PARKERSBURG - Wood County officials are breathing a sigh of relief after a Wood County Circuit Court judge ruled county floodplain legislation is constitutional.
In 2010 a civil action challenging the constitutionality of county floodplain regulations was filed on behalf of Marcie D. Weyer and Tomar Rentals, a limited liability corporation that leases Meadowbrook Acres Mobile Home Park on West Virginia 95 near Lubeck. The lawsuit named the Wood County Commission as defendant. Wood County Circuit Judge J.D. Beane has ruled the floodplain ordinance is constitutional.
A proposed joint motion to dismiss the remainder of the suit is pending.
In the original suit, the plaintiffs asked the court declare certain provisions of the county flood ordinance unconstitutional. The county's ordinance is based on a statewide model. If the plaintiffs had prevailed, the ruling might have had an effect on flood insurance throughout West Virginia, Wood County officials said.
"We are relieved because it means we can pursue the floodplain coordination the way we have been. Basically it means if the property owner wants to add mobile homes, he can, but he has to comply with the existing floodplain regulations and elevate the units two feet above the base flood elevation, in compliance with the county's freeboard regulation. But he can still put the units in," said John Reed, Wood County compliance officer.
Reed noted the plaintiff had also claimed an "inverse condemnation" of the property. The land in question, by floodplain maps is designated in Zone A of the floodplain.
Changes in the floodplain ordinance were made by the county commission in 2007 relating to placement of manufactured homes. The plaintiffs had argued the additional elevation and other requirements "makes the placement of mobile homes in the floodplain area impossible and is therefore unconstitutional."
"When the government enacts certain regulations, and they claim those regulations make it impractical to do something, they contend it's the same as the government taking the land," Reed noted.
Beane ruled state code allows the county to institute land-use regulations and the current ordinance is in compliance with Federal Emergency Management Agency regulations.
"What is done by the Wood County Commission through the floodplain ordinance does restrict the use of the property indirectly because compliance increases the economic cost in the installation of new mobile homes," Beane ruled no grandfather clause applies in this particular case.
"The court finds that the floodplain ordinance is constitutional and is a legitimate exercise of government power and is fully applicable to the plaintiffs," according to the judge's ruling.
The court did not address the issue of whether the application of the ordinance constituted an "impermissible taking" of the property.
More recently, a proposed joint motion has been filed, which if approved by both parties and signed by the judge, would dismiss the remaining issues in the lawsuit.
"We are happy with the ruling because it means we have the right to enforce the floodplain regulations, there is no change that has to be made," said Wood County Emergency Services Management Director/Floodplain Coordinator Ed Hupp.
Hupp noted if the court had ruled in favor of the plaintiffs, the rulings would not only have affected Wood County, but possibly the rest of the state as well. "Our ordinance here was based on a statewide model ordinance that many other counties have adopted as well."
Prior to the suit being filed, county officials contended two trailers placed in the mobile home court, located in Lubeck off West Virginia 95 near Bickel Estates, were in violation of the floodplain ordinance and must be removed. Action had been stalled pending the outcome of court action. Charleston attorney Timothy LaFon, who represented Weyer, told commissioners earlier the property in question was grandfathered because the floodplain ordinance was not in effect when the mobile home park was established, therefore, the trailers placed there now are not in violation.
"The two trailers in question can be placed on the lots, but have to be put in to floodplain standards, which means the trailers would have to be properly anchored, raised to the proper elevation and put in by a licensed contractor. The elevation there is 610 feet, so the trailer would need to be raised," Hupp told the county commission during an earlier meeting.
LaFon argued for already established lots, the floodplain regulation cannot be invoked. The trailer court was purchased in 1999 before the county had a floodplain ordinance, LaFon said.
Wood County officials were concerned what ripple effect a ruling against the county might have on flood insurance. Through the floodplain program, federally subsidized flood insurance is made available to homeowners, renters and business owners building in floodprone areas. As part of the National Flood Insurance Program, the county is required to maintain a building permit system and building permit-floodplain enforcement officer.
As part of the regulations, there are restrictions for building within floodplain areas and elevation requirements. If the county violates flood insurance program regulations, it can be placed on probation or removed from the program, making federally subsidized flood insurance unavailable. The purpose of floodplain management is to reduce flood damage. All 55 counties and 214 communities in West Virginia have adopted local floodplain management ordinances that provide flood loss reduction building standards for new and existing development.