|Legal Opinion: |
Text of Document:
FROM: Sid Hemsley, Senior Law Consultant
DATE: August 18, 2009
RE: Age limit on mobile homes
Two of your cities have this question: Is it legal to restrict the mobile homes that come into the city to a certain age, in one city to no more than two years of age, in the other to no more than five years of age?
That is a difficult question to answer. As far as I can determine, only one case in the United States has addressed the question of whether an ordinance containing an age limit on mobile homes is legal. I make an educated guess that because that case upheld the five year age limit it is the case driving such age limits in zoning ordinances. However, I am not confident that case is sound, although as will be seen below, the courts have gone a long distance in upholding local mobile home regulations, even in the face of federal and state regulations that attempt to put them on a plane at least partially equal to conventional housing. In addition, Tennessee is among those states in which there has been little mobile home litigation, and what there has been has generally favored the regulations at issue.
The case that upheld the five year age limitation is Lex, Inc. v. Board of Trustees of the Town of Paragon, 808 N.E.2d 104 (Ct. App. Ind. 2004). There the City of Paragon (pop. 668) restricted mobile homes coming into the city to those not over five years old. The plaintiff owned a 1990 mobile home that he located in a mobile home park inside the city. The court upheld the ordinance under the city ' s police powers against two major challenges by the plaintiff, including that the Indiana State Health Department had the exclusive authority to regulate and license
mobile home parks. But the ordinance applied to all mobile homes in the city. The court appears to have given weight to the city ' s argument that as a home rule city it had the inherent power to prohibit mobile homes over 5 years old. Under the Indiana Home Rule statute a "unit" [apparently that term meant or included home rule cities] "has all the powers granted by statute and ' all other powers necessary or desirable in the conduct of its affairs, even though not granted by statute. '" The court declared that:
It is through the Ordinance that the Board [of Trustees] is enforcing the Health Department ' s sanitary and safety regulations, not seeking to exceed its authority. Therefore, in interpreting the Home Rule statute as a whole and giving the words their common and ordinary meaning, we find that the enactment of the Ordinance is a reasonable use of the powers granted to the Board in the Home Rule Statute.... [At 110].
The court also rejected the plaintiff's claim that the ordinance violated the Equal Privileges Clause, Article 1, Section 23 of the Indiana Constitution, reasoning that the there was an "inherent" distinction between mobile homes less than five years old and mobile homes more than five years old, and that the ordinance was not discriminatorily enforced; it applied to all mobile homes. On the "inherent" distinction issue, the court declared that:
.... Specifically, the record shows that the Board enacted the Ordinance in order to ensure sanitary, efficient and economical placement of the mobile homes in the town of Paragon. Further, the Ordinance also seeks to ensure that the mobile homes are connected and properly used between municipal utilities and to insure attractive and sanitary use of the mobile homes. Therefore, we find that the Board ' s reasons for enacting the Ordinance are reasonably related to inherent differences between mobile homes that are five years old and older and those that are less than five years old. [Citation omitted by me.] [At 112]
Neither of the cities at issue is a home rule city under Article XI, Section 9 of the Tennessee Constitution, although I doubt that the home rule issue in Paragon would have much of a bearing on Tennessee home rule municipalities..
Certain federal standards apply to mobile homes that preempt state and local standards on the same subject. Those were never mentioned in Paragon. Indeed, the trial court ' s findings of fact included this one: "Paragon does not have a comprehensive plan for zoning and planning, has no building inspector, planning director, zoning ordinance or building code." [At 107]
The National Manufactured Housing Construction and Safety Standards of 1974 [24 C.F.R. ' 3280 et seq.] adopted pursuant to U.S.C.A. ' ' 5401-5426, preempt any state or local building code regulations inconsistent with those Standards. 42 U.S.C. ' 5403(d) provides that:
Whenever a Federal manufactured home construction and safety standard established under this charter is in effect, no State or political subdivision of a state shall have any authority either to establish, or to continue in effect, with respect to any manufactured home covered, any standard regarding construction or safety applicable to the same aspect of performance of such manufactured home which is not identical to the Federal manufactured home construction and safety standard. Federal preemption under this subsection shall be broadly and liberally construed to ensure that disparate State or local requirements or standards do not affect the uniformity and comprehensiveness of the standards promulgated under this section nor the Federal superintendence of the manufactured housing industry as established by this chapter. Subject to section 5404 of this title, there is reserved to each State the right to establish standards for the stabilizing and support systems of manufactured homes sited within that state, and for the foundation on which manufactured homes sited within that State are installed, and the right to enforce compliance with such standards, except that such standards shall be consistent with the purpose of this chapter and shall be consistent with the design of the manufacturer.
