6. Ordinance 1286 - Zoning Text Amendment - Manufactured Housing - 1st ReadingAgenda - April 6, 1998
AGENDA ITEM 6 - ORDINANCE 1286 - ZONING TEXT AMENDED
MANUFACTURED HOUSING - IST READING
BACKGROUND/CONSIDERATION: Enclosed are the minutes, findings of fact and
recommendations for this requested change. This request was submitted by the City Staff to
bring our ordinances and standards into compliance with the federal codes for manufactured
housing.
RECOMMENDATION: I concur with the research items and the proposed changes in
our zoning regulations. Even though one may question the federal regulations, it is clear that
we have no alternative or authority to override their regulations. Therefore, we should make
certain that we are compatible with the federal regulations.
ACTION REQUIRED: Approval of Ordinance 1286 on 1st reading should be
completed at this meeting.
ORDINANCE NO. 1286
AN ORDINANCE AMENDING SECTION 27.22.030 AND 27.37.010 (133) OF THE
KALISPELL ZONING ORDINANCE, (ORDINANCE NO. 1175), BY AMENDING THE
DESIGN STANDARDS FOR SINGLE FAMILY DWELLINGS TO ALLOW FOR
MANUFACTURED HOUSING MEETING U.S. HOUSING AND URBAN DEVELOPMENT
STANDARDS, AND DECLARING AN EFFECTIVE DATE.
WHEREAS, the City of Kalispell, has submitted a written
request to amend Section 27.22.030 and Section 27.37.010 (133) of
the Kalispell Zoning Ordinance, by requesting that said Sections be
amended to allow for "manufactured housing " meeting the Federal
Manufactured Housing and Safety Standards Act of 1974 and U.S.
Housing and Urban Development standards, and
WHEREAS, the request was forwarded to the Kalispell City -
County Planning Board and Zoning Commission by the Flathead
Regional Development Office after having been evaluated under
27.30.020, Kalispell Zoning Ordinance, and
WHEREAS, FRDO evaluated the requested text amendment and
recommended that Sections 27.22.030 and 27.37.010 be amended to
provide for minimum standards to be met by "manufactured housing"
pursuant to HUD regulations, and
WHEREAS, the Kalispell City -County Planning Board and Zoning
Commission recommended that the text of the Kalispell Zoning
Ordinance be amended to provide for minimum standards to be met by
"manufactured housing" under HUD regulations, however, striking
language prohibiting manufactured housing which had been previously
located, and
WHEREAS, the City Council of the City of Kalispell considered
the report of the Flathead Regional Development Office, KZTA-98-1,
the Minutes of the Kalispell City -County Planning Board and Zoning
Commission, and the recommendation of said Commission.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF KALISPELL AS FOLLOWS:
SECTION I. That the Findings of Fact contained in
Flathead Regional Development Office
Report # KZTA 98-1, are hereby adopted as
the Findings of Fact of the City Council.
SECTION II. The City of Kalispell Zoning Ordinance,
Ordinance No. 1175, is hereby amended as
follows:
j:\wp\ord\manufac.wpd -1-
SECTION 27.37.030 Design Standards for Single
Family Dwellings. The purpose of this section is to
promote public health, safety, and welfare and to
ensure neighborhood compatibility by establishing
minimum standards for single family dwelling. All
single family dwellings shall comply with the
following standards:
1) All single family dwellings must be site
built or manufactured homes which are a
minimum of 20 feet at the narrowest
width.
2) All dwellings shall be placed on a
permanent foundation that meet applicable
building code requirements.
3) For factory assembled housing, all tow
bars, wheels and axles shall be removed
when the dwelling is installed.
Section 27.37.010 (133) Manufactured Home. A
single family dwelling, built off site in a factory
on or after January 1, 1990, that is placed on a
permanent foundation, is at least 1,000 square feet
in size, has a pitched roof and siding materials
that are customarily used on site -built homes, and
is in compliance with the applicable prevailing
standards of the United States Department of
Housing and Urban Development at the time of its
production.
SECTION II. All parts and portions of Ordinance No. 1175,
not amended hereby remain the same.
P%VSED • ! APPROVED BY THE CITY COUNCIL • ! SIGNED BY THE• O' 0'
THE CITY OF KALISPELL THIS DAY OF 1 1998.
Wm. E. Boharski, Mayor
ATTEST:
Theresa White
Clerk of Council
j:\wp\ord\manufac.wpd -2-
Flathead Regional Development Office
723 5th Avenue East - Room 414
Kalispell, Montana 59901
Phone: (406) 758-5980
Fax: (406) 758-5781
March 24, 1998
Clarence Krepps, City Manager
City of Kalispell
P.O. Box 1997
Kalispell, MT 59903
Re: Zoning Ordinance Text Amendment for Manufactured Housing
Dear Clarence:
The Kalispell City -County Planning Board met in regular session on Tuesday, March
10, 1998 and held a public hearing on a request by the City of Kalispell for a text
amendment to Section 27.22.030, Design Standards for Single -Family Dwellings of
the Kalispell Zoning Ordinance. The proposed amendments are intended to address
the current conflict between the zoning ordinance and the federal act regulating
manufactured housing.
Narda Wilson with the Flathead Regional Development Office presented a staff report
and discussed several issues relating to manufactured housing. She made several
recommendations including that the specific language relating to construction
standards be deleted and that a new definition of manufactured housing be adopted.
During the public hearing, Diana Harrison, Zoning Administrator for the City of
Kalispell, spoke in favor of the proposed changes. No one spoke in opposition. The
Board discussed the recommendations made by the staff. An amendment to the
recommendation was made to delete the phrase "... and have not been previously
" The motion to amend passed on a vote of six in favor and three opposed. A
motion was made and adopted on a vote of seven in favor and two opposed to forward
a recommendation to City Council to make the amendments to the Kalispell Zoning
Ordinance as modified.
Please schedule this matter for the regular City Council meeting of April 6, 1998.
Please contact this Board or the Flathead Regional Development Office if you have any
questions regarding this proposal.
Sincerely,
Kalispell City -County Planning Board
jt�� �� (4��
Therese Fox Hash
President
Providing Community Planning Assistance To:
• Flathead County • City of Columbia Falls • City of Kalispell • City of Whitefish •
Zoning Text Amendment - Manufacutred Housing
March 24, 1998
Page 2
TFH/NW/eo
Attachments: FRDO Report #KZTA-98-1 /Application Materials
Draft minutes of the meeting of March 10, 1998
c w/Att: Theresa White, Kalispell City Clerk
H:... \TRANSMIT\ KALISPEL\ 1998 \KZTA98-1
CITY OF KALISPELL
REQUEST FOR ZONING TEXT AMENDMENT - MANUFACTURED HOUSING
FLATHEAD REGIONAL DEVELOPMENT OFFICE
STAFF REPORT #KZTA-98-1
MARCH 2, 1998
A report to the Kalispell City -County Planning Board and the Kalispell City Council
regarding a request for a zoning text amendment relating to manufactured housing.
A public hearing has been scheduled before the Kalispell City -County Planning
Board for March 10, 1998 beginning at 7:00 PM in the Kalispell City Council
Chambers. The Planning Board will forward a recommendation to the Kalispell City
Council for final action.
BACKGROUND INFORMATION
The applicants are proposing to amend Section 27.22.030, of the Kalispell Zoning
Ordinance, Design Standards for Single Family Dwellings in order to reconcile a
conflict between the Kalispell Zoning Ordinance and the Federal Manufactured
Housing and Safety Standards Act of 1974.
A. Petitioner and Owners: Clarence Krepps, City Manager
City of Kalispell
P.O. Box 1997
Kalispell, MT 59901
(406)758-7701
B. Area Effected by the Proposed Changes: Any area within the Kalispell
zoning jurisdiction which allows single family dwelling would potentially be
effected by the proposed change. This would include all of the residential and
residential apartment zoning districts.
C. Proposed Amendments: Specific amendments have not been proposed by
the applicants, but the staff of the Flathead Regional Development Office has
been directed to make a recommendation to the planning board and city
council which reconciles the conflict between the local zoning ordinance and
the federal law regulating manufactured housing.
D. Staff Discussion: Currently there is a conflict between the Kalispell Zoning
Ordinance, Section 27.22.030, Design Standards for Single Family Dwellings,
and the Federal Manufactured Housing and Safety Standards Act of 1974,
hereinafter referred to as the federal act. In considering this matter, other
issues relating to manufactured housing will be discussed because they will
undoubtedly arise in considering the use of manufactured housing as a
whole. In the discussion that follows the staff will consider the following
issues:
Federal preemption of standards for manufactured housing as they relate
to HUD housing standards and the Uniform Building Code.
Page 1 of 9
2. The constitutionality of design standards for manufactured housing
which are not applicable to conventional housing.
3. Making adequate provisions within the zoning ordinance to allow for
manufactured housing within the community.
4. Effect of the 1993 legislative amendments to Montana's municipal zoning
laws.
Issue 1: The section of the Kalispell Zoning Ordinance which is being
proposed for amendment deals with design standards for manufactured
housing. This section places additional and different construction standards
on manufactured housing in the City of Kalispell which is preempted by
federal law. These construction standards are preempted because they differ
from HUD standards. The following section of the zoning ordinance is
verbatim. The sections of the zoning ordinance in italics are problematic:
27.22.030: Design Standards for Single Family Dwellings. The purpose of
this section is to promote public health and safety by establishing
minimum building standards for single family dwellings. All single
family dwellings shall comply with the following standards:
All single family dwellings must be site built or manufactured
homes bearing an Insignia of Approval from the building codes
division of the State of Montana. Said insignia verifies that the
factory built building complies with all Montana building codes
related to plumbing, heating, electrical and structural.
2. All dwellings shall be placed on a permanent foundation that
meets applicable building code requirements. Manufactured
homes not meeting the Insignia of Approval as set forth in Section
27.22.030 (1) shall be permitted only in approved manufactured
home parks or manufactured home subdivisions.
3. For factory assembled housing, all tow bars, wheels, and axles
shall be removed when the dwelling is installed.
You will note that there is specific language in this section which states that
a manufactured home must "bear(ing) an Insignia of Approval from the building
codes division of the State of Montana. Said insignia verifies that the factory
built building complies with all Montana building codes related to plumbing,
heating, electrical and structural." Additionally this section states
"Manufactured homes not meeting the Insignia of Approval as set forth in Section
27.22.030 (1) shall be permitted only in approved manufactured home parks or
manufactured home subdivisions." These two sections of the ordinance are in
conflict with the federal act governing manufactured housing.
Page 2 of 9
Enclosed with this report is a letter dated January 25, 1996 from the State
Attorney General's Office which was written by Assistant Attorney General,
George Schunk addressed to the Joe Leckie, Laurel City Attorney. This letter
addresses the City of Laurel's previously held policy which prohibited
manufactured homes which were constructed to Housing and Urban
Development (HUD) standards but not Uniform Building Code (UBC)
standards from being placed in districts zoned for structures which meet UBC
standards.
Like the City of Laurel, the City of Kalispell has adopted the Uniform Building
Code as their building standard. The Montana Building Codes Division,
which is mentioned in the zoning ordinance, has adopted the UBC for
evaluating the structural elements of preconstructed buildings. Therein lies
the conflict. In this area, the UBC sets a higher standard of construction
than does the HUD standard, particularly as it relates to snow and wind
loads.
