to clean the the marine life off of the cages, or shucking oysters and and piling a bunch of shells in their backyard that smell like rotting seafood.

          There wouldn’t be a problem if they simply stored their oyster cages, washed their oyster cages, and shucked their oysters at a commercial dock or oyster packing house but they want the county to give them a conditional use permit do in in their backyard twenty feet from their neighbor’s property line. When the county rightfully denied them a permit they sued claiming that they have the right to do this in theit backyard under the “Right to Farm Act” because the USDA considers aquaculture to be agriculture which may be the case but neither of these guys lives on a “farm”.

  3. there not only ARE state-level regulations but indeed the waters of the Bay can be leased but we don’t need a different rule and law for each county to start with.

    This is why we have Dillon and not Home Rule. You have uneducated part time people attempting to govern on issues they lack the knowledge and perspective to govern on and they do so in ways
    that can be downright dumb – for four years.

    The advocacy for Home Rule is essentially an advocacy to levy taxes no matter what citizens think – it’s the opposite of property rights.

    • “You have uneducated part time people attempting to govern on issues they lack the knowledge and perspective to govern on and they do so in ways
      that can be downright dumb – for four years.”.

      Uneducated, part time people legislating?

      What the hell do you think the General Assembly is?

      “The advocacy for Home Rule is essentially an advocacy to levy taxes no matter what citizens think – it’s the opposite of property rights.”.

      Yes, Iowa and South Carolina are notorious examples of big government, high tax liberalism.

      What are you talking about, LarryG?

  4. Here is some information that describes the legitimate issus facing oyster aquaculture. The use of buoys to mark the corners of the oyster cages can cause navigational hazards to small craft operators, for example.

    http://www.gloucesterva.info/Portals/0/planning/documents/Projects/AppendixF.pdf

    Does the county have a right to ensure that landowners with docks have free access to channels? Or, should the Department of Agriculture make that decision too?

  5. Here’s an example of how oyster aquaculture permits can be used for non-aquaculture purposes by developers …

    http://www.northernneck.com/files/BluffPointOysterLetter-08-19-11.pdf

    • Note remotely comparable to Garrett’s case.

      • Why? Because Greg Garrett is a humble waterman who has harvested oysters for generations?

        http://hamptonroads.com/2011/01/feud-over-oyster-farm-turns-hotbutton-issue

        “Tommy Norment, a Republican senator representing parts of the Peninsula and beyond, stepped into a hornet’s nest when he introduced SB1190 on behalf of Greg Garrett, a real estate magnate who wants to grow oysters in cages in the waters around his $2.5 million York County mansion.”.

        Let’s see ….

        Grow the oysters and devalue the neighboring properties. Buy them at depressed prices, stop growing oysters and then sell the properties at a profit.

        Isn’t that what “real estate magnates” do?

        And York County has no right to try to keep the real estate values up so that it can preserve its tax base? Remember – Greg Garrett does NOT own the bottom of the bay where he wants to put his 1,500 oyster cages. It is not his private property regardless of your lack of understanding of the matter.

        And for LarryG …

        Norment said he’s “really a little surprised at all of the reaction” to his bill, and denied that he wrote it as a political favor to Garrett.

        “This sort of thing happens all the time in the legislature,” he said. “This is how it works.”

        “Garrett said he does contribute money to Norment’s political campaigns, but not much. According to the Virginia Public Access Project, he has donated $800 over the past 10 years. Garrett said he has never held a fundraiser for the senator but does consider him a friend.”.

        Friends doing friends favors with legislation. Your Imperial Clown Show in action. Yeah, LarryG – it’s good that a waterman like Tommy Norment is instructing the simpletons of York County in the complexities of oyster farming.

        This is just another Clown Show fiasco visited upon the good people of a locality that doesn’t want or need the Clown Show screwing things up.

        • Interesting. That sounds like classic Tommy Norment. If he’s involved, I have to say, the story might warrant deeper digging.

          As for the rest of your commentary, I’m not buying it.

          “Grow the oysters and devalue the neighboring properties. Buy them at depressed prices, stop growing oysters and then sell the properties at a profit.”

