|Legal Opinion: |
Text of Document: QUESTION
May the city enact local ordinances that would have the effect of excluding manufactured or modular homes from being situated inside the city’s corporate boundaries, or by regulating such by zoning or land-use planning from land designated for residential use?
No. Current state laws preclude zoning or land-use planning restrictions on such structures if imposed solely because the dwelling is partially or completely constructed in a manufacturing facility.
Initially, it should be noted that manufactured or modular homes have been extensively regulated on the state level by the Tennessee General Assembly. See e.g., T.C.A. §§ 68-126-101 et seq. [Uniform Standard Codes; inspection of materials and construction, licensing of manufacturers and dealers, inspection of installation, permits and fees; manufactured home anchoring]. The state law is in accord with the purposes of the National Manufactured Home Construction Act of 1974, 42 U.S.C. §§ 5401 et seq.
For example, 42 U.S.C. §§ 5401 et seq. governs placement of manufactured homes and specifically excludes mobile homes or homes mounted on a single chassis from the definition of “residential dwelling” :
(a) Notwithstanding any provision of the law to the contrary, no power or authority granted by this code to regulate zoning or land use planning shall be used to exclude the placement of a residential dwelling on land designated for residential use solely because the dwelling is partially or completely constructed in a manufacturing facility.
(b) "Residential dwelling," as used in this part, does not apply to factory-manufactured mobile homes constructed as a single self-contained unit and mounted on a single chassis, and as further defined in § 68-126-202(4), (6) and (7), nor shall this chapter have any effect whatsoever upon any zoning or other regulations whether state or local concerning such factory-manufactured mobile homes as herein defined.
T.C. A. § 13-24-202 addresses the general appearance and suitability of modular homes:
Such manufactured residential dwelling shall have the same general appearance as required for site-built homes.
The State has the authority and duty to approve the manufacture and inspection of installation of modular homes. In addition, city ordinances that provide for inspection of modular homes must not conflict with the state statutes:
T.C.A. § 68-126-304. Approval; local standards
(a)(1) After the effective date of the rules adopted pursuant to this part, no modular building unit shall be offered for sale, sold, or installed in this state unless it is approved and bears the insignia of approval of the commissioner, the commissioner's designee, or an approved inspection agency.
(2) All modular building units manufactured in this state, or intended to be offered by for sale, sold, or installed in this state, shall be inspected by the commissioner, the commissioner's designee, or an approved inspection agency, at the place of manufacture of the modular building unit.
(b)(1) No local standard relating to the construction or installation of modular building units shall be applicable to any modular building unit subject to this part unless such standard is identical to that set by the commissioner pursuant to
(2) Any modular building unit bearing an insignia of approval issued by the commissioner, the commissioner's designee, or an approved inspection agency pursuant to this part shall be deemed to comply with any local standard relating to the construction of modular building units.
(3) Subject to the provisions of subdivision (b)(1), a local government may make, and charge a fee for, an inspection of the installation of a modular building unit. Such fee shall be equal to the amount charged for a similar inspection on conventionally built housing.
(4) Local land use and zoning requirements, fire zones, building setback requirements, side and rear yard requirements, subdivision control, as well as the review and regulation of aesthetic requirements, are specifically and entirely reserved to local government. Such local requirements and rules which may be enacted by a local government must be reasonable and uniformly applied and enforced without any distinction as to whether a building is a conventionally constructed or modular building. (Emphasis added)
(5) Modular building units bearing an insignia of approval issued by the commissioner, the commissioner's designee, or an approved inspection agency pursuant to this part shall not be modified prior to or during installation except in conformance with the rules of the commissioner.
The statute that emphasizes state preemption in this industry is set forth in
§ 68-126-412 :
§ 68-126-412. Preemption
It is the intention of the general assembly that this part, and regulations issued pursuant thereto, preempt any local ordinance or regulation of installation of stabilizing systems on manufactured homes. All city, county and consolidated government resolutions, ordinances, regulations and code requirements on installation of stabilizing systems on manufactured homes are superseded by the provisions of this chapter, and regulations issued pursuant thereto.
In summary, a factory-manufactured home constructed on a double chassis and having the same appearance as a site-built home would fall within the term “residential dwelling, as opposed to “factory-manufactured mobile homes constructed as a single self-contained unit and mounted on a single chassis...”The statutes do not distinguish the terms “manufactured home” and “modular home;” instead, the terms are used interchangeably in the statutes
It should be noted that the state statutes prohibit only those zoning and land-use restrictions that exclude a home solely because the dwelling is partially or completely constructed in a manufacturing facility. Obviously, restrictions based on other criteria may be valid under the law and yet result in the exclusion of a particular factory-manufactured home from an area on non-discriminatory grounds.