The italicized sentence of the above provision was added to the 1974 Federal Standards by the American Home Ownership Opportunity Act of 2000. It does not seem clear even today what affect this amendment has on the federal preemption of state and local regulations of mobile homes based on aesthetic and other reasons.
The 1974 Federal Standards have been held to preempt building code requirements that conflict with those requirements. [See Scurlock v. City of Lynn Haven, 858 F.2d 1521 (11th Cir. 1988); Texas Manufactured Housing Association, Inc. v. City of Nederland, 1203 F.3d 1095 (5th Cir. 1996); Colorado Manufactured Housing Association v. Board of County Commissioners of County of Pueblo, 946 F.Supp. 1539 (Colo. 1996); Manufactured Housing Association v. Robinson Township, 73 F. Supp.2d 823 (W.D.Mich. 1999).]
But several cases have held that zoning regulations that have an aesthetic, rather than a consumer protection, purpose are not preempted by the 1974 Federal Standards, even when they require construction modification/s to mobile homes. The lead case in this area is Georgia Manufactured Housing Association Inc. v. Spalding County, 148 F.3d 1304 (11th Cir. 1998). There the Court upheld the county ' s zoning regulation that permitted mobile homes in residential zones only if they had a roof with a 4:12 pitch, on the grounds that the 1974 Federal Standards were designed to protect consumers from mobile home hazards, and that the 4:12 roof pitch requirement "does not have any purported basis in consumer protection, but is a straight forward declaration that the County does not want low-pitched roofs in its residential areas." [At 1310] A county zoning ordinance that required mobile homes placed in certain locations to have siding and roof shingles of a type "commonly used in residential construction," and a roof pitch of 2- 1/2 feet for each 12 feet of horizontal run, was upheld in CHM Manufacturing, Inc. v. Catawba County, 994 F.Supp. 697 (W.D.N.C. 1988). Those standards went to appearance, not to safety, reasoned the Court.
In Bibco Corporation v. City of Sumpter, 504 S.E.2d 112 (S.C. 1998), the South Carolina Supreme Court upheld a city ordinance that restricted mobile homes to mobile home parks against the plaintiff ' s challenge that because his mobile home met the 1974 National Manufactured Housing Construction and Safety Standards of 1974, it could not be subject to such an exclusion. The Court rejected his argument, declaring that:
Bibco ' s argument must fail for the simple reason that the City ' s ordinance does not impose any construction or safety standards on mobile homes. The ordinance simply distinguishes between structures built on a permanent chassis and those that are not and excludes the former from R-9 residential districts. Bibco ' s attempt to characterize this distinction as a construction standard is unavailing. [At 115]
It appears that if a local government can justify a particular mobile home regulation on any grounds other than safety and consumer protection, the regulation might survive a challenge that it violates the 1974 Federal Standards. In Paragon one of the WHEREAS ' s in the mobile home ordinance was that:
It is necessary that there be certain rules and restrictions to insure that said mobile homes are connected and properly used between municipal utilities and to insure attractive and sanitary use of such mobile homes... [At 107]
The language in Pagragon "to insure that said mobile homes are connected and properly used between municipal utilities... " might, standing alone, have been safety related, and perhaps preempted by the federal regulations. But the ordinance also paid attention to "insure attractive and sanitary use of mobile homes," Those reasons for the ordinance may have taken it out of umbrella of the federal standards. The 2000 amendment to the National Standards probably reflects a response to some of the cases that permit state and local governments to do an end run
around those Standards on aesthetic grounds. But even if that is true, the language of that amendment does not appear to expand the purposes of the 1974 Federal Standards beyond its safety and consumer protection purposes.
The State of Tennessee has adopted the Uniform Standards for Manufactured Homes Act, codified in Tennessee Code Annotated, ' 68-126-1011, which is the vehicle by which the Tennessee State Department of Commerce and Insurance enforces the 1974 Federal Standards. Tennessee Code Annotated, ' 68-126-203 states the purpose of the Tennessee Uniform Standards for Manufactured Homes, which is obviously similar to the policy stated in the 1974 Federal Standards:
Manufactured homes, like other finished products having concealed vital parts, may present hazards to the health, life and safety of persons and to the safety of property unless properly manufactured. In the sale or rental of manufactured homes, there is also the possibility of defects not readily ascertainable when inspected by purchasers. It is the policy and purpose of this state to provide protection to the public against those possible hazards, and
for that purpose to forbid the manufacture and sale or lease of manufactured homes that are not so constructed and to provide reasonable safety and protection to their owners and users.
