“Getting Zoning for Manufactured Housing Right” is a working paper published by the Lincoln Institute for Land Policy authored by Daniel R. Mandelker. The Lincoln Institute says the following about Mandelker. “Daniel R. Mandelker is the Howard A. Stamper Professor of Law Emeritus at Wash U Law and is one of the nation’s leading scholars and teachers on land use law. He is the co-author of a widely used casebook on land use law, now in its ninth edition, and co-author of a comprehensive treatise on land use law, now in its sixth edition. …” Put simply, Mandelker is a well known and widely respected legal expert on zoning issues. Published in February 2023, his working paper carries a disclaimer that says: “The findings and conclusions of this Working Paper reflect the views of the author(s) and have not been subject to a detailed review by the staff of the Lincoln Institute of Land Policy.” In communications with Manufactured Home Living News (MHLivingNews), Mandelker stated the following as a preface for publication on the report that follows.
“Unequal treatment in zoning ordinances is a major barrier to manufactured housing. Unequal zoning treatment can take many forms. Zoning ordinances can exclude manufactured housing from residential zoning districts, even though manufactured housing is indistinguishable from housing built on the site. A zoning ordinance may require a special exception for manufactured housing in residential zoning districts even if it is not excluded. This requirement means that manufactured housing must be approved by a zoning board before it is allows in a residential zoning district. Vague approval standards give zoning boards an opportunity to block manufactured housing by denying special exceptions arbitrarily. Zoning ordinances also contain arbitrary design standards that apply to manufactured housing and that can make it impracticable and increase cost. My working paper discusses these zoning barriers and suggests model legislation that can change them through statutory change and changes in local zoning ordinances and points the way to zoning reform.” – Law professor Daniel R. Mandelker.
MHLivingNews notes for new and returning readers alike that the following report by Prof. Mandelker does not consider the question of federal preemption for manufactured homes under the Manufactured Housing Improvement Act (MHIA) of 2000.
By agreement, Prof. Mandelker and this publication note that he and our platform do not yet agree on the notion of “enhanced preemption” claimed by others involved in manufactured housing. It ought to be apparent that claimed or asserted federal preemption is a debatable, important ‘hot button’ issue for the manufactured home industry. People of good will, including those who like Prof. Mandelker appear supportive of a more widespread access to inherently affordable manufactured homes, can nevertheless see the federal preemption issue differently.
That disclosure noted, Part I of this article is the bulk of Mandelker’s research as published by the Lincoln Institute for Land Policy and is provided below with his written consent. Part II will follow his research with additional information with more MHLivingNews analysis and commentary that includes observations on federal preemption and other aspects of internal and external manufactured home industry challenges.
Numbers of experts and professionals, including Mandelker, believe that manufactured housing is widely misunderstood. They often assert that manufactured homes are the most proven solution to the U.S. affordable housing crisis. As MHLivingNews has documented via collecting and exploring the largest known collection of manufactured housing focused third-party research documents anywhere in the U.S. that manufactured homes cost much less but offer similar quality, safety, durability and features as conventional ‘site built’ housing. When we update that “ultimate” manufactured home research collection, we plan to add Mandelker’s working paper provided below to it.
Freddie Mac research asserted in 2022 that an estimated 25 to 26 million Americans who currently rent are ‘mortgage ready’ and live in what they called ‘manufactured home friendly zones.’ But tens of millions of Americans today can not easily access manufactured home ownership because of zoning issues that Mandelker provides keen insights into.
Are You or Someone You Know Among the 25 Million Renters Who Could Buy a Manufactured Home Today? Freddie Mac Study ‘Identifying the Opportunities to Expand Manufactured Housing’ by Aw, Brown, Yea Examined
With that focused preface, Mandelker’s findings are provided in Part I below.
Note that a word in brackets has been added by MHLivingNews [housing] below following the word “manufactured,” which was apparently intended by the author. That noted, the definitive version of his work is the PDF of his research.
Getting Zoning for Manufactured Housing Right
Working Paper WP23DM1
Daniel R. Mandelker
Stamper Professor of Law Emeritus
Washington University of Saint Louis
The findings and conclusions of this Working Paper reflect the views of the author(s) and have not been subject to a detailed review by the staff of the Lincoln Institute of Land Policy. Contact the Lincoln Institute with questions or requests for permission to reprint this paper. firstname.lastname@example.org
© 2023 Lincoln Institute of Land Policy
This working paper discusses zoning barriers to manufactured housing. Zoning is a poorly constructed system that allows local governments to restrict manufactured housing.
Zoning restrictions create unequal treatment, such as the exclusion of manufactured housing from single-family zoning districts. Judicial review is weak, but legislation can prohibit unequal treatment.