          Seriously? That’s what the York County zoning is designed to protect against?

          So, it’s OK to raise pigs on Garrett’s property but it’s a public nuisance that will hurt property values to raise oysters? Really?

          • The bay is NOT his property. Repeat that 100 times. It is as much your property as his.

            A better comparison would be if he wanted to raise pigs in a public park.

            1,500 oyster cages? With buoys? In shallow water where people have piers and boats?

            I spend a lot of time on the bay in Maryland. You want to know why real watermen don’t put crab pots where boats go? Because they are real watermen. You show them respect, they show you respect.

          • If it’s not his property, then what business does York County have regulating it through the zoning code?

        • Garrett doesn’t own the river bottom, the state of Virginia does and they have leased to to him to raise oyster on. He can put as many oyster cages as he wants out there and the county can’t do a damn thing about it. As long as he hauls the oysters to a commercial packing house to sell them he won’t have a problem with the county. The problem is that Garrett wants the county to give him a permit to processs his oysters and load them on refigerated trucks (essentially operate a commercial seafood packing house) on his lot in a residential neighborhood and they rightfully refused to permit this.

          If Garrett would just load his oysters out of the river onto a boat and haul them to one of the many commercial piers and seafood packing houses in the area where watermen offload their catch there wouldn’t be a be a problem, but the guy is a idiot.

  6. Hey Jim … I’ve got an idea. I’ll get a Christmas gift for you and LarryG. I’ll get you a monthly selection of the oysters grown by the “real estate magnate”.

    “The FDA and the health department have already told us that if there’s one case of tainted oysters being sold and someone gets sick, we’ll be hit with severe market restrictions and harvest requirements. It’s not a fabulous idea to encourage amateurs to do this.”

    You two can eat those oysters on up – especially in the hot summer months.

    “Garrett said he’s willing to scale back his oyster farm but will not abandon his plans.

    “I’m growing oysters one way or the other,” he said.

    Bull raises an eyebrow at that.

    “The laws of Virginia apply to everybody,” he said. “Even him.”

    What? The laws of Virginia apply even to friends of the Imperial Clown Show in Richmond?

    Heresy.

    • Here’s an idea — how about letting the health department regulate the sale of oysters to the public?

      • Sounds like the FDA and the health department are regulating the sale of oysters. They have informed York County that a screw up will result in “severe market restrictions and harvest requirements”.

        Does York County have a right to protect the professional watermen from York County who would be hurt by “severe market restrictions”?

        Does York County have a right to regulate business in the county at all?

  7. Oysters as a Christmas gift? Great idea! Need my mailing address?

  8. re: ” Does the county have a right to ensure that landowners with docks have free access to channels? Or, should the Department of Agriculture make that decision too?”

    so in DJ’s world, we’d have each county responsible for setting it’s own speed limits or even better it’s own laws separate from other counties with none of that nasty Dillon “interference”.

    The state should be in charge of the Bay – not 25 separate counties.

    re: “part time elected”.

    2 yrs is quite long enough in my view. Either two years or the right to recall.

    what we do not want is for people to IMPOSE their personal and political views on citizens rather than GOVERN.

    even 2yrs is not enough sometimes.

  9. re: ” Does York County have a right to regulate business in the county at all?”

    Nope. If the counties had their way some would outlaw tatoo parlors or pawn shops or aquaculture with little more than opinion in the way of justification or evidence.

    this is why we have Dillon.

    If we did not have Dillon, we’d have local businessmen serving part time on the BOS passing laws to get rid of their competitors Boss Hawg style.

    DJ seems to think the elected of NoVa deserve to have more power and more power to tax. I think if people in NoVa had more ability to get rid of those who would impose more rules and higher taxes ..bums rush style.

    If I had my druthers, I’d lock in a max tax rate at the local level with a “pinch” for inflation and then require a referenda for tax increases and more regs on business. I’d actually go for a rule that says that local elected pay 20 cents more on their tax rate and it syncs with any tax increases they vote in favor of.

    that would likely clear out much of the rif raff currently masquerading as “leaders”.

