McFillan v. Berkeley County Planning Com'n

Citation438 S.E.2d 801,190 W.Va. 458
Decision Date13 December 1993
Docket NumberNo. 21667,21667
PartiesMarion V. McFILLAN, Jr., Plaintiff Below, Appellant, v. BERKELEY COUNTY PLANNING COMMISSION, Defendant Below, Appellee.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. Under W.Va.Code, 8-24-1, et seq., the governing body of a municipality or the county commission may create a planning commission to develop a comprehensive plan for zoning, building restrictions, and subdivision regulations. Thereafter, the governing body or the county commission may adopt all or part of such a comprehensive plan.

2. The broad scope of land-use regulations authorized in W.Va.Code, 8-24-1, et seq., allows a nonconforming use exemption enacted thereunder to apply to any regulation that restricts the use of land.

3. A non-conforming use is a use which, although it does not conform with existing zoning regulations, existed lawfully prior to the enactment of the zoning regulations. These uses are permitted to continue, although technically in violation of the current zoning regulations, until they are abandoned. An exception of this kind is commonly referred to as a 'grandfather' exception.

4. A nonconforming use allows the owner of property to avoid conforming to a land-use regulation that effects his property. However, the nonconforming use is limited to the use existing at the time the regulation was adopted and it ordinarily may not be expanded into other areas of the property where the nonconforming use did not previously exist.

5. "The doctrine of estoppel should be applied cautiously, only when equity clearly requires that it be done, and this principle is applied with especial force when one undertakes to assert the doctrine of estoppel against the state." Syllabus Point 7, Samsell v. State Line Development Co., 154 W.Va. 48, 174 S.E.2d 318 (1970).

6. Land-use regulations will not constitute an impermissible taking of property under the Fifth Amendment to the United States Constitution and Section 9 of Article III of the West Virginia Constitution if such regulations can be reasonably found to promote the health, safety, morals, or general welfare of the public and the regulations do not destroy all economic uses of the property.

Michael L. Scales, Greenberg & Scales, Martinsburg, for appellant.

Janet L. Scalia, Asst. Pros. Atty., for Berkeley County, Martinsburg, for appellee.

MILLER, Justice:

Marion V. McFillan, Jr., the appellant and plaintiff below, appeals a final order of the Circuit Court of Berkeley County, dated December 3, 1992, denying his request for an exemption from complying with the Berkeley County Subdivision Regulations (Regulations). On appeal, the plaintiff argues, under several legal theories, that he should be allowed to expand his mobile home park notwithstanding the Regulations. We have reviewed the record and find the plaintiff's arguments to be without merit; accordingly, we affirm the trial court's final order.


On January 21, 1975, the Berkeley County Court adopted the Regulations which relate to unincorporated land in Berkeley County. The Regulations were part of a comprehensive plan 1 the Berkeley County Planning Commission (Commission) passed pursuant to W.VA.CODE, 8-24-16 (1969). ARTICLE IX2 of the Regulations prescribes a wide variety of minimum standards for mobile home parks and developments. For example, the Regulations require all mobile home parks to be at least five acres and each individual mobile home lot to contain at least 5000 square feet.

On August 14, 1980, the plaintiff purchased from Howard T. and Mary Margaret Stolipher a mobile home park that had been in existence when the Regulations were passed. After purchasing the property, the plaintiff asked the Planning Director of the Commission, Christine L. DeCamp, whether this mobile home park was required to comply with the provisions of the Regulations.

In correspondence dated December 12, 1980, Ms. DeCamp informed the plaintiff that the Stolipher mobile home park was exempt from the Regulations. However, Ms. DeCamp explained that this decision applied only to the Stolipher mobile home park and that the Commission's staff would determine on a case-by-case basis whether such an exemption would be granted to other preexisting mobile home parks. 3

Approximately one year later, the plaintiff purchased the Rocky Glen Mobile Home Community (Rocky Glen), also located in Berkeley County. Instead of requesting an opinion from the Commission on whether this mobile home park was subject to the provisions of the Regulations, the plaintiff simply assumed that the property was exempt and proceeded to expand the park without attempting to meet the standards outlined in Article IX of the Regulations. From 1981 to May of 1992, the plaintiff increased the number of mobile home lots in Rocky Glen from 25 to 245. None of the new lots conformed with the Regulations.