Courts usually uphold denials of manufactured housing and restrictive conditions for its approval.
Clear and objective defined standards should be required that should not discourage manufactured housing.
Statutes and zoning ordinances should prohibit restrictive design standards for manufactured housing, such as roof pitch and exterior treatment standards, and standards that require customized design treatment that may be difficult for manufactured housing to meet.
A support organization is needed that can provide litigation and legislative support to help manufactured housing advocates with zoning reform. Statutory reform proposals for legislative change should be included in local zoning ordinances.
About the Author
Daniel R. Mandelker is the Howard A. Stamper Professor of Law Emeritus at WashULaw and is one of the nation’s leading scholars and teachers on land use law. He is the co-author of a widely used casebook on land use law, now in its ninth edition, and co-author of a comprehensive treatise on land use law, now in its sixth edition. He has also co-authored a casebook on state and local government law and a popular treatise on the National Environmental Protection Act. He is an emeritus member of the College of Fellows of the American Institute of Certified Planners and received the ABA Section on State and Local Government’s Daniel J. Curtin Distinguished Lifetime Achievement Award. Professor Mandelker was the principal consultant and contributor to the American Planning Association’s model zoning and planning legislation and the principal author of comprehensive planning amendments to the New Orleans city charter. He has served on task forces and as a consultant on land use and environmental issues for national, state and local governments as well as national associations. Professor Mandelker can be contacted at email@example.com.
The author would like to thank Jackie Adams, Ramsey Cohen, Director of Industry and Community Affairs, Clayton Homes, William M. Gutierrez, Director of Communications and Technology at Washington University School of Law, and Rachel Mance, Faculty Support Supervisor, Washington University School of Law, for their assistance with this working paper. The author drafted the statutory examples included in this working paper unless a statutory citation is provided. The photograph of the manufactured home is included with permission from istockphoto.
Table of Contents
- Introduction and Intended Use of this Working Paper…………………………………… 1
- The Zoning Problem………………………………………………………………………… 1
- The Structure of Zoning: Unequal treatment and Exclusion………………………….. 2
- The Quality Issue: Preemption Under the National Manufactured Home Construction
and Safety Standards Act of 1974 ………………………………………………………..
3 C. Unequal Treatment …………………………………………………………………………. 3
- What Unequal Treatment Means ……………………………………………………… 3
- The Constitutional Basis for Challenging Unequal Treatment ……………………….. 4
- Statutory Equal Treatment Requirements …………………………………………….. 6
- Exclusion …………………………………………………………………………………….. 6
- Exclusion as a Special Exception …………………………………………………………… 7
- What the Special Exception Does …………………………………………………….. 7
- Case Law ……………………………………………………………………………… 8
- Reforming the Special Exception…………………………………………………………… 9
- Prohibiting a Special Exception for Manufactured Housing………………………….. 9
- Changing Requirements for Special Exceptions………………………………………10
- Design Standards…………………………………………………………………………… 11
- Design Standards for Manufactured Housing……………………………………….. 11
- Community-Based Design Standards………………………………………………… 12
- Reforming Design Standards ………………………………………………………… 12
- Creating a Zoning Strategy for Manufactured Housing………………………………… 13
Getting Zoning for Manufactured Housing Right
A. Introduction and Suggested Use of this Document
This paper is written with the assumption that manufactured housing is an integral part of a larger strategy to provide more affordable housing, and that current zoning practice and implementation is a major barrier to the availability of manufactured housing as a housing resource. It discusses zoning barriers that block manufactured housing, and includes examples of model legislation that can remove these barriers. Unequal treatment is a key issue. State and local legislators, interested citizens, and housing advocacy organizations are the intended audience.
B. The Zoning Problem
“I don’t want them homes over here at all. Your home is ugly, and we don’t appreciate that home being here.” That’s the mayor of a city talking, and is typical of opposition to manufactured housing that excuses zoning barriers. As one recent report concluded, “[i]n jurisdictions where zoning was rated as a significant barrier, the probability of units having been placed was significantly lower than in jurisdictions where zoning was rated as a minor barrier.” 1 Almost all regulatory barriers had a statistically significant impact on the probability that manufactured housing would be allowed.2
This working paper discusses zoning barriers to manufactured housing and how they can be changed.3 Zoning discrimination against manufactured housing cannot be tolerated, and this working paper provides legislative examples that eliminate zoning barriers and create a fair zoning system. After explaining the structure of zoning, the working paper discusses zoning barriers created by unequal treatment, zoning exclusion, the special exception, and design standards. I provide model statutes I prepared that can be adopted to remove barriers to manufactured [housing]. A statute taken from a legislative source is cited to that source.