    Now don’t get me wrong, I think Romney/Ryan are way over the top on getting rid of regs and signing Grover Norquist’s idiotic idea but I do believe in keeping the elected under control and subject to recall if they decide their personal opinion takes precedence over voters.

    • “If we did not have Dillon, we’d have local businessmen serving part time on the BOS passing laws to get rid of their competitors Boss Hawg style.”.

      Yes, all the home rule states are run by corrupt local officials. Iowa, Judge Dillon’s home state, the purest example of home rule. Apparently, the good people of Iowa saw in their local judge what LarryG cannot see – a misguided friend of big government at the state level.

      “DJ seems to think the elected of NoVa deserve to have more power and more power to tax. I think if people in NoVa had more ability to get rid of those who would impose more rules and higher taxes ..bums rush style.”.

      The United States is full of very successful communities where local officials exercise considerable power. In fact, almost every entrepreneurial hot spot in America has a strong local government.

      As for Dillon’s Rule states keeping regulation in check – that’s a laugh, especially in Virginia …

      http://virginiatomorrow.com/2009/11/17/barnie-day-contemplating-suicide-and-cant-make-up-your-mind-unload-the-gun-before-reading-this/

      I am sorry LarryG but your theories just don’t hold water.

      You guys in Spotsylvania County should do whatever you want. Adopt home rule. Remain under the thumb of the General Assembly. Your call. Just leave us alone.

  10. The business community strongly supports the Dillon Rule. The Fairfax County Chamber of Commerce’s 2012 legislative program includes the following,
    “Dillon Rule Position:
    “The Fairfax County Chamber of Commerce fully supports the Commonwealth’s long successful system of requiring specific authority from the General Assembly to increase power at the local level.
    “Rationale: The Dillon Rule is key to Virginia’s future economic success because it sets an even playing field for businesses throughout the Commonwealth, as Northern Virginia is the driver of Virginia’s robust economy.”
    To me, this is a pretty strong statement that the status quo is desired – at least by those who set the Chamber’s policies.

    • Which is one reason why my company is not involved with the Fairfax County Chamber of Commerce.

      I have attended meetings of various “pro-business” groups in Fairfax County. This includes general business organizations and technology-centric organizations.

      They have universally been myopic disappointments.

      However, there is an undercurrent of less formal organizations that started in Arlington and has spread to the Dulles Corridor and parts of Loudoun. These groups are younger, hungrier, more worldly and less focused on the government trough. Usually, I appear to be the oldest person in attendance.

      These people understand the fiscal cliff. They understand that the coming dislocation of federal jobs will occasion a brief opportunity to reconfigure the NoVa technology sector from “Government Contractor of the Year” to a center for start-ups.

      It’s already happening although the dinosaurs in the Fairfax County Chamber of Commerce and the people on this blog can’t see it.

      It’s Living Social and Express Scripts. It’s Resonate Networks and SnappCloud. It’s Neustar and Zenoss.

      Only one problem – Fairfax County is rapidly becoming the least desirable location for these innovative companies. More and more are going into DC. More and more are moving to Arlington County.

      Why?

      Because DC and Arlington County are localities that chart their own course forward without waiting for the Richmond Bubbleup. Ditto for Silver Spring, Chevy Chase and Annapolis.

      Fairfax County is on the verge of an epic face plant.

      And the Fairfax County Chamber of Commerce is in the vanguard of that face plant.

  11. The advocacy for doing away with Dillon seems to be founded on the idea that the Home Rule locality will get to keep taxes that formerly went to the state.

    Not true.

    It allows more taxes at the local level but not keeping taxes that goes to the state.

    So what exactly do the “pro Home Rule” folks want?

    every one so far that I’ve heardwants to keep the taxes that go to the state and seem to have few other desires.

    There’s a good reason the Chamber – big supporters of the anti-tax crusaders Romney/Ryan is in favor of Dillon and opposed to Home Rule.

    But as I’ve said before – NoVa already has less Dillon than other counties and the right to levy taxes other localities are not allowed to with one proviso – those who would be taxed have a say in it and I’d go along with that idea. Give NoVa more Home Rule and less Dillon but keep those elected honest.

