
    CIRCUIT COURT OF NORTHUMBERLAND COUNTY
    Gleb B. Grigorovich-Barsky v. Board of Zoning Appeals of Northumberland County
    March 26, 1997
   By Judge Joseph E. Spruill, Jr.

This matter is before the Court upon a Writ of Certiorari for the review of a decision of the Board of Zoning Appeals of Northumberland County on January 10, 1995. This review is pursuant to § 15.1-497 of die Code of Virginia.

The issue arises from die complaint of the petitioner, Gleb B. Grigorovich-Barsky, who moved to Northumberland County in 1993. Mr. Barsky owns approximately twelve acres on Henry’s Creek. To the east adjacent to petitioner’s property, Mike Croxton runs a seafood operation. To the west, Mr, Croxton has his home. Mr. Croxton has a piar located at his private residence, and it is die activities which take place here that are the source of this controversy. Mr. Barsky contends that Mir. Croxton permits commercial fishermen to moor and work on their boats located here and because of the hours and methods of usage, this has become a burden and a nuisance. He complained to the Zoning Administrator and then to the Board of Zoning Appeals, which concluded the commercial use of the private pier was a lawful, nonconforming use.

Following a hearing on November 21,1996, counsel were requested to file briefe. The last of these was filed February 28, 1997. These have now been considered, along with the record of the proceedings. The record consists, among other things, of the transcript of the hearing before the Board of Zoning Appeals and numerous letters and exhibits. Because the record appears to be relatively complete, the court finds that a further hearing is unnecessary.

Initially, we find that this is a commercial pier within the meaning of the zoning ordinance. Section 1-80 defines a commercial pier as follows:

Pier, Commercial: A pier or dock constructed for foe landing of seafood and for foe mooring of work boats or any boat that is used for profit in a business.

From foe record, there can be no serious contention that Mr. Croxton does not use this pier for commercial purposes. His counsel conceded as much at foe hearing, as did the Zoning Administrator. There, he said: “foe pier has been used commercially for more than twenty years___” (quoting from his letter of December 5, 1994, to Mr. Barslty). % definition, and by acknowledgment, this is a commercial pier.

Next, we will assume that upon foe adoption by foe Northumberland County Board of Supervisors of its zoning ordinance in 1974, foe commercial use of this pier from a residential lot was “grand fathered” as a nonconforming use. A nonconforming activity is defined in foe 1974 ordinance as foe otherwise legal use of a structure (i.e. piar) that does not conform to foe use regulations of foe ordinance for foe district in which it is located. Section 1-56. In order for Mr. Croxton to continue this commercial activity in a residential waterfront district, R-2, foe ordinance required a zoning permit Section 10-2-1 of foe ordinance mandates font all nonconforming uses be identified and catalogued and a zoning permit issued by foe administrator. Because foe commercial activities at foe pier predated foe adoption of foe ordinance, they were allowed to continue, subject to foe other requirements of tire ordinance.

This nonconforming use was never identified and catalogued and no zoning permit was ever issued in connection with foe operation of foe piar in question. The county acknowledges this in its brief, claiming that it had neither tiré manpower nor foe resources to undertake such a task.

This may be understandable, but it is not a valid excuse. The Board of Supervisors has broad discretion in enacting a zoning ordinance. The inclusion of foe foregoing provision was not mandatory; it was foe voluntary act of foe Board. Once the ordinance was adopted, it becomes foe law, and it must be followed. No one, least of all foe Court, has foe authority to ignore it See Hurt v. Cardwell, 222 Va. 91 (1981), and Foster v. Geller, 248 Va. 563 (1994).

If a requirement of foe ordinance proves to be burdensome or illconceivcd, foe remedy is to amend foe ordinance and delete it, not simply to ignore it The reasons for this are too obvious to warrant further comment.

Because Mr. Croxton has conducted a commercial operation at his pier in a residential district without the permit required by either of the zoning ordinances adopted by die Northumberland County Board of Supervisors, his operation is in violation of the ordinance.

Accordingly, die decision of the Board of Zoning Appeals is reversed.

This does not mean that all activities at the pier must abate. The County Attorney and counsel for Mir. Croxton argue that Mr. Croxton has certain vested rights under Virginia Code § 15.1-492 because of the long usage of this pier for commercial purposes. The Court agrees. The record reflecte that some commercial activity has been ongoing at the pier since prior to 1974. The extent of die commercial usage then and whether there turn been significant expansion since that time will be a matter for die Board to determine. M. Croxton may not, however, be denied the right to conduct an appropriate level of commercial activity from this pier. But before such commercial activity should be allowed to continue, he should appear before die Board of Supervisors and obtain a conditional use permit as is required by the ordinance. Presumably the Board will give consideration to all parties affected by its decision and issue a permit to M. Croxton with such reasonable conditions as will fairly and responsibly address die concerns of all involved.  