On page four, paragraph four of Assistant Attorney General Schunk's letter
he references a letter sent to the planning director of the City of Laurel from
the director of the Office of Manufactured Housing and Regulatory Functions,
United States Department of Housing and Urban Development which states
that the City of Laurel's requirement that manufactured housing meet UBC
standards may be preempted by the federal act. The federal act states in
effect that no state or local political subdivision of a state shall have any
authority to establish or to continue in effect any construction or safety
standard relating to a manufactured home which is not identical to the
federal manufactured home construction and safety standard.
Since the UBC code places a standard which is higher and therefore not
"identical" to the federal requirement, the UBC standards are preempted by
the federal act. Mr. Schunk's letter goes on to cite two court cases in which
this issue was clearly addressed Scurlock v. City of Lynn Haven, (Florida) and
Colorado Manufactured Housing v. Pueblo County (Colorado). With these
facts in evidence, it is clear that local jurisdictions are without authority to
set a different standard whether it be an equivalent standard or a higher
standards. The federal act preempts this authority.
Also included with this staff report is a "Statement of Policy" from the
Department of Housing and Urban Development dated April 24, 1997
regarding local zoning and manufactured housing. Page one paragraph two
states that "If a locality is attempting to regulate and even exclude certain
manufactured homes through zoning enforcement that is based solely on a
construction and safety code different that that prescribed by the Act, the
locality is without authority to do so."
There is, however, no HUD standard established by the federal act which
relates to foundation construction for manufactured homes. HUD only
requires that the manufacturer included a set of engineered foundation plans
for each unit. It would therefore be incumbent upon the City to establish
Page 3 of 9
foundation standards for manufactured housing. The UBC has building code
standards for foundations for manufactured homes. The manufactured
homes being sold should have engineered foundation plans, which is required
by HUD, which will satisfy the local building code requirements.
Also included in the packet of informational material is a copy of an article
from Consumer Reports regarding manufactured housing. It states that the
majority of complaints regarding manufactured housing are due to
deficiencies in the initial installation. This further emphasizes the
importance of adequate foundation requirements, a matter currently under
consideration by HUD.
Issue 2: In discussing this matter, the issue of design standards for
manufactured housing which differ from that of conventional single family
housing needs to be discussed and addressed. It has been determined by the
courts and the federal act that it is within the authority of local governments
to establish design standards for manufactured housing to enhance their
compatibility with conventional single family homes. Please note that on
page nine, paragraph three Assistant A.G. Schunk goes to cite two court
cases (City of Brookside Village and Village of Moscow), that "the (federal act)
preempts the file of mobile home construction safety, leaving the land use or
zoning aspect to the state and/or local governments."
In the case City of Brookside Village, the court found that the regulation of
manufactured housing which was not related to construction and safety
standards furthered a legitimate purpose of improving the aesthetic of an
area and therefore advanced a reasonable government interest. Therefore, it
is not necessary to have the same design standards for manufactured
housing as for conventional housing. It is recognized by the courts that
because of the inherent differences between manufactured housing and
conventional housing, design standards for manufactured housing which
promote neighborhood compatibility can be considered reasonable use of
police powers conferred upon local governments.
Furthermore, on page three paragraph four in the "Statement of Policy" from
the Department of Housing and Urban Development dated April 24, 1997 this
memo states that "Generally, .the adoption and enforcement of a local zoning
ordinance regulating the location of manufactured homes has not be
subjected to the regulatory authority of the act because such actions are
exercises of the locality's authority to determine proper land use." It is the
primary intent of the amendment to eliminate the construction standards in
the zoning ordinance which conflict with HUD requirements, i.e. Montana
Building Codes standards, not to deprive local government of their ability to
regulate land use and land use standards.
Zoning may not regulate the construction and safety standards of
manufactured housing, but may regulate the type and location of
manufactured housing through zoning based upon aesthetic, neighborhood
character and proper land use considerations.
Page 4 of 9
Issue 3: A separate but related issue is the concern of providing areas for
manufactured housing within a community. There is a significant Montana
case Mack T Anderson Ins. Agency, Inc. v. City of Belgrade (1990).
Discussion of this case is included in the letter for Assistant Attorney General
George Schunk and also, more succinctly in the Montana Planning and
Zoning Law Digest, April 1996. Included with this staff report is a short
section from the Digest addressing the of the regulation of manufactured
housing. In brief, this case concludes that a community must make a
reasonable provision for manufactured housing, but because of the special
characteristics of manufactured housing, it may warrant their separate
regulation. "Thus, they may be confined to mobile home parks, or may be
excluded from residential districts. Absent exceptional circumstances, the
exclusion of this use from a residential district is not regarded as
unreasonable" (Mack T. Anderson Ins. Agency, Inc. v. City of Belgrade).
Although there has been little interest in developing manufactured home
parks within the city of Kalispell, there are provisions for manufactured home
parks and manufactured home subdivisions in the RA-1 and RA-2 zoning
districts. Both are listed as conditionally permitted uses. It would be the
staff's opinion that this could be considered a "reasonable" accommodation to
allow this type of housing, but it certainly does not "promote" it.
Issue 4: In 1993 the Montana state legislature adopted changes to the
planning statutes related to manufactured housing. This section of the
planning statutes have been included with this staff report. You will note
that language was adopted which states that "In proceeding for a permit or
variance to place manufactured housing within a residential zoning district,
there is a rebuttable presumption that placement of a manufactured home
will not adversely affect property values of conventional housing."
Additionally, a definition for "manufactured housing" was adopted which is as
follows: "...means a single family dwelling, built off site in a factory on or
after January 1, 1990, that is placed on a permanent foundation, is at least
1,000 square feet in size, has a pitched roof and siding and roofing materials
that are customarily, as defined by local regulations, used on site -built
homes, and is in compliance with the applicable prevailing standards of the
United States department of housing and urban development at the time of
its production."
You will note on page 12, paragraph three in the letter from Assistant
Attorney General George Schunk he states "This legislative amendment has
no effect upon the authority of local governments to enact ordinances
discriminating between manufactured housing and site built homes. The
amendment is applicable to proceedings to secure a permit or variance that
may be established by local ordinance."
Page 5 of 9
Conclusion and Recommendation: In conclusion, it is not within the power of
local governments to regulate manufactured housing based upon
construction standards which differ from the federal construction and safety
standards. However, local governments have a legitimate right to regulate the
type and location of manufactured housing to promote aesthetics and
neighborhood compatibility within a community. It would be the staff
recommendation that the following amendments be made to the Kalispell
Zoning Ordinance:
27.22.03: Design Standards for Single Family Dwellings. The purpose of this
section is to promote public health, an4 safety and welfare and to ensure
neighborhood compatibility by establishing minimum bui4ding standards for
single family dwellings. All single family dwellings shall comply with the
following standards:
All single family dwellings must be site built or manufactured homes which
are a minimum of 20 feet at the narrowest width and have not been
previously located or ma-aufaetured hemes bearing of Appre ,1
fFem the—buil eedes &4sien of the State of Mentana. Said ;„sigma
verifies that the faete -y bui t 1-,,,i4di - g eemplies ,A tY, 11 T Re twq A 1- ui—1 ing
.,.aes related to ,-.1,,,,•,1-,ing heating, eleetrieal .,,-,.1 straet,,,-.,1
2. All dwellings shall be placed on a permanent foundation that meet applicable
building code requirements. Manufaetured 1,^,.,.,es not meeting the r,.,si ;rPn,
of Approval as sot f rtl, in Seetie 27 22 030 (1) sha]4 be ., i-a- tted .,nly ;
3. For factory assembled housing, all tow bars, wheels, and axles shall be
removed when the dwelling is installed.
And amend Section 27.37.010, (133). Manufactured Home. A single family
dwelling, built off site in a factory on or after January 1, 1990, that is placed
on a permanent foundation, is at least 1,000 square feet in size, has a
pitched roof and siding and roofing materials that are customarily used on
site -built homes, and is in compliance with the applicable prevailing
standards of the United States Department of Housing and Urban
Development at the time of its production. e faeter-y bui t struetuFe that ;
---- • --- ----- ----- --- --- r -r--- -- ---- •--a -- -- r------ ----- ----
net, __ ------
home, •
EVALUATION BASED ON STATUTORY CRITERIA
The statutory basis for reviewing a change in zoning is set forth by 76-2-205, M.C.A.
Findings of Fact for the zone change request are discussed relative to the itemized
criteria described by 76-2-203, M.C.A.
Page 6 of 9
Does the requested zone comply with the Master Plan?
The Kalispell City -County Master Plan has a housing section. This section
states that "manufactured homes on individual lots meeting all the placement
requirements of conventional housing and bearing the HUD seal should be
allowed to be located within the city of Kalispell so as to provide homeowners
with an economical housing alternative." The recommended amendments to
the zoning ordinance would comply with goals stated in the housing section
of the Kalispell City -County Master Plan.
2. Is the requested zone designed to lessen congestion in the streets?
The proposed amendments would not impact the types of uses allowed in a
district and would therefore have no impact to increase or lessen congestion.
Traffic associated with single family homes would be unaffected.
3. Will the requested zone secure safety from fire, panic, and other dangers?
The intent of the Department of Housing and Urban Development safety and
construction standards is to provide a uniform set of standards for
manufactured housing which would allow national distribution and efficiency
in construction. It will be accepted that these construction standards will
secure safety from fire, panic and other dangers.
4. Will the requested change promote the health and general welfare?
The general health and welfare of the public will be promoted by encouraging
the manufactured housing which can promote neighborhood character and
compatibility while providing different types of housing choices.
5. Will the requested zone provide for adequate light and air?
Adequate light and air would be provided through development standards
relating to the density in the district, setback requirements for structures,
and lot coverage.
6. Will the requested zone prevent the overcrowding of land or undue
concentration of people?
Development standards in the district will prevent the overcrowding of land
through standards such as lot coverage, parking and landscaping
requirements. The overall density of the area and development standards
would not be altered by the proposed changes to allow manufactured housing
in single family and multifamily neighborhoods.
Page 7 of 9
7. Will the requested zone facilitate the adequate provision of transportation,
water, sewerage, schools, parks, and other public requirements?
Public services and facilities would generally be anticipated to be available to
area with the city where manufactured housing would be located. The
proposed changes would not impact the facilitation of public services and
utilities.
8. Does the requested zone give consideration to the particular suitability of the
property for particular uses?
With adequate performance standards applied to manufactured housing, it
can be made aesthetically compatible with conventional single family
neighborhoods. The proposed amendments do no change the uses allowed
within a district since manufactured housing is still a single family use. The
proposed changes attempt to set standards which promote the suitability of
manufactured housing within conventional single family neighborhoods.
9. Does the requested zone give reasonable consideration to the character of the
district?
The proposed amendments specifically with regard to the width of the
manufactured home, requiring that have been previously located and placed
on a properly engineered foundation are intended to give reasonable
consideration to the character of a single family neighborhood and to promote
compatibility.
10. Will the proposed zone conserve the value of buildings?
The performance standards relating to the size and siting of manufactured
housing is intended to conserve the value of the homes in a conventional
single family neighborhood.
11. Will the requested zone encourage the most appropriate use of the land
throughout the jurisdiction?
One of the goals in allowing manufactured housing within the community is
to provide different housing option and to locate the types of housing within
appropriate neighborhoods and zoning districts. The performance standards
related to manufactured housing are believed to encourage the most
appropriate use of land throughout the planning jurisdiction.