We must first understand how zoning controls manufactured housing. Zoning almost everywhere is a local government responsibility, and zoning statutes allow local governments to decide how their zoning ordinance will regulate land use. There is little statutory control over content, only a limited number of states have statutory requirements for zoning manufactured housing, and they may not cover all zoning barriers. Judicial review often is the only option, and courts do not usually disapprove restrictive zoning.
- 1) Casey J. Dawkins, Theodore Koebel, Marilyn Cavell, Steve Hullibarger The Home Team, David B. Hattis
Building Technology Incorporated, and Howard Weissman Institute for Building Technology & Safety (IBTS, Regulatory Barriers to Placement of Manufactured Housing in Urban Communities, 21. 2011.Washington, D.C: U.S. Department of Housing and Urban Development. The probability rate dropped from 77.5% to 53.9%.
- 2) at 39. Permitting systems had the greatest impact. Id. at 42.
- 3) This working paper is based on Daniel R. Mandelker. 2016. “Zoning Barriers to Manufactured Housing,” The Urban Lawyer 48:2, 239.
https://bpb-us-w2.wpmucdn.com/sites.wustl.edu/dist/a/3075/files/2021/12/Article-Final_-Zoning-Barriers.pdf This article is cited throughout as a reference for topics discussed in the working paper.
1. The Structure of Zoning: Unequal treatment and Exclusion
Zoning as it affects manufactured housing is a complicated system. The most important distinction is the distinction between zoning by right that applies without administrative or legislative review, and zoning that requires a discretionary review process. An example of the first alternative is a zoning restriction that prohibits manufactured homes in single-family zoning districts. An example of the second alternative is a requirement for design review approval from an architectural review board.
Complications are created because zoning is not a well-constructed, integrated system. It is disjointed, confused, and illogical with many moving and unrelated parts. This disjointed structure allows local governments to restrict manufactured housing.
It is zoning’s purpose that makes restrictive zoning for manufactured housing possible. Zoning’s purpose is to separate land uses that can harm each other into separate zoning districts. Separate commercial and residential districts are an example. Separation provides the basis for the discriminatory treatment of manufactured housing, because local governments often assume that manufactured housing is a harmful use that requires exclusion or limitation.
Zoning districts are the building blocks of zoning. They have their origins in a model State Standard Zoning Enabling Act proposed by the U.S. Department of Commerce in 1926. Most states adopted the model law, and all zoning statutes use its structure. Zoning statutes authorize zoning districts and allow local governments to decide what uses are allowed in what zoning districts and with what restrictions.
Although zoning statutes do not require it, zoning districts in practice are almost always exclusive. Only a single use is permitted in each zoning district. Single-family land use districts, for example, permit only single-family homes and may exclude manufactured housing.
Exclusive single-family zoning districts created a constitutional controversy early in the history of zoning. The U.S. Supreme Court settled this controversy almost 100 years ago, when it upheld an exclusive single-family zoning district that excluded apartments in a Cleveland suburb. The Court’s decision contained language that viewed single-family zoning as a necessary protective measure that can prevent harmful intrusions, such as apartments. Courts usually consider manufactured housing a harmful intrusion.
Uses permitted in zoning districts are permitted by right, such as single-family homes in single family districts. By right permission means that a use, such as a single-family home, is permitted without any additional legislative or administrative review. Most zoning change, however, is not permitted by right and requires approval through a discretionary review. An example is a legislative rezoning from one zoning district to another to allow a different use, such as manufactured housing.
- 4) Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (upholding single family zoning district)
- The Quality Issue: Preemption Under the National Manufactured Home Construction and Safety Standards Act of 1974
Quality issues also provide opportunities for unequal treatment because over restrictive local building regulations can increase costs and can be applied unequally to manufactured housing. Conflicting local building regulations can complicate production.
Congress acted on this problem. Legislation adopted in 1974 and administered by the U.S. Department of Housing and Urban Development (HUD) established national building code standards that preempt local building standards that are inconsistent with the national code. The statute does not preempt local zoning.
The adoption of the national statute and national code led to a marked improvement in quality in new manufactured housing, because it must comply with the code. State legislation for manufactured housing is often limited to housing built after the national code was adopted, and yet much of the manufactured housing stock predating this national code remains and has a lower quality. Legislation proposed in this working paper is not limited to manufactured housing built after the national code was adopted, but this limitation can be added.
HUD considered zoning preemption in a 1997 Statement of Policy, but more extensive preemption is needed. The federal law should preempt zoning that prohibits or excessively restricts manufactured housing by requiring the equal treatment of manufactured housing in zoning ordinances, by requiring that manufactured housing should be designated as a permitted use in residential zones, by prohibiting special exceptions for manufactured housing in residential zones, and by prohibiting restrictive design review.
