Appeals Granted

Case

J. MARK CARTER, ZONING ADMINISTRATOR FOR THE COUNTY OF YORK, ET AL. v. GREGORY M. GARRETT, SR.
(Record Number 130144)

From

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

Counsel

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

Robert P. Stenzhorn, Michael B. Ware (Schempf & Ware, PLLC) for appellee.

Assignments of Error

1. The Circuit Court erroneously determined that Mr. Garrett’s oyster aquaculture is not “aquaculture” as defined in the York County zoning ordinance, finding despite substantial evidence to the contrary that Mr. Garrett does not raise his oysters in a “controlled environment” in a manner which enhances growth, as those terms are used in the zoning ordinance definition of “aquaculture.”
2. The Circuit Court improperly ignored the presumption of correctness that should have been accorded to the BZA’s factual finding that Mr. Garrett raises his oysters in a “controlled environment," under Code of Virginia § 15.2-2314.
3. The Circuit Court’s finding that Mr. Garrett’s oyster aquaculture is not “aquaculture” as defined in the County’s zoning ordinance is contrary to the Court’s apparent acknowledgement in a companion case also appealed to this Court (Circuit Court Case No. 12-4545, J. Mark Carter, Zoning Administrator, et al v. Anthony T. Bavuso, et al.), that oyster aquaculture raised in a manner nearly identical to Mr. Garrett’s method is, indeed, “aquaculture” under the zoning ordinance.
4. The Circuit Court erroneously ignored the County zoning ordinance definition of “animal” as “[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 Court therefore incorrectly concluded that the land-based aspects of oyster aquaculture 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.
5. 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).
6. The Circuit Court’s ruling erroneously ignores the clear distinction in the County’s zoning ordinance between “crop/livestock farming” and “aquaculture,” and that the ordinance does not allow aquaculture as a permitted use in the RR (Rural Residential) zone unless as a “home occupation” with a SUP.

Date Granted

  5-28-2013