    Allow only new taxes that voters agree to and automatically sunset them so if voters think things have gotten out of hand, they can cut it back.

    so what exactly do the pro-home-rule folks want besides the ability to tax more anyhow?

    It’s hard to find any cogent thinking here.

    • “It allows more taxes at the local level but not keeping taxes that goes to the state.

      So what exactly do the “pro Home Rule” folks want?”.

      Independence from the Imperial Clown Show in Richmond.

      Is Silicon Valley the lowest tax rate jurisdiction in the US? No, it’s among the highest.

      Is Austin the lowest tax rate city in Texas? No, it is the highest.

      Do the citizens of Charlotte pay the lowest gas tax in America? No, they pay among the highest.

      So, why do Silicon Valley, Austin and Charlotte prosper?

      They prosper because they have sufficient local autonomy to create communities that attract well educated people who are entrepreneurial. It has nothing to do with tax rates. Nothing at all.

      If Virginia wants to have entrepreneurial zones it will have to let certain places chart their own course with regard to government, taxation, etc. A “Clown Show Free Zone”.

      As for home rule and overall taxation or political orientation – there is no correlation …

      Clear home rule states:

      Alaska, Oregon, Montana, Utah, New Mexico, Iowa, South Carolina, New Jersey, Massachusetts.

      Hybrid states – leaning home rule:

      California, Florida.

      Utah and Massachusetts? On the same list?

      Hey LarryG – Did Utah just pass Virginia on your vaunted “Best States for Business” list?

  12. re: ” Independence from the Imperial Clown Show in Richmond.”

    You’re as vague and non-specific as some others we know of late.

    re: low tax jurisdictions

    are you talking about state taxes or local taxes?

    and what is it SPECIFICALLY you want NoVa to have power to do?

    What I’m hearing is that you want the ability to levy additional taxes but you’re citing other jurisdictions that have the opposite.

    So what exactly are you after?

    I know of NO home rule jurisdiction that does not pay state taxes.

    do you?

    Again, what exactly do you want NoVa to be able to do that they cannot do now?

    You’re as bad as Romney/Ryan in “explaining” your “plan” here, you know.

    Anytime I hear a politician – Dem or GOP that says “trust me, I’ll tell you after you elect me – I’m not impressed.

    That alone is reason to not trust them.

    so what do you want DJ? how about some of those good old specifics?

    :-)

  13. Sorry that I came late to this cat fight and my 2 cents may get lost in the shouting…
    York County’s problem was not with the waterside; it’s what Garrett wanted to do on the land side of his property. He lives in a high-end subdivision zoned Rural Residential.
    This is what the Right to Farm Act says: “No county, city or town shall enact zoningordinances which would unreasonably restrict or regulate farm structures or farming and forestry practices in an agricultural district or classification unless such restrictions bear a relationship to the health, safety and general welfare of its citizens.”
    From what I understand, York County has no problem with oyster farming, but Garrett also wanted to process, package, and ship his oysters from a special structure erected on his property. While I have not inspected such an operation, if I owned a high end house next to Mr. Garrett or even in the subdivision, I might be concerned about a commercial operation going on next door or down the street and all of its attendant activity – hours of operation, truck traffic, etc. As most citizens do, they brought their concern to their closest elected official.
    So, if aquaculture is ultimately determined to be agriculture, Mr. Garrett or anyone else anywhere in the Commonwealth [e.g., fish farms] can have his farm structure in a residential subdivsion without any regard to his neighbors. Bosun

  14. Bosun, You advance a reasonable argument. I don’t know what Garrett is doing on the land-side of his oyster farm, but the county does have a legitimate right to limit industrial activity, even small-scale industrial activity, in a residential neighborhood.

  15. Always appreciate Bonsun’s perspective but if the facts are what Bosun says, then the county is going about this the wrong way. They should be dealing with the land-use side.

  16. larry g – They tried, but if aquaculture is agriculture, then the Right to Farm Act kicks in and they cannot do anything about the land use side. You also need to know that Garrett has been trying to amend the RTF Act for the last two years to include aquaculture. Bosun

  17. Virginia is a Dillon Rule state – until it comes to land-use and they are essentially home-rule.

    We have 100 counties and about 30 cities/towns and on a wide range of issues – counties next door to each other with similar demographics and geography can have very different rules.

