York Oyster Committee Recommends Wait and See Approach

By Sam Thrift Friday, November 04, 2011

Fear of the unknown set the stage for most of the conversation at the York County Planning Commission’s special agriculture and aquaculture committee last night. Created to discuss proposed changes to the zoning ordinances, the group decided the future of the Right to Farm Act would determine what actions they would recommend to the Board of Supervisors.

After a 5-hour meeting Oct. 14 (read about that meeting here), the Planning Commission decided to discuss restricting commercial agriculture and aquaculture in certain residential areas in more detail and with assistance from experts on the topic. Commissioners Sean Fisher, Mario Buffa, Chris Abel and Mark Suiter invited waterfront property owners Anthony Bavuso, Dick Hixson (a retired York County School Division assistant superintendent), oyster farmer and Realtor Greg Garrett and his neighbor Tim McCulloch (read about Garrett’s initial proposed oystering operation here, and his revised proposal here) to be part of the committee.

York County staff proposed changes that would remove commercial aquaculture and agriculture as permitted uses in the rural conservation district  (generally, residential parcels of five or more acres) and also remove agriculture from the rural residential (generally, at least an acre for a residential lot) district.

According to the committee, the changes were in response to Sen. Tommy Norment’s push to pass Senate Bill 1190 in the General Assembly last February. That bill proposed amending the Right to Farm Act to give the state more control when it comes to agriculture. Norment said he proposed the bill at Garrett's request. The bill made it through the Senate, but was tabled in a House committee. Read more about the life of the bill by clicking here.

The committee was not only concerned about the power the Right to Farm Act will take from localities, which includes the county's ability to grant Special Use Permits, but also the fact that the county does not know what exactly would be included in the bill. York County Attorney James Barnett said the language in SB1190 could change by the time it is passed – if it is passed - but its current restrictions would make it difficult for residents to prove their neighbor’s commercial activity is a “nuisance” as long as they are following the prescribed best management practices.

“What are the best management practices and who establishes them? That’s the million-dollar question,” Barnett said. “How can we measure words such as ‘excessive’ and ‘should’?”

Barnett reminded the committee if York County doesn’t take action before the bill is enacted, then the county would be stripped of the right to regulate anything that is under the umbrella of the act. The only exception is that the bill, as previously proposed, would allow localities to “adopt setback requirements, minimum area requirements, and other requirements that apply to land on which agriculture activity is occurring.”

“The uncertainty that the 1190 bill will become a law scared the living daylights out of the Board of Supervisors,” commissioner Chris Abel said. “Has any effort from anyone who brought the bill tried to solve or withdraw the problem?”

The majority of the committee credited Garrett for their current situation, saying SB1190 is forcing them to act and questioning if the Realtor had talked to Norment about the issues the bill was causing. Garrett said he told Norment that he didn’t think SB1190 was the correct way to solve York County’s problems.

Garrett and Anthony Bavuso told the other members of the committee that the threat the county felt from the bill was not a good enough reason to recommend such zoning changes that would affect a large number of residents. According to Assistant County Administrator Mark Carter, 26 percent of the York County shoreline is public property, with 130 parcels along the shoreline in the Seaford area (90 with residents and 40 without).

Garrett tried to dismiss any “fears” that may have been presented in response to his proposal to harvest oysters from his Dandy waterfront home. He said York County’s reaction to the noise, smell and aesthetic concerns presented by his neighbors about his commercial oyster farming business are too restrictive.

“We are using a pile driver to kill a fly and the fly hasn’t even been proven to be bad yet,” Garrett said.

Jim Wesson of the Virginia Marine Resources Commission supported Garrett’s claims that noise and smell are rarely an issue for residential oyster farmers, adding that there are a higher percent of growers that are working from residential zones, even though the volume of oysters might not be as high as in commercial zones.

Wesson said no other localities are considering the restrictions that York County is suggesting. When asked if other localities showed any concern about SB1190, Barnett said other localities don’t face the same issues when it comes to agriculture and aquaculture because of the amount of York County shoreline.

Garrett has told neighbors he's been growing between 400,000 and 500,000 oysters in water off his property for most of 2011. John Bull, a spokesman for the VMRC, said earlier that Garrett's proposed operation would be among the largest in the Chesapeake Bay.

“I think there were a lot of misconceptions that we shattered tonight,” Garrett said. “We heard from Mr. Wesson that most of the landing points [for oyster farmers] are in residential areas and there is virtually no smell or noise complaints.”

The commissioners agreed that oyster farming is great for cleaning the bay, and they would have recommended leaving zoning laws as they are now but for the uncertainty of the Right to Farm Act. That threat of lost local power created pressure to seek zoning changes that would preserve local control.

The committee decided to recommend to the Board of Supervisors that they defer their decision on the zoning changes until SB1190 – or a bill like it - is passed. If the legislation is passed, then the Planning Commission will revisit the topic and adjust their recommendation depending on the wording of the signed bill.

“If 60 days from now the bill is ready for the Governor’s signature, I’ll be the first in line to say please, please, please put [the recommendation] back in front of us,” Abel said.

Most of the committee is confident the bill will be passed in February or March, giving York County until July to change zoning ordinances before the state law takes effect.

“Senator Norment is going to have this bill passed,” Hixson predicted. “We will be back here in March, and you can put that on the record.”

Fisher reminded the group that the public will be given the opportunity to speak at the Planning Commission meeting on Nov. 9 to voice any concerns about proposed changes to the county's zoning of agricultural uses. The group will also be discussing chicken-keeping. Click here to learn more.