RECOMMENDATION
Staff recommends that the Kalispell City -County Planning Board adopt FRDO staff
report #KZTA-98-1 as findings of fact and, based on these findings, recommend to
the Kalispell City Council that the following amendments be made to the Kalispell
Zoning Ordinance:
Page 8 of 9
27.22.03: Design Standards for Single Family Dwellings. The purpose of this
section is to promote public health, and safety and welfare and to ensure
neighborhood compatibility by establishing minimum big standards for
single family dwellings. All single family dwellings shall comply with the
following standards:
1. All single family dwellings must be site built or manufactured homes which
are a minimum of 20 feet at the narrowest width and have not been
previously located or- manufaetur-ed hemes beaFing of Ar ,1
Lrem the b' ee es o4sien of the Montana. Said , u t4 +-the €aeteryb b��g-eemplies-mot 11 Ment-a� building
vcx=ares^trzccc -ica- za�
2. All dwellings shall be placed on a permanent foundation that meet applicable
building code requirements. Manufaetufedhemes not meeting the insiy
3. For factory assembled housing, all tow bars, wheels, and axles shall be
removed when the dwelling is installed.
And amend Section 27.37.010, (133). Manufactured Home. A single family
dwelling built off site in a factory on or after January 1, 1990, that is placed
on a permanent foundation, is at least 1,000 square feet in size, has a
pitched roof and siding and roofing materials that are customarily used on
site -built homes, and is in compliance with the applicable prevailing
standards of the United States Department of Housing and Urban
Development at the time of its production. A faetery built straetur-e-that i
manufaetur-ed or eenstnieted under- the authority of 42 United States Cede
_--- ------ --- --- r--r--- -- --------a -- - r-----...._----- ----I ___ __ .,....,.,
net have peFmanently attaehed to its body or- ffame any wheels E)r- aides. A
H: \... \ KZTA\ 98 \ KZTA98-1
Page 9 of 9
ATTORNEY GENERAL
STATE OF MONTANA
Joseph P. Mazurek
Attorney General
January 25, 1996
Mr. V. Joe Leckie
Laurel City Attorney
115 West First Street
Laurel, MT 59044
Dear Mr. Leckie:
Department of justice
215 North Sanders
PO Box 201401
Helena,.NIT 59620-1401
On September 1, 1995, you requested an Attorney General's Opinion
on the following question:
Can the City of Laurel prohibit manufactured homes from
being placed in districts zoned for structures
constructed to UBC standards if the manufactured house is
constructed to HUD standards but not to UBC standards?
I have completed our analysis of whether your request furnishes an
appropriate basis for a formal opinion. For the reasons stated
below, it has been determined that an Attorney General's Opinion
should not be issued.
First, it has long been the policy of this office generally to
refrain from addressing in Attorney General's Opinions questions
concerning federal preemption of state or local law. This policy
reflects the fact that the principal purpose .of the opinion process
is to construe and apply state law and that the Attorney General's
principal expertise lies in interpretation of state, not federal,
law. Second, the opinion process is not an appropriate forum for
the determination of fact questions. For that reason this office
ordinarily does not issue opinions when the outcome is affected by
facts which are disputed or not capable .of ready development. The
opinion process functions most effectively when only questions of
law are presented. Lastly, the opinion process's purpose is to
resolve the issues conclusively, not simply to give a particular
party potential advantage in a subsequent lawsuit. It is unlikely
here that any determination by the Attorney General will resolve
the controversy between the City of Laurel and other interested
parties unless he concludes the zoning restriction in question is
preempted. Without a substantial measure of assurance that the
-opinion's -determination- wi11 accepted by all parties
irrespective of its outcome, it has not been the practice of this
office to issue the requested opinion.
LEGAL SERVICES DIVISION
Appellate Legal Services Bureau • Agency Legal Services Bureau • County Prosecutor Services Bureau
TELEPHONE: (406) 444-2026 FAX. (406) 444-3549
Mr. V. Joe Leckie
January 25, 1996
Page 2
Although we have stated our reasons for not issuing a formal
opinion, it appears that the City of Laurel and interested parties
will benefit from the legal research we have undertaken in
reviewing your request. For this reason I offer the following
legal analysis of the issues presented. While this analysis may
not be considered an Opinion of the Attorney General, I hope it
proves to be of assistance.
I. FACTUAL AND LEGAL BACKGROUND
The City of Laurel has enacted local zoning ordinances pursuant to
authority granted local governments under Mont. Code Ann. § 76-2-
301. This zoning authority has been extended by the City of Laurel
to encompass a jurisdictional area within one mile of the city
limits. On or about June 22, 1995, Terry and Kristi O'Toole moved
a manufactured home [O'Toole home] onto a lot within the zoning
jurisdiction of Laurel in a area zoned "Residential estates 20,000"
[RE 20,000 district].' The O'Toole home is built in accordance
with construction and safety standards promulgated by the United
States Department of Housing and Urban Development [HUD standards]
under the authority of the National Manufactured Housing and Safety
Standards Act of 1974 [the Federal Act]. 42 U.S.C.A. §§ 5401
through 5426.' The O'Toole home is not constructed to meet
standards established by the Uniform Building Code [UBC standards] .
The O'Toole home is considered a "trailer or mobile home" under the
Laurel City Code, which defines this phrase as follows:
"Trailer or mobile home" means:
'The RE 20,000 district is intended to provide for low -
density, single-family, residential development in areas not
usually served by a public water system or sewer system. Laurel
City Code § 17.12.040.
'The federal Act provides at 42 U.S.C.A. § 5403(a):
The Secretary [of the Department of Housing and Urban
Development], after consultation with the Consumer
Product Safety Commission, shall establish by order
appropriate Federal manufactured home construction and
safety standards. Each such Federal manufactured home
standard shall be reasonable and shall meet the highest
standards of protection taking into account existing
State -,and- local.. laws relating -to manufac-tured_home-safety
and construction.
The applicable federal standards have been promulgated as
administrative rules. See 24 C.F.R. §§ 3280.1 through 3280.904 and
3282.1 through 3282.544.
Mr. V. Joe Leckie
January 25, 1996
Page 3
A. Any dwelling larger than 256 square feet in area
which is either wholly or in substantial part
manufactured at an off -site location and any
movable or portable dwelling over 32 feet in length
and over eight feet wide, constructed to be towed
on its own chassis and designed without permanent
foundation for year-round occupancy, which includes
one or more components that can be retracted for
towing purposes and subsequently expanded for
additional capacity, or of two or more units
separately towable but designed to be joined into
one integral unit, as well as a portable dwelling
composed of a single unit;
B. This definition does not include any dwelling of
preconstructed nature meeting applicable local
building codes pertaining to on -site assembly of
structures.
Laurel City Code § 17.08.1120. The City of Laurel has adopted the
UBC standards as their local building code. The City interprets
subpart B of the mobile home definition to mean a manufactured home
built to UBC standards does not constitute a "mobile home" for
purposes of the Laurel City Code. The City allows manufactured
homes built to UBC standards to be placed in any zoning district,
including the RE 20,000 district in which the O'Toole home
currently is located. Manufactured homes built to HUD standards,
such as the O'Toole residence, are considered mobile homes and are
not permitted to be sited in the RE 20,000 district.
The Laurel City Code allows the placement of mobile homes
constructed to HUD standards in areas that have been zoned a
"Residential Mobile Home District" [RMHD district]. See Laurel
City Code Table § 17.16.010 and § 17.24.030.3
The planning director for the City of Laurel wrote the O'Tooles on
July 7, 1995, notifying. them that their mobile home was not allowed
in the RE 20,000 district. Specifically, the planning director
stated: "Unless you can show that your dwelling complies with the
State's Uniform Building Code, it is not allowed in a R20,000 zone
[sic] . "
3Section 17.24.030 of the Laurel City Code provides:
Permitted Uses [within-.-.the--RMHa]---._
The following use is permitted:
Single-family mobile home dwellings when located within mobile
home parks or on individual lots within a mobile home subdivision.
Mr. V. Joe Leckie
January 25, 1996
Page 4
No subsequent action has been taken by the City of Laurel seeking
the removal of the O'Toole residence. The O'Toole home has been
serviced with necessary utilities and the O'Tooles currently reside
in the home.
The Montana Manufactured Housing and Recreational Vehicle
Association [MMHRV Association] wrote the Laurel City Attorney on
July 28, 1995 suggesting that the position of the City violates
both the Federal Act and HE 375 enacted by the Fifty -Third Montana
Legislature.' The MMHRV Association indicated its intention to
pursue the matter judicially if a positive resolution could not be
reached.
The city planning director additionally received a letter dated
August 25, 1995, from the director of the Office of Manufactured
Housing and Regulatory Functions, United States Department of
Housing and Urban Development, stating that the City of Laurel's
zoning regulations may be preempted by the Federal Act. The
Federal Act provides at 42 U.S.C.A. § 5403(d):
Supremacy of Federal Standards
Whenever a federal manufactured home construction and
safety standard established under this chapter is in
effect, no State or local 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.
In your memorandum supporting the opinion request you cite Mont.
Code Ann. §§ 76-2-301 (general authority for municipalities to
enact zoning ordinances) and-301(5) as support for the City's
authority to restrict "non-UBC manufactured housing" [housing built
to HUD standards]. Mont. Code Ann. § 76-2-302(5) provides:
Nothing contained in this section may be construed to
limit conditions imposed in historic districts, local
design review standards, existing covenants, or the
ability to enter into covenants pursuant to Title 70,
chapter 17, part 2.
'The MMHRV Association also challenged the applicability of
certain private covenants to the O'Toole home. As the
interpretation and enforcement of private covenants is outside the
jurisdiction of local governments and does not form a basis of your
opinion request, the issue has not been reviewed.
Mr. V. Joe Leckie
January 25, 1996
Page 5
You also rely upon Mack T. Anderson Insurance Agency, Inc. v. City
of Belarade, 246 Mont. 112, 803 P.2d 648 (1990), in which a zoning
regulation of the City of Belgrade that distinguished between
housing built to UBC standards and housing built to HUD standards
was upheld as within the police power of the municipality. You
conclude that the City of Laurel has the authority to require that
all structures comply with the UBC standards and that the Federal
Act should not preempt the local government from exercising this
authority.
II. LEGAL ANALYSIS
The factual and legal background to the opinion request presents
three issues that may be relevant to resolution of the question
presented: (1) whether local government zoning regulations that
exclude housing built to HUD standards from certain residential
areas are preempted by the Federal Act; (2) whether a local
government through the exercise of its police power may
constitutionally restrict housing built to HUD standards to certain
zoning districts; and (3) whether enactment of HB 375 in 1993
limits the zoning authority of local governments with respect to
housing built to HUD standards. The following discussion will
examine each of these issues.
A. Federal Preemption Case Law
The preemption language contained within the Federal Act has been
set forth above. Federal and state courts that have applied the
Federal Act's preemption language to similar local zoning
ordinances have reached different conclusions as to its effect.
The following discussion will summarize these decisions and then
address the City of Laurel's regulation of the O'Toole residence.
One of two significant opinions in this area is the Eleventh
Circuit Court• of Appeals decision in Scurlock v. City of Lynn
Haven, Florida, 858 F.2d 1521 (llth Cir. 1988). Scurlock owned a
mobile home that satisfied HUD standards. Scurlock desired to
place the home on residentially zoned property in Lynn Haven. The
city zoning code excluded from residentially zoned property any
home that did not meet the Southern Standard Building Code, the
National Electrical Code, and the Electrical Code of the City of
Lynn Haven (collectively, SSBC standards] or did not bear the seal
of the Florida Department of Community Affairs. The city allowed
mobile homes to be placed in special mobile home districts and in
unzoned _are.as__of. the .city__ --__The --- S.curlock---mob-ile- home -did -not--bear--
the seal of the State or meet SSBC standards.
