Appeals Granted

Case

J. MARK CARTER, ZONING ADMINISTRATOR FOR THE COUNTY OF YORK, ET AL. v. ANTHONY T. BAVUSO, ET AL.
(Record Number 130143)

From

The Circuit Court of York County; A. Swersky, Judge.

Counsel

James Earl Barnett, Jr. (County Attorney) for appellant.

Scott L. Reichle (Patten, Wornom, Hatten, & Diamonstein, LC) for appellee.

Assignments of Error

1. The Circuit Court erroneously determined that Mr. Bavuso’s oyster aquaculture is not a “principal use” of the property within the meaning of § 24.1-200 of the County’s zoning ordinance, which provides in part that “a principal residential use shall not occupy the same lot with any other principal use.” Alternatively, the Circuit Court erred in failing to recognize that if Mr. Bavuso's oyster aquaculture is not a “primary” use under the zoning ordinance, it must be permitted under the ordinance if at all either as a permitted residential accessory use (which the ordinance does not allow), or as a specially permitted use under section 24.1-283(d).
2. The Circuit Court erroneously ignored the County zoning ordinance definition of “animal,” which is “[a]ny nonhuman vertebrate species except fish” (York County Code § 24.1-104, definition of “animal”), instead incorrectly stating that the definition includes “all livestock and poultry” including non-vertebrate species such as oysters. The Circuit Court therefore incorrectly concluded that the land-based aspects of oyster aquaculture therefore simultaneously constituted both “agriculture” and “crop/livestock” farming within the meanings of the zoning ordinance, despite the plain intent of the zoning ordinance to treat the two uses as distinct.
3. The Circuit Court erroneously relied on a November 30, 2011, opinion from the Zoning Administrator to a Mr. Greg Garrett (not a party to this action) that a worm farm begun by Mr. Garrett constituted an agricultural use under the County’s zoning ordinance, when the evidence showed that the opinion was rendered subsequent to the amendment of the ordinance definitions of “agriculture” and “livestock” on November 16, 2011, and should have had no application to this case.
4. Because of its erroneous understanding of County Code § 24.1-200, the Circuit Court erred in its failure properly to apply York County zoning ordinance § 24.1-301, which states in relevant part that “[i]n the event of conflict between the [Table of Land Uses] and the text of this chapter, the text shall control.” The Circuit Court thereby failed properly to apply County Code § 24.1-283(d), which imposes the SUP requirement for the docking of workboats and the offloading of seafood in the RC zone.
5. The Circuit Court erred in ruling that the Zoning Administrator has been arbitrary in allowing farmhouses as an accessory to crop/livestock farming, but not as an allowable second primary use in connection with a commercial aquaculture use, and as a consequence ruling further that Mr. Bavuso’s residence could coexist on the property with the oyster-raising operation, just as farmhouses have been allowed by administrative interpretation to exist on the same parcel as an active land-based farm.
6. The Circuit Court erroneously ignored the specific requirement for a SUP for the docking of workboats and the offloading of seafood set out in County Code § 24.1-283(d).

Date Granted

  5-28-2013