The focus of the Tennessee Uniform Standards appears to be the same as the 1974 Federal Standards: safety and consumer protection. There appears to be nothing in the Tennessee Uniform Standards that would intercept local zoning regulations that have an aesthetic or purpose.
But in Tennessee, local governments attempting to impose appearance standards of any kind on double-wide mobile homes in residential areas must deal with Tennessee Code Annotated, ' ' 13-24-201 B 202, and with the case law on the subject of zoning for aesthetic purposes. That statute preempts the right of local governments "to exclude the placement of a residential dwelling [double-wide manufactured home] on land designated for residential use
solely because the dwelling is partially or completely constructed in a manufacturing facility." However, Tennessee Code Annotated, ' 13-24-202 provides that "Such manufactured residential dwelling shall have the same general appearance as required for site-built homes."
In spite of the above cases that uphold mobile home restrictions in ordinances based on reasons other than those directly related to building and safety codes, it appears to me likely that
an age limitation (especially a short one of two or a five years)-- at least on double-wide mobile homes, that otherwise have the same appearance as a conventional house, would be subject to challenge under that statute.
But Norris v. Bradford, 321 S.W.2d543 (1958), held that zoning ordinances passed solely for aesthetic purposes are invalid. That case may not survive a challenge in this day and time in which aesthetics are far more important than they used to be, but until it is overturned or modified, that case is still a problem for local government zoning regulations based solely on aesthetics.
In fact, in Mobile Home City of Chattanooga v. Hamilton County, 552 S.W.2d 86 (Tenn. Ct. App. 1977), the court upheld a zoning restriction pertaining to the minimum size required for mobile home park districts. The court acknowledged that City of Norris v. Bradford, above, prohibited zoning based solely on aesthetic grounds, but declared that, "Conversely, when a zoning ordinance bears a reasonable relation to the public health, safety or morals, it must be sustained as a valid exercise of police power." [At 87] The court also went on to explain what "reasonable" meant in the zoning context. It did not mean that the courts were free to substitute their judgement for what was reasonable: Quoting Davidson County v. Rogers, 184 Tenn. 317, 331, 198 S.W.2d 812, 814 (1947), the Court said:
It is said that the courts have the right to determine whether such law is reasonable. By this expression, however, it is not meant that they have the power to pass upon the act with a view to determining whether it was dictated by a wise or foolish policy, or whether it will rebound to the public good, or whether it is contrary to natural justice or equity. These are considerations solely for the Legislature. In determining whether the act is reasonable the court decides merely whether it has any tendency to carry into effect the purposes designed (that is, the protection of the public safety, the public health, or the public morals) and whether this is really the end had in view, and whether the interests of the public generally, as distinguished from those of a particular class, require such interference, and whether the act in question violates any provision of the state or federal constitution. [Citation omitted.] [At 87]
The court further observed that:
One who assails classification made in a police measure must carry the burden of showing that it does not rest upon any reasonable basis, but that such classification is clearly arbitrary [citation omitted] ....and "if any possible reason can be conceived to justify such classification, it will be upheld and deemed reasonable." [Citations omitted.] [At 88]
Paragon found the five year age limitation within the police power of the city, based on the inherent distinction between mobile homes over five years old and those less than five years old. But that case reflects not a smidgen of objective differences between such mobile homes. As broad as are the police powers of Tennessee municipalities and how liberal the "reasonable" standard is in favor of municipalities found Mobile Home City of Chattanooga, I still have a difficult time believing that it is within the police power of a city to fix a two, or even five, year age standard as the sole reason for rejecting the admission of mobile homes into the city. That standard would exclude mobile homes made in 2007, and 2003, from admission to the two cities in question, based on no reason other than that they were manufactured in or before those years. I suspect that the inherent distinction argument accepted in Paragon comes close to being arbitrary and capricious for the reason that it would be difficult to show that as a class, mobile homes made in 2007 or 2003, or before, are different in any material way from mobile homes made earlier. I may be that the inherent distinction would not be an arbitrary standard at a certain age in the life of a mobile home, but it does not seem to me that is true with respect to two and five years.
Still, those restrictions can be defended, at least under the present law and cases governing mobile home.