Expert testimony at trial indicated that the standards (SSBC and
HUD) are equivalent, but not identical. The federal district court
concluded that the city could not use noncompliance with SSBC
Mr. V. Joe Leckie
January 25, 1996
Page 6
standards to prevent mobile homes from being sited on residentially
zoned property. The trial court found the Act, HUD regulations and
Florida statutes precluded the city from imposing additional
construction requirements upon mobile homes built in compliance
with HUD regulations.
Upon review, the Eleventh Circuit Court of Appeals noted that the
Act undoubtedly constitutes consumer safety legislation and that
the city was attempting to exclude the Scurlock's mobile home from
its residentially zoned property based solely on its safety code.
As stated by the district court and quoted by the Court of Appeals:
The city has not attempted to explain why a mobile home
is accepted as safely constructed when it is located in
a designated mobile home park or an unzoned area of the
city, while maintaining that it is not safely constructed
if it is located within a residentially -zoned area.
Scurlock v. City of Lynn Haven, 858 F.2d at 1527. The Court of
Appeals found the city could not attempt land use and planning
through the guise of a safety provision in an ordinance when that
safety requirement is preempted by federal law. The court noted:
"In this case we deal not with aesthetic regulations but with
structural ones." Scurlock, 858 F.2d at 1527. The Scurlock home
was excluded from the residentially zoned property based on
distinctions as to construction and manufacturing techniques, an
area the Court of Appeals found preempted by federal and state
law.5
5The Scurlock opinion was followed by the Colorado Court of
Appeals in Colorado Manufactured Housing v. Pueblo County, 857 P.2d
507 (Colo. Ct. App. 1993). In Pueblo County an owner of a
manufactured home built to HUD standards under the Act attempted to
obtain a building permit to install his home on property zoned
single-family residential (R-2). Pueblo County zoning regulations
allowed manufactured homes built to Uniform Building Code standards
(UBC) to be installed on R-2 property as a matter of right, but
required a building permit to install all other manufactured homes.
After Pueblo County rejected the homeowner's application for a
building permit, the homeowner rescinded his sales contract; the
manufacturer and CMHA brought suit alleging economic injury. The
trial court found the plaintiffs had failed to allege injury -in -
fact and dismissed the claims for lack of standing.
Upon appeal, the Colorado Court of Appeals reversed the trial
court, _ finding the_ plaint iffs___had__s.tandi.ng__-to allege--preemption.-
The court, citing Scurlock, based its standing holding on the Act' s
express language which preempts local regulations which impose
standards of construction and safety different from those set forth
in the Act.
Mr. V. Joe Leckie
January 25, 1996
Page 7
The other seminal judicial opinion in this area is City of
Brookside Village v. Comeau, 633 S.W.2d 790 (Tex.), cert. denied,
459 U.S. 1087 (1982). Here, a suit was brought to enjoin the city
from enforcing an ordinance which prohibited the location of mobile
homes built to HUD standards outside an established mobile home
park.' At trial, the City of Brookside Village articulated several
reasons for enactment of this ordinance, including the provision of
water, sewer treatment, fire suppression, and the protection Iof
property values. Upon review, the Texas Supreme Court found that
the ordinances bear a substantial relationship to the public
health, safety, morals or general welfare and upheld their
constitutionality.
In reference to preemption by the Federal Act, the Court said:
The referenced state and federal legislation has, to an
extent, preempted the field as to construction safety,
and installation of mobile homes. We find nothing in the
statutes, however, that creates a conflict with the
Brookside Village ordinances regulating the location of
mobile homes. Accordingly, ordinances 58 and 78, insofar
as they do not pertain to the subject matter of the
regulation under the federal and state acts, are upheld
as compatible with federal and state legislation.
City of Brookside Village, 633 S.W.2d at 796.
The reasoning of the Texas Supreme Court in City of Brookside
Village has been adopted in Michigan and Ohio. In Gackler Lard
Company, Inc. v. Yankee Springs Township, 398 N.W.2d 393 (Mich.
1986), plaintiff Gackler platted a 20-acre tract with 54 lots and
attempted to place "single -wide" mobile homes on certain lots. The
township only allowed mobile homes meeting the definition of
"dwelling" to be placed in this zoning district. "Dwelling" was
defined in the township's zoning ordinance as follows:
1. It complies with the minimum square footage requirements
[720 square feet] ;
2. It has a minimum width along any exterior side elevation
of 24 feet and a minimum internal height of seven and
one-half feet;
'While not expressly stated in the opinion, the mobile homed
_. at
issue was. built- -to - HUD- --standardsba ecuse --the-. plaintiff argue,
unsuccessfully, that mobile homes built to state or federal
standards are structurally as safe and aesthetically comparable to
conventional housing, thus rendering the purported justification
for dissimilar treatment of mobile homes arbitrary.
Mr. V. Joe Leckie
January 25, 1996
Page 8
3. It is firmly
on the site
code, which
space;
attached to a solid foundation constructed
in accordance with the township building
shall be a fully enclosed basement or crawl
4. It does not have exposed wheels, towing mechanisms,
undercarriage or chassis;
5. The dwelling is connected to a public sewer and water
supply or to such private facilities approved by the
local health department;
6. The dwelling contains storage area(s) either in a
basement located under said dwelling, in an attic area,
in a closet area or in a separate fully enclosed
structure on the site, . . . equal to not less than 151
of the interior living area of the dwelling;
7. The dwelling is aesthetically compatible in design and
appearance to conventionally on -site constructed homes;
8. The dwelling contains no additions of rooms or other
areas which are not constructed with similar materials
and are similar in appearance and with similar quality of
workmanship as in the original structure; and
9. The dwelling complies with all pertinent building and
fire codes.
Gackler challenged the regulatory ordinance as unconstitutional and
because it was preempted by state and federal law. Upon appeal,
the Michigan Supreme Court upheld the constitutionality of the
amended zoning ordinance, finding the zoning ordinance would
improve the aesthetics of the area, thereby advancing a reasonable
government interest.
On the preemption question the court found that the requirements of
the zoning ordinance were not standards regulating the construction
and safety of mobile homes; rather, they had for their purpose the
regulation of where mobile homes may be placed and under what
conditions. The Court did not address the fact that the definition
of "dwelling" included the requirement that the dwelling comply
with all pertinent building and fire codes. The Court concluded
that the ordinances were designed for the purpose of regulating
land use and did not conflict with construction standards
promulgated under the Federal Act. The Michigan Supreme Court
cited with approval City of Brook's ide_Vi11age,____supra_._�
In Villacge of Moscow v. Skeene, 585 N.E.2d 493 (Ohio Ct. App.
1989), the Village of Moscow brought an action to enjoin Skeene
from placing his single -wide mobile home unit upon a lot zoned
Residential A. Moscow's zoning ordinances allowed "single-family
Mr. V. Joe Leckie
January 25, 1996
Page 9
dwellings" in Residential A districts. "Dwelling" for purposes of
the code was defined as any building or structure, except a house
trailer or mobile home. "Mobile home" was defined by the village
code as a non -self-propelled vehicle designed or constructed for
use for human habitation, whether resting on wheels, jacks, blocks,
or other temporary foundation. Skeene intended to place his home
on a permanent foundation absent wheels, axles, and hitch.
Skeene argued, inter alia, that the Federal Act preempted the local
zoning code. The manufactured home Skeene wanted to locate in
Moscow was manufactured in accordance with HUD standards. The
Court of Appeals found that Skeene's mobile home was a "dwelling"
for purposes of the village code due to the removal of its wheels,
axles and hitch and placement on a permanent foundation. The court
found that Moscow must issue Skeene a zoning permit.
The trial court had found Moscow's building code restrictions
preempted by the Federal Act. While the appellate court ostensibly
affirmed the trial court on this issue, it clarified the lower
court's ruling and implicitly rejected Skeene's categorical
preemption challenge to Moscow's zoning regulations, relying on
City of Brookside Villacre and holding that "the [federal act]
preempts the field of mobile home construction safety, leaving the
land use or zoning aspects to the state and/or local governments."
Village of Moscow, 585 N.E.2d at 496.
B. Application of Federal Preemption Case Law to the City of
Laurel Zoning Ordinance
The case law outlined above may be summarized as follows. Courts
closely examine the grounds advanced by a municipality for adoption
of the respective ordinance. The basis for the ordinance is
generally established by testimony of city officials. Any city
ordinance that prohibits or limits the siting of manufactured
housing built to HUD standards solely on the grounds of state or
local construction codes will be found preempted by the Federal
Act. City ordinances limiting the siting of manufactured housing
built to HUD standards on grounds not related to construction,
structural integrity, and safety have not been found preempted.'
'Federal preemption case law has been similarly summarized in
Washington Manufactured Housing Association v. Public Utility
District No. 3, 878 P.2d 1213, 1216 (Wash. 1994), which concluded
that an energy efficiency program established by a countu waq nnt-
preempted by the federal Act:
It is clear state laws estan.Llsii.Lriq stricter
construction, safety or energy standards are federally
preempted. It is also clear that zoning laws that ban
manufactured homes or limit them to certain areas are not
Mr. V. Joe Leckie
January 25, 1996
Page 10
In holding that local ordinances were preempted, the Eleventh
Circuit Court of Appeals specifically noted: "In this case we deal
not with aesthetic regulations but with structural ones."
Scurlock, 858 F.2d at 1527. Therefore, to the extent that local
governments base ordinances that exclude manufactured housing built
to HUD standards from certain residential areas on traditional
zoning grounds, such as long-term planning, aesthetics, unique
qualities of manufactured housing, provision of water, sewer
treatment, fire suppression, and property values, such ordinances
may well be considered legitimate land use regulations and not
preempted by construction and safety standards established by the
Federal Act.
C. Constitutionality of Manufactured Housing Zoning
Restrictions
The Montana Supreme Court has unequivocally upheld the
constitutionality of zoning ordinances that restrict the location
of manufactured housing. In Mack T. Anderson Insurance Agency.
Inc. v. City of Belgrade, supra, the Court addressed the issue of
whether a local government's zoning ordinance that excluded
manufactured homes built to HUD standards from conventional
residential districts was a constitutional exercise of the police
power. The plaintiff insurance company applied for a building
permit to place a manufactured home built to HUD standards in an
area having an R-4 zoning designation. Under Belgrade's zoning
ordinance, manufactured homes meeting HUD standards were not
permitted within R-4 districts.' Manufactured homes were permitted
within R-2-M and R-S-M districts as a matter of right, and as a
conditional use when located in mobile homes parks within R-3 and
R-4 districts. "Modular homes," built to UBC standards, were
permitted as a matter of right within the R-4 district. The
plaintiff's application for a building permit was denied and an
administrative appeal and judicial review were pursued.
preempted if they are silent as to construction or safety
requirements. There is a distinction, however, between
a general zoning ordinance which is not preempted and an
ordinance banning placement of a manufactured home based
on noncompliance with state safety standards which is
preempted.
(Citations omitted.)
'The Belgrade zoning ordinance defined "manufactured home" as
factory -built or manufactured transportable residential structures
built to HUD standards. The Belgrade ordinance defined "modular
home" as factory -built structures built to UBC standards.
