Tomales Bay Oyster Company has been ordered to limit sales and remove its popular picnic and barbeque sites by the end of the month. The cease and desist order, issued by the county last week, mandates that the business restrict its activities to those included in the current use permit—which was last updated in 1987.
The move came after county planners recommended that an application for permits to legalize current operations be denied earlier this month. The company withdrew the application, and the cease and desist order—originally issued in 2012—was reissued the day before the Planning Commission workshop last week.
The company, which currently sells oysters to retail customers seven days a week, says they will be in compliance by October 12. “The point right now is to get legal,” said owner Tod Friend.
The oyster company plans to submit a revised application, though it is unclear when that will happen. The county has asked that they submit a pre-application or conceptual proposal so it can consider whether it conforms with county policies.
The new proposal will include four farmworker housing units, a processing barn, picnic tables (fewer than currently in place) and a new reservation system, along with a hatchery that will be run by Kevin Lunny, who owned the oyster farm in Drakes Estero, according to a letter Mr. Friend sent to Supervisor Steve Kinsey.
Currently, walk-up customers comprise nearly 90 percent of the company’s business, buying about 2 million oysters per year. Well over half come to eat their oysters on-site at the convival bayside picnic area that the company has gradually expanded over the years to accomodate demand.
As of next month, retail sales will only be allowed on Friday afternoon, Saturday and Sunday. The crowd, and the cars that typically line the shoulder of Highway 1, could all but disappear as customers will have no tables to dine on.
Yet it is unclear whether T.B.O.C. must ask weekend retail customers to leave if they choose to eat their shellfish on the business’ land or on the shoreline. “Your [cease and desist order] does not require Tomales Bay to prohibit members of the public from holding their own picnics or barbecues on Tomales Bay’s property, or anywhere else,” wrote Peter Prows, the company’s lawyer, in a letter to the county yesterday. “Further efforts to restrict the public from picnicking or barbecuing in these areas of the Coastal Zone could place the county in violation of the public-access requirements of the Coastal Act.”
County planner Curtis Havel said he was “not prepared” to say whether people must be asked to leave the property after purchasing oysters, though he pointed out that other businesses, like Hog Island, have limits on how many people can be onsite.
“My question is, does access mean unfettered access?” Mr. Havel said. “No one thinks T.B.O.C. should be put out of business, but when an operation is attracting hundreds of people, there are traffic, parking and safety impacts.”
Regardless, with sales to the public drastically curtailed, the company will have to expand sales to wholesale markets like restaurants and grocery stories and other wholesale markets. In 2014 the farm only sold about 13 percent of its oysters wholesale. Most of those went to the Marshall Store, which Mr. Friend used to own and which is now owned by his stepchildren. Some were also sold to Café Reyes and Indian Peach catering company. The rest—roughly two million—were sold directly to customers.
The business expects to take a hit as returns are much slimmer on wholesale transactions, and they will also lose the revenue from renting tables. Currently only about 35 percent of retail customers take their oysters offsite. Mr. Friend surmised that, at best, he can expand that number to 50 percent—which would still be a big shortfall from current levels.
“There’s no way we’re going to be as profitable,” Mr. Friend said. “But we want to be survivable.”
The company also will be laying off half of his workers, as the use permit only allows eight employees.
Last weekend, employees passed out cards to customers notifying them of the looming changes and providing the numbers and email addresses of county agencies if they want to comment. Mr. Friend manned the retail table, fielding questions from shocked and disappointed customers.
At last week’s workshop the public voiced its concerns and support while some planning commissioners suggested that the retail operation is just too large and far out of compliance not just with its permit but with zoning rules.
Zoning issues are a key part of T.B.O.C.’s permitting problem—and even a revised application won’t necessarily resolve all those issues. The oyster farm’s bayside parcel is in an agricultural zoning district that permits some retail sales, but it does not specifically allow most onsite recreation—which the county has interpreted to exclude picnics and barbeques.
The company recently purchased a 26-acre parcel east of the highway, which is zoned to allow some retail and picnicking. Though T.B.O.C intended to use the land for a parking lot, planners said such a use is not in keeping with agricultural zoning.
Yet if the site also supported a suite of agricultural uses—such as processing facilities, picnic tables, retail facilities and newly proposed farmworker housing—county staff indicated they might be more amenable to recommending a parking area as well.
County agricultural commissioner Stacy Carlsen supported the planners’ suggestion that the oyster farm should be able to use the eastern parcel for retail and processing.
“There is little usable land. It could not really be used for grazing,” he said. Grazing generally requires at least 60 acres, and usable portion of the 26-acre-parcel is whittled down even more by steep slopes, environmental buffers and an archeological site.
Yet commissioners and others questioned whether, even with good intentions, stretching the interpretation of the zoning might set a bad precedent.
“E.A.C. has very serious concerns about ag production zone lands, and the slippery slope and potential precedent this could create,” said Amy Trainer, the executive director of the Environmental Action Committee of West Marin.
Ms. Trainer also voiced concern over whether the selling of oysters that were not produced in Tomales Bay represented a the kind of “coastal dependent use” promoted in the Coastal Act. To meet demand, the company regularly ships in extra bivalves. When harvesting was closed for 111 days last year, T.B.O.C shipped in over 600,000 oysters from Washington State in 2014. There is little precedent for a business in an agricultural zone selling so much product onsite that it did not grow, though Mr. Friend has said the number of closures was unusually high.
Moving forward, the county must interpret a development code that says limited retail is allowed—but not to what degree.
Wade Holland, the commissioner representing West Marin, said that the code is intentionally vague, giving the county leeway to determine on a site-by-site basis a level that is appropriate.
According to Mr. Holland, large swaths of land were zoned for agricultural production to “hold it” with the idea of returning to the lands later to decide if that zoning was appropriate. “Maybe the time has come to look at Highway 1,” Mr. Holland said.
But some commissioners were clear that, whatever level is appropriate, T.B.O.C. has well exceeded it. “I do think we’re out of balance,” said Katherine Crecelius. “Most agriculture isn’t retail. Dairies don’t sell milk cartons off the side of the road… It’s too much retail.”