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McFillan v. Berkeley County Planning
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1993 Term
No. 21667
MARION V. MCFILLAN, JR., Plaintiff Below, Appellant
v.
BERKELEY COUNTY PLANNING COMMISSION, Defendant Below, Appellee
Appeal from the Circuit Court of Berkeley County Honorable Patrick G. Henry, III, Judge Civil Action No. 92-P-26
AFFIRMED
Submitted: September 21, 1993 Filed: December 13, 1993
Michael L. Scales Greenberg & Scales Martinsburg, West Virginia Attorney for Appellant
Janet L. Scalia Assistant Prosecuting Attorney for Berkeley County Martinsburg, West Virginia Attorney for Appellee
JUSTICE MILLER delivered the Opinion of the Court.
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

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.


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.
I.
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 the Berkeley County Planning Commission (Commission) passed pursuant to W. Va. Code, 8-24-16 (1969). Article IX 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.
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. 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. 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 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.
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.
II.
The Regulations at issue in this case are subdivision regulations enacted pursuant to W. Va. Code, 8-24-28 through

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