Mr. V. Joe Leckie
January 25, 1996
Page 11
On appeal to the Montana Supreme Court the insurance company argued
that no reasonable basis existed for allowing the placement of
modular homes built to UBC standards within the R-4 district and
for not allowing manufactured homes built to HUD standards in that
district. The insurance company did not raise a federal preemption
issue. However, the city argued that its ordinance prohibiting the
placement of mobile homes within the R-4 district was based on
broader grounds than safety including, but not limited to, a
concern for long-term planning, the unique qualities of
manufactured homes, and property values of surrounding residents.
The Montana Supreme Court held that the local government police
power not only allows, but requires, consideration of these matters
in zoning decisions and that they provide a legitimate basis for
regulation. The Court concluded:
In sum, if the municipality provides an adequate area for
manufactured home development, manufactured homes may be
excluded from conventional residential districts.
Mack T. Anderson Insurance Actency, 246 Mont. at 119, 803 P.2d
at 652. The Court had recognized in an earlier decision, Martz v.
Butte -Silver Bow Government, 196 Mont. 348, 353-54, 641 P.2d 426,
430 (1982), that a municipality must ensure that a fair share of
housing is within reach of persons of low and moderate incomes or
risk having restrictions declared unconstitutional as exclusionary.
In the Belgrade appeal there was evidence that 17 percent of the
vacant parcels of land in the area were zoned for manufactured
housing built to HUD standards. The Court found that Belgrade
provided a fair share of housing within the reach of persons of low
and moderate incomes. The Belgrade ordinance was upheld as a valid
exercise of the city's police power.
A factual issue exists here that prevents further analysis as to
the constitutionality of the Laurel zoning ordinance: Does Laurel
provide an adequate area for manufactured housing meeting HUD
standards? In Martz the Supreme Court identified various factors
relevant to determining whether municipal zoning has an
impermissibly exclusionary effect on manufactured homes satisfying
HUD but not UBC standards and remanded the case for further fact-
finding by the district Court. 196 Mont. at 355-56, 641 P.2d
at 429-31. Although the exclusionary zoning issue has not been
raised directly in the opinion request, the City may wish to
consider the Martz factors in assessing its overall legal position
with respect to the propriety of the present restriction on the
siting of manufactured housing. In the absence of a factual record
addressing this issue, definitive review by this office is
precluded. See Martz,_. 19.6 Mont .__at_35---5-6-r-6-41--R- 2d- at--4-31- - -
Mr. V. Joe Leckie
January 25, 1996
Page 12
D. Effect of 1993 Legislative Amendments
The 1990 decision of Mack T. Anderson Insurance AQencv established
that local governments may exclude manufactured homes from
conventional residential districts if the government provides an
adequate area for manufactured home development. In response to
this decision, HE 375 was introduced into the Fifty-third Montana
Legislature. The bill was designed, in the words of its sponsor,
"to prohibit zoning regulations that discriminate between
manufactured and site -built homes." See Testimony of Rep.- Ray
Brandewie and Ex. 8, House Local Gov't Comm. Hr'g, Feb. 11, 1993,
and Ex. 2, Senate Local Gov't Comm.-, Mar. 18, 1993.9 Notwith-
standing this expectation, the Legislature enacted amendment
language to Mont. Code Ann. H 76-2-202 and -302 that created a
presumption regarding property values in a proceeding for a permit
or variance:
In a proceeding for a permit or variance to place
manufactured housing within a residential zoning
district, there is a rebuttable presumption that
placement of a manufactured home will not adversely
affect property values of conventional housing.
Mont. Code Ann. H 76-2-202(3) and-302(3).10 This legislative
amendment has no effect upon the authority of local governments to
enact ordinances discriminating between manufactured housing and
site -built homes. The amendment is applicable to proceedings to
secure a permit or variance that may be established by local
ordinance. Such a proceeding has not been initiated by the
O'Tooles and therefore HE 375 is not relevant to your opinion
request.
9H13 375 was entitled: "An Act Creating a Presumption with
Respect to Zoning Regulations that Discriminate Between Certain
Manufactured and Site -built Housing; and Amending Sections 76-2-202
and 72-2-302, MCA."
10HB 375 additionally defined "manufactured housing" to include
manufactured homes built to HUD standards:
As used in this section, "manufactured housing" means a
single-family dwelling, built offsite in a factory on or
after January 1, 1990, that is placed on a permanent
foundation, is at least 1,000 square feet in size, has a
pitched roof and siding and roofing materials that are
customarily, as defined by local re.gulat<ions.,._used--on -
site -built homes, and is in compliance with the
applicable prevailing standards of the United States
department of housing and urban development at the time
of its production. A manufactured home does not include
a mobile home, as defined in 61-4-309, or a housetrailer,
as defined in 61-1-501.
Mont. Code Ann. §§ 76-2-202(6) and-302(4).
Mr. V. Joe Leckie
January 25, 1996
Page 13
I regret that we are unable to provide the City of Laurel an
opinion on the question presented but hope that the foregoing
discussion and analysis will assist you in advising the City.
Sincerely,
GEORGE SCHUNK
Assistant Attorney General
cc: Mr. Steve Barlow
Mr. Cal Cumin
Mr. Stuart Doggett
Mr. Kent Douglass
Mrs. Ruby R. Hanson
Mr. Richard Weddle
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 3280 and 3282
(Docket No. FR-4223-N-01)
Manufactured Housing: Statement of Policy 1997-1, State of Local Zoning
Determinations Involving HUD -Code
Agency: Office of the Assistant Secretary for Housing -Federal Housing Commissioner,
HUD.
Action: Statement of Policy.
SUMNLARY: This Statement of Policy provides notice to the public concerning HUD's
application of the National Manufactured Housing Construction and Safety Standards Act
of 1974 (Act) to certain zoning decisions being made by State or local government.
These cases typically involve State or local actions to prohibit the siting of HUD -code
manufactured housing while permitting the siting of other types of manufactured housing
built to State or local building codes.
If a locality is attempting to regulate and even exclude certain manufactured homes
through zoning enforcement that is based solely on a construction and safety code
different than that prescribed by the Act, the locality is without authority to do so. This
Statement of Policy is being provided to clarify and distribute HUD's existing policy
determination concerning this matter.
FOR FURTHER INFORMATION CONTACT: David R. Williamson, Director, Office of
Consumer and Regulatory Affairs, Department of Housing and Urban Development, 451
7th St. SW, Room 9152, Washington, D.C. 20410-8000), telephone number (202) 708-
6409 (this is not a toll -free number). For hearing and speech impaired persons, this
number may be accessed via TTY by calling the Federal Information Relay Service at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
Over the last few years, HUD has received a number of questions concerning the
application of the Federal preemption authority in the National Manufactured Housing
Construction and Safety Standards Act of 1974 (42 U.S.C. 5401-5426) (Act) to actions by
State or local government. HUD recently published a nonbinding notice of staff
guidance, which it hoped would assist the public on some of these questions (62 FR 3456,
January 23, 1997).
In certain cases involving questions of preemption and zoning, the State or local
government is imposing more limitations on the placement of manufactured homes that
are built to the Federal manufactured home construction and safety standards (24 CFR
Part 3252) (Federal Standards) than on other types of factory -built single family housing.
In the past, HUD has sent letters to various communities in such cases where local
zoning laws are in direct conflict with the Federal Act and regulations.
II. Increasing Homeownership and the Supply and Availability of Affordable Housing
The elimination of barriers to the expanded use of affordable housing, including
manufactured homes, has been one of the primary objectives of the President's National
Homeownership Strategy. HUD coordinates the National Partners in Homeownership,
which now has over 60 national organizations participating, including State, county and
local governments, and other groups, to identify and promote ways to increase
homeownership and the supply of affordable housing. The Strategy includes the
following goals and objectives in Action Item 27:
The partnership should identify and promote zoning and land development
policies that are more conducive to manufactured housing. As part of this initiative,
partners should develop model legislation for States and localities to adopt that prohibits
exclusion of manufactured housing solely on the basis of HUD certification
(manufacturer certification that the home has been constructed to the Federal standards).
The partners also should produce design and land development criteria and
guidance materials for use by housing developers and local governments, to facilitate
inclusion of manufactured housing in their jurisdictions. To supplement these efforts, the
partnership should offer a cooperative program of education and technical assistance to
encourage nationwide acceptance of the model legislation within 6 years.
HUD strongly endorses this Action Item, particularly making available sites for
manufactured housing outside of parks and largely rural areas. On March 22, 1996, the
Manufactured Housing Institute (MHI) and the American Planning Association (APA)
convened a National Partners in Homeownership Forum to discuss zoning and other
issues. The Forum drew over 100 attendees including planners, housing advocacy
organizations, and representatives from the manufactured housing industry.
The attendees reached an almost unanimous consensus that very real zoning and
other regulatory barriers exist that significantly hinder the full use of manufactured
housing. The Forum produced a series of recommendations to HUD and the National
Partners in Homeownership, including APA and MHI.
This Statement of Policy is being issued as an initial step toward the elimination of
barriers to the use of manufactured housing and in furtherance of the goals and
objectives of the National Homeownership Strategy.
III. Requirements of Act and Regulations
Section 604(d) of the Act, 42 U.S.C. 5403.(d), states:
Whenever a Federal manufactured home construction and safety standard
established under (the Act) is in effect, no State or political subdivision of a State shall
have any authority *** to establish, *** 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.
The term "manufactured home" is defined in section 603(6) of the Act, 42 U.S.C.
5402(6). In addition, $3282.11(d) of the Manufactured Home Procedural and
Enforcement Regulations (24 CFR part 3282) prohibits any State or locality from
establishing and enforcing rules or taking any action that impairs the Federal
superintendence of the manufactured home industry.
Conversely, section 623(a) of the Act (42 U.S.C. 5422(a)) provides:
Nothing in this (Act) shall prevent any State agency or court from asserting
jurisdiction under State law over any manufactured home construction or safety issue with
respect to which no Federal manufactured home construction and safety standard has
been established***
IV. Statement of Policy 1997-1
Generally, the adoption and enforcement of a local zoning ordinance regulating the
location of manufactured homes has not been subjected to the regulatory authority of the
Act because such actions are exercises of the locality's authority to determine proper land
use. Under section 604(d) of the Act (42 U.S.C. 5403(d)), however, the locality is
without authority to regulate or exclude certain manufactured homes through zoning
ordinances or enforcement decisions that are based solely on a construction and safety
code that is different from the Federal standards prescribed under the Act.
For example, assume two structures are brought into a locality and both structures
are: 320 or more square feet when erected on site; built on a permanent chassis; and
transported in one or more sections. If the locality only allows the structure that is built
to the State or local building code to be sited outside an approved mobile home park, the
locality would be acting without authority. If under the local zoning laws the locality
accords the same treatment to all structures that meet the Act's definition of a
"Manufactured home" (42 U.S.C. 5402(6)), the locality is not in conflict with the
preemptive provisions of the Act.
Therefore, a locality cannot exclude or restrict manufactured homes that meet the
Federal standards if the locality accepts manufactured homes meeting other standards.
By excluding or restricting only manufactured homes built to the Federal standards and
accepting manufactured homes built to State or local codes, the locality is establishing
standards for manufactured homes that are different from the Federal standards. To the
extent that the provisions or enforcement of local zoning regulations require that
manufactured homes meet standards other than the Federal standards for manufactured
homes, those local actions are preempted by section 6004(d) of the Act (42 U.S.C.