On October 29, 1991, William Teach, an interim director for the Commission, wrote the plaintiff and explained that any further expansion of Rocky Glen would require the Commission's review and approval. 4 After not hearing from the plaintiff for over a year, Mr. Teach sent him a follow-up letter once again reminding him that he would have to obtain the Commission's approval before expanding the number of mobile home lots at Rocky Glen. 5 Finally, on April 13, 1992, Mr. McFillan wrote back to the director stating that he had been led to believe that any mobile home park that was in existence at the time the Regulations were passed was not subject to their provisions. In a letter dated April 27, 1992, Mr. Teach informed Mr. McFillan that he must secure the Commission's approval before proceeding any further on his plan to expand Rocky Glen.

On further inquiry, the plaintiff received from the Commission a copy of a document entitled "DIRECTIVE TO ENFORCEMENT OFFICER AND LEGAL COUNSEL," which was dated September 11, 1989. This directive informed the necessary personnel that any future expansion of a mobile home park, regardless of whether the business existed before the Regulations were passed, was subject to the Regulations and would, therefore, have to conform with all their provisions. 6

On May 18, 1992, the plaintiff appeared before the Commission. At that meeting, the plaintiff informed those attending that there were 245 mobile home lots at Rocky Glen, 230 of which were already occupied. Mr. McFillan also stated that he had preliminary plans to expand the trailer park by an additional 63 units. When the Commission asked the plaintiff to provide it with these plans, he advised that he was not looking for their approval. Thereafter, the Commission voted to require the plaintiff to comply with the Regulations for any future expansion.

Subsequently, the plaintiff filed a petition for certiorari in the Circuit Court of Berkeley County requesting a review of the Commission's decision. In an order dated December 3, 1992, the circuit court upheld the Commission's decision.


The Regulations at issue in this case are subdivision regulations enacted pursuant to W.Va.Code, 8-24-28 through -35. Among these statutory provisions is the following requirement contained in W.Va.Code, 8-24-33 (1969):

"After a comprehensive plan and an ordinance containing provisions for subdivision control and the approval of plats and replats have been adopted and a certified copy of the ordinance has been filed with the clerk of the county court [county commission] as aforesaid, the filing and recording of a plat involving the subdivision of lands covered by such comprehensive plan and ordinance shall be without legal effect unless approved by the commission[.]" (Emphasis added).

The subdivision control provisions are part of a larger statutory scheme dealing with planning, zoning, and development of a comprehensive plan. See W.Va.Code, 8-24-1, et seq. Initially, under W.Va.Code, 8-24-1 (1969), the "governing body of every municipality and the county court [county commission] of every county may by ordinance create a planning commission[.]" The creation and composition of municipal and county planning commissions are outlined in W.Va.Code, 8-24-5 (1986), and W.Va.Code, 8-24-6 (1986). Under W.Va.Code, 8-24-16 (1969), a planning commission "shall make and recommend for adoption to the governing body ... a comprehensive plan for the physical development of the territory within its jurisdiction."

It is clear from the comprehensive nature of the provisions in W.Va.Code, 8-24-1, et seq., that the historic distinction we have made between zoning and planning 7 has been largely obliterated because both concepts are now incorporated into a comprehensive plan. W.Va.Code, 8-24-39 (1988), gives broad zoning authority power over a variety of different subjects. 8 Moreover, a comprehensive subdivision plan under W.Va.Code, 8-24-28, 9 may contain both zoning and building restrictions through its use of the term "comprehensive plan." 10

Thus, we believe that under W.Va.Code, 8-24-1, et seq., the governing body of a municipality or the county commission may create a planning commission to develop a comprehensive plan for zoning, building restrictions, and subdivision regulations. Thereafter, the governing body or the county commission may adopt all or parts of such a comprehensive plan.


In this case, the plaintiff does not argue that the Regulations violated any provisions of W.Va.Code, 8-24-1, et seq. Rather, his principal argument is that because Rocky Glen existed as a mobile home park prior to the adoption of the Regulations, a valid nonconforming use existed.

We have recognized the concept of a nonconforming use, which occurs when land is lawfully used prior to the adoption of an ordinance that restricts its use. Such a nonconforming use generally may be continued until it is abandoned, as we stated in note 1 of Longwell v. Hodge, 171 W.Va. 45, 47, 297 S.E.2d 820,...

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