    And as DJ point out, and I agree, these boundaries are historical artifacts.

    So you have these part time BOS just doing whatever they think – willy nilly no matter whether it makes any real sense nor whether it is consistent with other counties.

    Just imagine how that kind of thinking would play out in areas like education, roads, law enforcement and the courts.

    I don’t think there is as much as property rights as it is about how such rights are inconsistently and arbitrarily treated depending on where you live.

    You’d think in a place like Va – that property rights would be the same no matter where you live.

  18. re: agriculture vs aquaculture.

    In both cases, we’d be talking about a processing plant – on land.

    It would be like saying you grow corn but then you’re going to process it in a canning operation.

    there’re really two separate things.

  19. larry g – yes and no. Right to Farm Act says localities cannot “unreasonably restrict or regulate farm structures” so can you have an outright bar on a processing plant on a farm? Most farmers would say, “No!” You might be able to have some regulations, but once the product is determined to be agriculture, then what a locality can do is limited. Bosun

    • I don’t think any judge would consider that the third of an acre lot in a subdivision that Bavuso lives on to be a farm, or even Garret’s two acre waterfront lot. If either had as much as five acres of cropland or pasture not including their yard, (the minimum number of acres for enrollment in the York County Agricultural land use program) they would have a pretty good argument that they were a bonafide agricultural operation and therefore should be allowed to operate an aquaculture operation on their farm under the Right to Farm Act. Since they do not meet the minimum acreage requirements for the York County Agriculture land use program they are not farms so the Right to Farm Act does not apply to them.

  20. would probably depend on how the county defined these activities.

    this is another example of how Va is not Dillon.

  21. Neither Garrett or Bavuso live on a piece of property that cound be considered a “farm” by any stretch of the imagination. The idea that someone should be allowed to operate a commercial aquaculture business on a small lot in a residential subdivision as Garrett and Bavuso are trying to do is insane. Nobody wants to look out their window and see a stack of Oyster cages, a pile of oyster shells, or a work boat in their neighbor’s yard. If they want to run an aquaculture business they need to be on a larger tract of land, very few of which exist in York County. I have been raising millions of oysters in York County waters for over a decades on a lease that my family has had for generations and none of my neighbors have ever complained and I suspect that they don’t even know my small oyster farm out in the bay even exists. The reason…I live on a waterfront farm, one of the few farms still left in York County. Nobody can see my farm machinery, my chicken coop, my crab pots, my oyster cages, or the workboat on a trailer in my yard from their house because my neasrest neighbors are 1/4 of a mile away through the woods. I suspect that if Garrett shelled out several million dollars and bought a waterfront farm, the York County Board of Supervisors would have no problem with him running an aquaculture operation, raising cows, horses, goats, or whatever else he wants to on his farm.

  22. I think we’re getting the picture now.

    This is from the school of “it’s my property and no stinkin govt is going to restrict my rights.

    again – despite all the rancor over Va and Dillon – this is an example where local land rules are as varied as there are 133 counties and towns/cities.

    I’d rather see a state standard and then the ability for local modification per general assembly and local referenda.

  23. That is exactly what Norment tried to do under the Right to Farm Act. The problem with applying state land use standard that supercedes local zoning is that every locality is differnt. If the same standards that apply to sparcely populated rural counties applied to more surberban counties, someone could buy a 100 acre cornfield right next door to a subdivision full of million dollar homes and put in a confinement hog operation, or feedlot and there would be nothing the local government could do to stop it. While someone raising produce, growing corn, soybeans, or wheat, baling hay, or even pasturing a few cows or horses on that farm next to a neighborhood of million dollar home wouldn’t bother the neighbors too much, someone putting in a high density confinement hog operation or feedlot right next door most certainly would. That is why we need local control of zoning.

  24. well not really – when it comes to the environment.

    We tried the local approach to river pollution a long time ago and different local standards to what is dumped in a river – simply does not work.

    you need a rule that applies equally to everybody if you are going to protect a resource that is subject to the tragedy of the commons.

    air and water in the environment are not static things like land and buildings.

Leave a Reply