5403(d)). Furthermore, such a system of local regulations and enforcement would
interfere with Federal superintendence of the manufactured home industry, in
contravention of 24 CFR 3282.11(d).
Dated: April 24, 1997.
Nicholas P. Retsinas,
Assistant Secretary for Housing - Federal Housing Commissioner.
(FR Doc. 97-11535 Filed 5-2-97; 8:45 AIM)
Billing Code 4210-27-)
VIE. Regulation of Manufactured Housing (Mobile Homes)
If a zoning ordinance authorizes the continuation of nonconforming uses which were in
existence prior to its adoption and does not provide for their eventual attrition, the owner of a
parcel on which is located a prior nonconforming mobile home is entitled to replace it with a
new model. Under these circumstances the owner has a vested right to continue to use the
parcel as a site for maintaining one single-family mobile home including replacement units. If
the governing body wishes to provide for the eventual attrition of nonconforming structures or
land use for residential trailer houses, its zoning ordinance must be amended to so provide.
Kensmoe v. City of Missoula, 156 Mont. 401, 480 P.2d 835 (1971).
A zoning ordinance under which only 6.7 percent of the zoned land area and 5.1 percent of
the vacant land within the zoned area is available for the location of mobile homes raises the
question of an unconstitutional exclusion of mobile homes. Martz v. Butte -Silver Bow Gov't,
196 Mont. 348, 641 P.2d 426 (1982).
A municipality must ensure that a fair share of housing is within reach of persons of low and
moderate incomes. An ordinance which is shown to unduly exclude manufactured housing is
unconstitutional. Mack T. Anderson Ins. Agency, Inc. v. City of Belgrade, 246 Mont. 112, 803
P.2d 648 (1990).
In making zoning decisions regarding the location of manufactured housing within its
jurisdictional area a local government not only may, but must, consider long-term planning, the
unique qualities of manufactured housing, and the property values of surrounding residents in
addition to public safety. Mack T. Anderson Ins. Agency, Inc. v. City of Belgrade, 246 Mont.
1121 803 P.2d 648 (1990).
Just like any other use, manufactured housing must be provided for. However, any
provision must be made by zoning regulations designed to benefit the community generally.
Mack T. Anderson Ins. Agency, Inc. v. City of Belgrade, 246 Mont. 112, 803 P.2d 648 (1990).
Most municipal efforts to totally exclude manufactured housing from a community have been
found unconstitutional as an unreasonable exercise of police power. However, it has been
generally held, in recognition of the differing needs of the community, that manufactured or
mobile homes are residential uses possessing special characteristics which warrant their separate
regulation. Thus, they may be confined to mobile home parks, or may be excluded from
residential districts. Absent exceptional circumstances, the exclusion of this use from a
residential district is not regarded as unreasonable. Mack T. Anderson Ins. Agency, Inc. v. City
of Belgrade, 246 Mont. 112, 803 P.2d 648 (1990).
If a governing body provides an adequate area for manufactured home development,
manufactured homes may be excluded from conventional residential districts. Mack T. Anderson
Ins. Agency, Inc. v. City of Belgrade, 246 Mont. 112, 803 P.2d 648 (1990).
21
[Note: For an excellent overview of the law regarding the use of zoning to regulate the
location of manufactured housing/mobile homes and the exclusion of these dwellings from
certain residentially zoned districts based solely on their failure to comply with Uniform Building
Code standards, see letter from Assistant Attorney General George Schunk to V. Joe Leckie,
Laurel City Attorney, dated January 25, 1996.]
IX. What Constitutes Residential Use of Property
A. Group Home
For purposes of zoning, a community residential facility group home for eight or fewer
developmentally disabled persons must be regarded as a residence and may be located in any
area zoned for residential use (sections 76-2-411 and 76-2-412, MCA). Thelen v. City of
Missoula, 168 Mont. 375, 543 P.2d 173 (1975); Mahrt v. City of Kalispell, 213 Mont. 96, 690
P.2d 418 (1984).
An unlicensed 24-hour-care home for elderly persons who happen to have certain disabilities
is not a community group home for developmentally, mentally, or physically disabled persons
and, thus, is not a "community residential facility" as that term is defined by section 76-2-411,
MCA. Consequently, section 76-2-412, MCA, which provides that community residential
facilities serving eight or fewer persons on a 24-hour basis are considered residential uses for
purposes of zoning, does not apply to the facility. Carey v. Wallner, 223 Mont. 260, 725 P.2d
557 (1986).
Sections 76-2-411 and 76-2-412, MCA, were enacted to facilitate the location of group
homes in residential neighborhoods. Their purpose was not to negate either the state licensing
requirements for such homes or the relevant local zoning ordinances. Carey v. Wallner, 223
Mont. 260, 725 P.2d 557 (1986).
B. Manufactured Housing (Mobile Home
It has been generally held, in recognition of the differing needs of the community, that
manufactured or mobile homes are residential uses possessing special characteristics which
warrant their separate regulation. Thus, they may be confined to mobile home parks, or may
be excluded from residential districts. Absent exceptional circumstances, the exclusion of this
use from a residential district is not regarded as unreasonable. Mack T. Anderson Ins. Agency,
Inc. v. City of Belgrade, 246 Mont. 112, 803 P.2d 648 (1990).
C. Multiple Family Dwellings
In an annexation agreement which authorized the continuation of certain nonconforming uses
in an area to be annexed and zoned, the term "residential purposes" was not so clear on its face
22
i to court of record. (1) Any
aggrieved by any decision of the
ny officer, department, board, or
court of record a petition, duly
s is illegal, in whole or in part,
iuch petition shall be presented
ig of the decision in the office of
tion, the court may allow a writ
istment to review such decision
,scribe therein the time within
and served upon the relator's
days and may be extended by
not stay proceedings upon the
(upon application, on notice to
a restraining order. The board
turn the original papers acted
turn certified or sworn copies
)e called for by such writ. The
facts as may be pertinent and
)n appealed from and shall be
ar to the court that testimony
e matter, the court may take
,vidence as it may direct and
igs of fact and conclusions of
proceedings upon which the
n, wholly or partly, or may
.M. 1947, 16-4706(8) thru (11).
?on appeal from board
st the board unless it shall
negligence, in bad faith, or
from.
W. 1947, 16-4706(12).
Part 3
Municipal Zoning
76-2-301. Municipal zoning authorized. For the purpose of
promoting health, safety, morals, or the general welfare of the
community, the city or town council or other legislative body of cities and
incorporated towns is hereby empowered to regulate and restrict the
height, number of stories, and size of buildings and other structures; the
percentage of lot that may be occupied; the size of yards, courts, and other
open spaces; the density of population; and the location and use of
buildings, structures, and land for trade, industry, residence, or other
purposes.
History: En. Sec. 1, Ch. 136, L. 1929; re -en. Sec. 5305.1, R.C.M. 1935;
R.C.M. 1947, 11-2701.
Cross -References
Incorporation of technical codes by reference, 7-5-4202.
76-2-302. Zoning districts. (1) For the purposes of 76-2-301, the
local city or town council or other legislative body may divide the
municipality into districts of the number, shape, and area as are
considered best suited to carry out the purposes of this part. Within the
districts, it may regulate and restrict the erection, construction,
reconstruction, alteration, repair, or use of buildings, structures, or land.
(2) All regulations must be uniform for each class or kind of
buildings throughout each district, but the regulations in one district may
differ from those in other districts.
(3) In a proceeding for a permit or variance to place manufactured
housing within a residential zoning district, there is a rebuttable
-presumption that placement of a manufactured home will not adversely
affect property values of conventional housing.
(4) As used in this section, "manufactured housing" means ,a
single-family dwelling, built offsite in a factory on or after January 1,
1990, that is placed on a permanent foundation, is at least 1,000 square
feet in size, has a pitched roof and siding and roofing materials that are
customarily, as defined by local regulations, used on site -built homes, and
is in compliance with the applicable prevailing standards of the United
States department of housing and urban development at the time of its
production. A manufactured home does not include a mobile home or
housetrailer, as defined in 61-1-501.
(5) This section may not be construed to limit conditions imposed
in historic districts, local design review standards, existing covenants, or
the ability to enter into covenants pursuant to Title 70, chapter 17, part
2.
sl
.' �T. V•T x��__y gyp? tl �j{,•.t 1 _
History: En. Sec. 2, Ch. 136, L. 1929; re -en. Sec. 5305.2, R.C.M. 1935; amd.
requirements.
Sec. 1, Ch. 273, L. 1971; amd. Sec. 1, Ch. 354, L. 1973; R.C.M. 1947, 11-2702(1);
(2) Such regulations shall b
amd. Sec. 2, Ch. 505, L. 1993; amd. Sec. 276, Ch. 42, L. 1997.
among other things, to the char
Compiler's Comments
suitability for particular uses and
1997 Amendment: Chapter 42 in (4), near end, substituted "mobile home
begs and encouraging the me
or housetrailer,as defined in 61-1-501"for "mobile home, as defined in 61-4-309,
such municipality.
or a housetrailer, as defined in 61-1-501"; and made minor changes in style.
History: En. Sec. 3, Ch. 136,
Amendment effective March 12, 1997.
R.C.M. 1947, 11-2703.
76-2-303. Procedure to administer certain annexations and
76-2-305. Alteration of zo
zoning laws — hearing and notice. (1) The city or town council or other
regulations, restrictions, and bo
legislative body of a municipality shall provide for the manner in which
amended, supplemented, changed,
regulations and restrictions and the boundaries of districts are
of 76-2-303 relative to public he
determined, established, and enforced and from time to time amended,
equally to all changes or amendm
supplemented, or changed.
(2) In case, however, of a 1
(2) However, a regulation, restriction, or boundary may not
the owners of 20% or more either i
become effective until after a public hearing in relation to the regulation,
proposed change or of those imir
restriction, or boundary at which parties in interest and citizens have an
extending 150 feet therefrom or o
opportunityto be heard has been held. At least 15 days' notice of the time
within the same block or of those c
and place of the hearing must be published in an official paper or a paper
feet from the street frontage of suc
of general circulation in the municipality.
not become effective except by th
(3) For municipal annexations, a municipality may conduct a
the members of the city or tow:
hearing on the annexation in conjunction with a hearing on the zoning of
municipality.
the proposed annexation, provided that the municipality continues on the
History: En. Sec. 5, Ch. 136, L.
annexed property a land use comparable to the land use authorized by
Sec. 1, Ch. 161, L. 1969; R.C.M. 1947,
county zoning. A joint hearing authorized under this subsection fulfills a
municipality's obligation regarding zoning notice and public hearing for
76-2-306. Interim zonir
a proposed annexation.
councilor other legislative body of
History: En. Sec. 4, Ch. 136, L. 1929; re -en. Sec. 5305.4, R.C.M. 1935;
safety, health, and welfare an
R.C.M. 1947, 11-2704; amd. Sec. 1, Ch. 217, L. 1997.
otherwise required preliminary t
may adopt as an urgency measure
Compiler's Comments
uses which may be in conflict with
1997 Amendment: Chapter 217 inserted (3) regarding a municipal
the legislative body is considering
annexation hearing or joint annexation and zoning hearing, and made minor
changes in style.
a reasonable time.
Cross -References
(2) Such interim ordinance
Publication of legal notices, 7-5-2411; Title 18, ch. 7, part 2.
limits and up to 1 mile beyond t]
town and shall take effect upon pa
76-2-304. Purposes of zoning. (1) Such regulations shall be
first held upon notice reasonably
made in accordance with a comprehensive plan and designed to lessen
and in no event shall notice be le
congestion in the streets; to secure safety from fire, panic, and other
general circulation at least 7 day:
dangers; to promote health and the general welfare; to provide adequate
(3) Such interim ordinanc(
light and air; to prevent the overcrowding of land; to avoid undue
6 months from the date of ado
concentration of population; to facilitate the adequate provision of
pursuant to 76-2-303 and pursuan
transportation, water, sewerage, schools, parks, and other public
Christine and Michael Geary thought they'd found ideal
housing they could afford when they moved themselves and Christine's
children from New Jersey to sun -drenched Polk County, Fla., five years
ago. The double -section, 28x68-foot manufactured home they decided
to buy sits on a grassy one -acre plot, giving them more privacy
than is common in a mobile -home
park Best of all, priced at just $55,000
for both the structure and land, the
then six -year -old house fit their budget.
But then the rains washed away the
Gearys' illusions of easy -maintenance
life in a manufactured home. The
siding and windows leak, and the air-
conditioning ducts are perpetually
clogged from water damage. As he
runs his hand over the flaking wood
near the base of a wall, Michael tells
a visitor that he still has 17 years re-
maining on the loan he took out to
buy his home, he wonders whether
the house will last as long.
Five miles away from the Gearys,
you follow a tree -lined main road
to reach the lakeside home —make
that manufactured home —of retirees
Margaret and Freeman Smith. Perched
on a manicured 85x95-foot lot over-
looking one of the two golf courses
that wind through the 800 acres of
Cypress Lakes, a retirement commu-
nity in Lakeland, Fla., the Smith's
airy three -bedroom house has a
cathedral-ceilinged living room, a sun
room, and a kitchen with bleached -
wood cabinets.
The Smiths purchased their new
triple -section, 2000-square-foot man-
ufactured home and the lot it sits on,
and added a porch and a garage, for
just over $100,000. They haven't had
cause to regret their choice since they
moved in almost four years ago.
Manufactured housing —still com-
monly referred to as "mobile homes"
—is emerging as a mainstream resi-
dential choice for millions of Ameri-
cans across a wide spectrum of in-
comes. Today, 18 million Americans
live in manufactured housing, and
new construction was up 7 percent in
1996. Manufactured houses now ac-
Like new Solid construction and timely
maintenance help preserve the look of
the Smiths'manufactured home.
..........................................................
count for nearly one-fourth of all new
single-family homes built.
Yet for all of the evidence of broader
consumer acceptance, a two-year ex-
amination of the industry by CON-
suAmR REPORTs found that manufac-
tured -home ownership can be beset
with problems. Our investigation in-
cluded tours of a half -dozen factories
where the structures are built, visits to
dealer lots and mobile -home commu-
nities in four states, and a national
survey of the ownership experiences
of 1029 consumers who had purchased
manufactured homes built since 1977.
Our main findings:
• Manufactured housing can last
as long as site -built housing. More -
expensive mobile homes, though, have
fewer problems than lower -cost ones.
The latter typically have lower -quality
materials, like plastic plumbing fix-
�d
30 CONSUMER REPORTS FEBRUARY 1998
tures, metal roofs, and cheaper car-
peting that wear out quickly or are
easily damaged.
• Eighty-two percent of our survey
respondents reported that they were
largely satisfied with their manufac-
tured home, but a majority —even
those whose home was less than five
years old —also told us that they had
had at least one major problem. (See
"House Wears" on page 32 for the
most common trouble spots and
advice on how they can be avoided.)
• Consumers who lease the land on
which their manufactured house sits
—including just under half of our sur-
vey respondents —are vulnerable to
sudden, and sometimes dramatic,
jumps in the rent on their lots. Those
who cannot afford the increases or
who lose their lease have few options
other than to bear the expense of hav-
ing their home moved. Or they can
sell the home —often to the landlord
at a distress price.
• A major factor in raising manu-
factured housing's quality and relia-
bility has been a code of construc-
tion standards imposed by the U.S.
Department of Housing and Urban
Development (HUD) to ensure that
only 11 years old On the Cearys'
mobile home, the wood trim and metal
drip edge near the roof are falling apart.
manufacturer -built homes meet min-
imum performance criteria. But more
than 20 years after the HUD code
was adopted, large gaps in the regula-
tion of the fast-growing industry re-
main to be filled, particularly in the
area of installation. (See "Regulations
Need Refurbishing," on page 34.)
How Safe?
Installation can be a serious safety
issue for manufactured housing.
Images of uprooted mobile homes
flipped on their sides in the aftermath
of a severe storm ar, 1'requent news
events. That's due, in part, to the
fact that unlike homes built on a per-
manent foundation, manufactured
houses are commonly propped on
piers and tied to the ground with steel
straps. State and federal regulators
say manufactured homes are often
Home styles
Manufactured home. Still popularly
known as mobile homes, most never
move aftertheirtrip from the dealer or
manufacturerto the consumer's land.
These homes are built on a chassis
(a metal frame) to conform to a
regulatory code established by HUD.
Most rest on piers and are anchored
to the ground by steel straps. Median
price: $35,700 without land.
Modular home. The entire
house is built in a factory, shipped
to a consumer's land in sections, and
assembled on the site in accordance
with local building codes. It is
installed on a permanent foundation.
Prices can be similar to those of site -
built homes.
Recreational vehicle. Often
confused with mobile homes, these
traveling home -like vehicles are
popular with vacationers and retirees.
Versions include motor homes,
travel trailers, and pop-up campers.
The average price: $47,000 for a
compact motor home.
Site -built home. Also known as a
stick -built house, this is constructed
piece by piece on land you own to
conform with local building codes.
Median price: $140,000 with land.
z
CONSUMER REPORTS FERRUARY 1998 31
installed incorrectly, accounting for
more than half the problems con-
sumers report
When Hurricane Andrew hit Flor-
ida in 1992, for example, almost all
of the mobile homes in the southern
part of Dade County were destroyed.
By comparison, just 28 percent of
contractor -built homes in the area
suffered irreparable damage. And when
the Northridge earthquake rocked
Southern California in 1994, almost
half the manufactured homes in the
area slid off the support systems
intended to secure them to the ground,
a survey by the California Depart-
ment of Housing and Community
pliance in their jurisdictions with
the federal manufactured -housing
standards; HUD takes responsibility
elsewhere.)
Manufacturers are required to
include an installation manual with
each home they sell, but state regula-
tors we interviewed say that installers
often ignore or are unable to follow
the directions. There are no federal
guidelines for installation, and only
23 states license or certify installers.
Consumers Union supports efforts
HUD is making to improve the in-
stallation process.
An affordable choice
Development found. (Thirty-six states For many aspiring homeowners —
have agencies that monitor com- especially low-income families and
first-time buyers —there are few af-
fordable alternatives to manufactured
housing. The median household in-
come of manufactured -home dwellers
was $22,578 in 1995, the latestyear for
which government statistics are avail-
able, compared with $31,416 for all
households. Under a recent program,
manufactured homes are being in-
stalled to see if they can help stabilize
run-down neighborhoods in such
cities as Birmingham, Ala.; Louisville,
Ky.; Milwaukee; Nashville, Tenn.;
and Washington, D.C.
The Manufactured Housing In-
stitute, a trade association based in
Arlington, Va., calculates that ex-
cluding land, a contractor -built home
costs $59 per square foot to build,
House wears'How to avoid weak spots in manufactured homes
- _
Floor
Problem: The particleboard subfloors
found in many mobile homes can swell
when wet and break down overtime.
One-fourth of our survey respondents
experienced some of these problems.
Solution: Choose a home built with
plywood subfloors, or pay a few
hundred dollars more to upgrade
to plywood where possible. Because
you will be less likely to encounter
potentially large repair bills, plywood
can be the more economical choice in
the long term. Keep an eye especially
on the flooring beneath windows and
around doors for damp carpeting or
uneven linoleum --evidence of water.
..................................................
Central heating and cooling
Problem: Improper placement of registers
can result in uneven heating and cooling
of the home. More than one -fifth of our
survey respondents reported having had
problems with these systems.
Solution: Choose a system appropriate
for the climate where you live, paying
attention to the kind of fuel —oil, gas, or
electricity —you'll be likely to use, and its
cost. If you live in a temperate or warm
part of the country and will be heating with
electricity, a heat pump will help lower your
electric bills. Cooling outlets should be
located in the ceiling. If you reside in a colder
region, a gas or oil furnace may provide
more economical heating. Look, too, for a
f 1%�n
r
r € i
neaung auc[
insulation
belly wrap
• steel chassis
Durable Plywood subfloors are more water-
resistant than those made of particleboard.
�_
Warmer Heat
registers placed
against outer
walls promote
even heating
throughout the
i=
home. Vents in
the middle of
rooms are easily
obstructed, block-
ing hot-air Row.
home with heat outlets located along the
exterior walls. That placement will be less
likely to result in obstructed heat flow —
and more likely to provide even heating.
Plumbing
Problem: Polybutylene piping
with mechanical fittings may leak.
In the kitchens and bathrooms of
lower -cost models, cheap plastic
sinks, tubs, and shower enclosures
aren't as durable as porcelain fixtures
used in many site -built homes. Many
manufactured homes lack shutoff
`valves at every plumbing fixture,
rmaking service less convenient.
Thirty-six percent of our survey
4--respondents reported having had
problems with plumbing during
the time they owned their home.
Solution: If your budget permits, find
a model that comes
equipped with
higher -grade
acrylic or porcelain
fixtures, especially
for high -use
plumbing such as
in the kitchen or
master bathroom.
Conduct periodic
inspections of,
around, and under
all plumbing
fixtures for early
signs of leaks. And
don't forget to look
for evidence of
water leaking
beneath the home,
as well. Have any leaks repaired
quickly, because the subfloors can be
easily destroyed by exposure to water.
Choose a home equipped with
shutoff valves at each fixture for a
quick, convenient way to stop water
flow, particularly in an emergency.
Convenient Ideally,
each majorplumbing
fixture should have
shutoff valves.
32 CONSUMER REPORTS FEBRUARY 1998
compared with just $28 per square
foot for a manufactured home. In
1996, the average manufactured
home sold for $38,400 and had more
than 1300 square feet of living space,
typically consisting of a living room,
kitchen, two or three bedrooms, and
two baths. That's nearly one-third
larger than mobile homes built in
1981 and some 500 square feet big-
ger than the first Levittown tract
houses of the early 1950s. The basic
price, moreover, typically includes
appliances and other interior fur-
nishings, transportation from the
factory, and installation on the site.
Multisection homes costing upward
of $50,000 can provide living space
equivalent to a site -built home and
Roof
permit buyers to add options like
fireplaces or whirlpool baths.
The buyer's maze
Shopping for a manufactured home
can combine all of the headaches of
buying an automobile with the com-
plexities of any housing purchase.
Ten manufacturers, each building
homes configured in a range of floor
plans and interior decors, account for
nearly three -fourths of all factory -
built housing units made. But most
dealers who sell manufactured homes
—usually located, like auto dealers,
along busy commercial strips on the
fringes of town —have only a narrow
selection from a few makers on dis-
play, making it difficult to compare
Problem: Seams common in metal roofs,
spots where a roof ends flush with a house's
exterior walls, and points where pipes protrude
through any roof are potential leak spots. P'rofia�iaeEaaesblockrain,sun.
Thirty-one percent of our respondents reported -„_
having had roof problems.
Solution: Homes with shingle -roof construction may be more durable and less
prone to leakage problems. Look, too, for a roof with eaves that overhang the
exterior sidewalls. Not only do overhangs reduce the risk of water seepage, the
larger ones provide greater protection from driving rains and the hot summer sun.
Ylfiallows and doors
Problem: Gaps between windows and
doors and the walls in which they are placed
are filled with caulking material atthe factory,
buttransportation may breakthe seal. Low -
quality windows often have corners joined
with fasteners instead
* of a continuous weld,
creating more gaps
that air and water
can leak through.
Thirty-two percent
of our respondents
Jr-
experienced leaking
windows and doors.
Solution: Look for
a home with welded
vinyl windows and
insulated glass.
Insulated steel or
fiberglass doors
provide cost-effective
weather barriers.
Tight Welded Maintain weather
window corners stripping around
(shown in the windows and doors
lower drawing) and the home's
avoidgaps that let exterior to keep
in wind and rain. out the elements.
Problem: If the home is
supported directly by surface
soil, where normal freezing and
rainfall can cause the structure
to settle, cracks may develop in
walls, and windows and doors
may be difficult to open.
Solution: An enclosed permanent
foundation is the best choice.
Otherwise, have soil analyzed for
load -bearing capacity. Footings
and piers on which the load
of the home sits should be sized
to transmit weightto the soil
without exceeding those limits.
In cold regions, footings should be
below the frost line. The ground
should be graded to direct water
flow away from the home.
M, T__
r
c�
&abk Footings (left) below the
soil surface are superior to jacks.
brands and models side by side.
Would-be buyers must rely on de-
scriptions in manufacturers' catalogs
and small samples to base purchase
decisions that can consume the bulk
of their financial resources.
Further complicating the consumer's
choice is the problem of where to put
the home when it's delivered from the
factory. Many municipalities still dis-
criminate against manufactured hous-
ing through restrictive zoning. Some
owners of mobile -home parks try to
pressure buyers who want to lease a
site in their community into buying
from a retail outlet they own (only
some states prohibit the practice of
tying one transaction to another).
And if the prospective homebuyer
wants to lease land in a park that has
few vacancies, he or she may be
pressed into buying a home that is al-
ready on the site. Of the consumers
we surveyed, 61 percent bought their
home from a dealer, 22 percent
bought from the previous owner, and
7 percent bought from a park.
Costly financing
Loan terms for buyers of manufac-
tured housing are superficially similar
to those of conventional mortgages.
Putting as little as 5 percent down, a
borrower can take out a loan to be re-
paid over a period of between 15 and
30 years. Government -backed FHA
and veterans loans are available to buy-
ers who qualify. And like owners of
site -built homes, consumers who re-
side in their manufactured home are
permitted to deduct interest payments
from their federal income taxes.
But in other major respects, financ-
ing a mobile home is more like Mang
out a car loanwith many of the same
disadvantages. Overall, interest rates on
mobile -home loans typically run some
2 or 3 percentage points higher than
those for a conventional mortgage.
The median rate paid by consumers
who responded to our survey was 11
percent The rate varied based on
where consumers got their loan —bank
loans averaged 10.4 percent, while
dealer loans averaged 12.3 percent
Rates are high in part because many
banks shy away from lending on mobile
homes, especially used ones. Those
that extend credit to buyers who lease
their lots generally offer the borrower
only more -expensive personal loans.
Dealers typically work with a handful
CONSUMER REPORTS FEBRUARY 1998 33
t•IsL+
The current guidelines regulating construction
of manufactured housing haven't had a
wholesale overhaul since they were first
put in place more than 20 years ago. Those
standards are inadequate and badly need to
be upgraded. Manufacturers have balked at
reform efforts, including the tougher wind -
resistance standards that HUD imposed in
1994 in coastal areas to stave off problems
like those caused by Hurricane Andrew.
But the old standards remain essentially
unchanged in much of the U.S., even
though a HUD study found that over a
period of 10 years, a manufactured home
exposed to normal wind conditions was
five times more likely to suffer a structural
failure than a conventionally built home.
That is mainly because the manufactured
homes are not adequately anchored to the
ground. The industry has also stalled on
improving warranties that would make it
easier for consumers to have defects
corrected, whether they occurred in the
factory, in transit, or during installation.
HUD is expected to begin a much -needed
review of the construction code this year,
an initiative Consumers Union supports.
Still, the federal effort is not expected to
include a national installation standard.
That's a big omission. Installation is a major
cause of structural defects experienced by
owners of factory -built homes, accounting,
regulators say, for more than half of all
complaints reported.
of lenders, and they try to steer the
prospective buyer to one of them
so they can close the deal before
the customer leaves the lot, effectively
eliminating the opportunity to shop
for better terms. The nation's big-
gest mobile -home lender, Minnesota -
based Green Tree Financial Corp.,
for example, says it can extend con-
ditional loan approval to would-
be buyers within an hour of receiving
an application through a dealer. Some
manufacturers, such as
Clayton Homes and WS nd easy for t8l1anft
Oakwood Homes, op- fo eXfriCae #1eMSeh=
erate their own retail ffOtll rental
outlets and proprietary
finance companies. that taffn sour.
Lenders justify the
higher rates by pointing out that bor-
rowers who buy manufactured homes
are more likely to default than are tra-
ditional mortgage borrowers. Some 12
percent of all manufactured -home
loans end up in default over the life of
the loan, a rate that's some four times
higher than that for conventional home
mortgages. But default rates may also
be high because many mobile homes,
especially those installed on a leased lot,
lose value over time. In fact, two-thirds
of our survey respondents estimated
that their manufactured homes would
sell for less than they had paid for them
Homeowners insurance on manu-
factured housing is also costlier than for
a traditional home because mobile
homes are more vulnerable to storm
damage. For an equivalent level of cov-
erage, annual premiums on a manufac-
tured home may be 20 percent higher.
Insecure leases
There are about 50,000 mobile -
home parks throughout the U.S.
Most are independent operations,
ranging in ambience from little more
than dirt yards with no amenities to
country club -like set-
tings with a pool, golf
course, and recreation
center. Four publicly
traded companies —
Chateau Communi-
ties, Manufactured
Home Communities, Sun Communi-
ties, and United Mobile Homes —oper-
ate some 300 parks. One of the
biggest makers of factory -built hous-
ing, Clayton Homes, owns 67 parks.
Others are managed by dealers.
Tenants are vulnerable to the va-
garies of landlords who raise the rent
on their lots at will, or who add extra
charges for water or for garbage re-
moval that was once included in the
base rent Even in the 34 states that
provide tenants with some legal protec-
tion, regulations lack much enforce-
ment bite. For example, when they
moved into Lakeview Court in upstate
NewYork just over a year ago, Anthony
and Veronica Bertonica were told they
could expect the monthly $170 rent for
the site on which their home is an-
chored to increase by no more than $5
or so a month after the first year. Then,
last fall, their landlord told them their
rent would jump to $275 a month. The
couple never signed a lease, and now
they're not sure what their next move
will be. A real-estate agent told them it
would be hard to sell their home. Says
Anthony Bertonica, "We're in a no -
win situation."
It's not easy for tenants to extricate
themselves from rental situations that
turn sour. Ten years ago, Deborah
Chapman bought a manufactured
house in Strasburg, Pa. Like many
young people, she had opted for man-
ufactured housing because she could-
n't afford the down payment for a
site -built home. When she was ready
to trade up, however, her landlord,
who had written into the lease the
right to approve any subsequent
buyer, rejected each of the six people
who made an offer on the $9500
home. He then made a lowball bid of
his own for $2000.
Rather than abandon her home,
Chapman paid some $1500 to have it
moved to a new location, where it sat
empty until she sold it a year later for
$7000. She used the proceeds to pay
legal costs she'd racked up fighting her
landlord, in the end netting nothing
for all the trouble she went through.
Says Chapman, who is now the chair-
woman of the National Foundation of
Manufactured Home Owners, "Had I
been forced to sell, the landowner
would have sold my home for much
more than he paid for it."
Recommendations
Consumers who would consider the
manufactured -housing option should
take the following precautions:
• Put together the whole package.
There's a good chance that the dealer
who sells you your manufactured home
will also want to arrange your financing
and rent you a site at the same time.
But you won't know if the terms are
right unless you shop around for land
A
and a lender independently. And be-
cause most dealers' product selections
are limited, you should also be pre-
pared to visit several to be able to com-
pare brands and models.
Before you settle on a community,
talk to residents who live there, and
ask about their experiences with the
landlord. Read the park's rules care-
fully, make sure the site you're shown
is the one you would actually rent,
and insist on having a lease. Have
an attorney look over
the rental terms, being
careful to pay close
attention to any condi-
tions that may limit
your freedom to sell
your home to whom-
ever you choose. For
referrals to an associa-
tion of owners of man-
ufactured homes in your
area who can help you
with your decision, call
the National Foun-
dation of Manufactured
Home Owners (717
284-4520).
• Buy extra sa engdL
Manufactured homes
are required by HUD
standards to be able to endure various
weather conditions, depending on
where they'll be sited. Those slated to
go along the Gulf of Mexico and the
Southeast coast must be sturdy
enough to withstand hurricane winds.
Mobile homes destined for the colder
North must be packed with extra in-
sulation to hold in heat against sub-
zero winter temperatures. But even
mobile -home owners who live in the
South should consider upgrading to
heavier insulation as a way of cutting
their cooling expenses.
• Hire a home inspector. Spend-
ing a few hundred dollars for a licensed
engineer to supervise the placement
of your home on its site or to inspect
a used home you buy could save thou-
sands in repairs down the road.
Mobile homes are typically inspected
only once, before they leave the fac-
tory, to see that they conform to
Make that -Money Tree"
Lawrence Coss, chief
executive officer of Green
Tree Financial, the biggest
lender to manufactured -
home buyers, made $102
million in 1996. That made
him the
rate exeafiue that ydear. ar,
HUD construction standards. But
then they're towed, sometimes for
hundreds of seam -loosening miles
before they reach the site where
they'll be installed. Some local
building departments have a permit-
ting process to ensure that installa-
tion on the site meets the manufac-
turer's requirements.
• Plant a solid foundation. Most
retailers include the cost of instal-
lation in a home's price. This is an
area where consumers
should consider spend-
ing extra money. If you
own the land beneath
your home, you can in-
crease the home's sta-
bility and value by put-
ting in a permanent
foundation with a poured
concrete slab and a crawl
space. Whether you or
the dealer arrange the
installation, check the
installer's references,
and call the Better Busi-
ness Bureau and the
agency that regulates
manufactured housing
in your state.
• Spell out who's
responsible for correcting defects.
Manufacturers offer warranties, but
they often exclude damage caused
in transit or by faulty installation.
Transporters and installers are in-
clined to blame problems on each
other —or on the manufacturer. To
minimize the runaround, look for
a mover and an installer who are
insured, and consider buying supple-
mental insurance to cover you until
the home is permanently anchored
to its site. m
For fltOf r hIfofti mUm
Consumers Union's Tips on Mobile Homes con-
tains information on how you can minimize
problems that can compromise safety or add to
maintenance costs. To receive a copy, send
$2 to cover shipping and handling to Consumer
Reports Mobile Homes Pamphlet, P.O. Box
11018, Des Moines, Iowa 50336. You can
also find the information on our Web site,
www. ConsumerReports. org.
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