Manufactured home installation must also be regulated to prevent structural problems after a home is installed. Congress did not originally regulate installation under the federal statute, it was regulated in only a few states, and often was done improperly. HUD has now adopted installation standards, and states may adopt standards that equal or exceed the federal standards. States are required to adopt a law requiring installer licensing and training and installation inspection.
- 5) For discussion of the statute see Mandelker, supra note 3, at 241-24
C. Unequal Treatment
1. What Unequal Treatment Means
Unequal treatment is a key issue in zoning for manufactured housing. Unequal treatment is created by zoning classifications because all zoning classifies land use. A typical zoning classification divides land uses into residential, commercial, and industrial uses, which courts uphold. Restrictive zoning for manufactured housing can create unequal treatment that courts should not uphold.
Here are examples of zoning requirements for manufactured housing that are not applied equally to site-built housing:
- Exclusion from a municipality
- Exclusion from all or some single-family zoning districts
- Exclusion based on the age of manufactured housing
- Limitation to specially designated zoning districts, such as rural and agricultural zoning districts
- Limitation to manufactured housing parks
- Minimum lot size requirements
- Requiring a special exception for manufactured housing in a single-family zoning district
- Refusing to approve a special exception for manufactured housing in a single family zoning district
- Rejecting rezoning to a district where manufacture housing is permitted, when rezoning for other uses to a district where they are permitted is approved
- Refusing to approve a special exception, site plan approval, or certificate of appropriateness in an historic district for manufactured housing, when these approvals are granted for similar uses
- Refusing to approve a subdivision for manufactured housing when similar subdivisions for site-built housing are approved
- Minimum building size requirements that are not required for site-built housing
- Design standards limited to manufactured housing
- Denial of design approval for manufactured housing, when design approval is approved in similar circumstances for site-built housing
- Dimensional requirements
- Setback requirements
- Landscaping requirements
- Requiring elevation at grade level above a floodplain, excessive dormer lengths, storm shelters, and 300 square feet of public playground space for manufactured housing, when these requirements do not apply site-built housing
- 6.) For discussion of unequal treatment see Mandelker, supra note 3, at 247-254.
2. The Constitutional Basis for Challenging Unequal Treatment
Problems can be created under the constitutional equal protection clause if the different treatment of different uses in zoning is unequal, but judicial review of unequal treatment in zoning is weak. Zoning is social and economic legislation, and courts apply a rational basis standard of judicial review to social and economic legislation that is satisfied even if there is disagreement about whether a classification is rational. Social and economic legislation also enjoys a presumption of constitutionality, which means that the party challenging the legislation has the burden of proof to show that it is unconstitutional. These rules weaken the possibility that a zoning ordinance classification that treats manufactured housing unequally will be held unconstitutional.
To understand the role of the courts in reviewing the constitutionality of a law under the equal protection clause it also is necessary to understand how judicial review functions. Assume a local government changes its zoning to exclude manufactured housing from single-family zoning districts. A lawsuit is brought to challenge the exclusion in a state or federal trial court.
The trial court will hear the case and testimony will be introduced that supports the constitutionality of the exclusion. It likely will include evidence on the negative effect that manufactured housing has on single-family housing in the zoning district.
If the case is appealed to an appellate court, that court will not take new testimony on whether the exclusion has a rational basis, and it should decide this issue based on evidence presented to the trial court. The appellate court instead can provide its own unsupported explanation for its decision, and often it is based on negative perceptions of manufactured housing that have no basis in the trial record and no basis in fact. One court, in a case where manufactured homes were excluded from single-family residential zoning districts, held that unequal treatment could be justified by public perception:
The issue, however, is not whether there is anything inherently different about manufactured housing, but whether there is a public perception in each of the Defendant communities that such a difference exists. If there is indeed a perception among the public in Silt, Salida, Fountain or Frederick that manufactured houses are incompatible with site-built houses, threaten the tax base or cause depreciation of market values of site-built homes, the municipalities are not required to perform studies to establish the correctness of such perceptions. Rather, the legislative branch of municipality is authorized to address those problems without assessing the validity of the public concerns.7
Outright hostility is obvious in other cases. As one court put it, “The indiscriminate placement of mobile homes within a municipality may undermine conservation of property values and stifle the development of a potential residential neighborhood.”8
Other courts provide similar reasons when they consider the unequal treatment of manufactured housing in zoning.9 They have upheld a refusal to rezone, an exclusion from residential zones, a
limitation to manufactured housing parks and manufactured housing subdivisions, size limits, aesthetic regulations, time limits on permits, and size and age requirements.
- 7) Colorado Manufactured Housing. Association v. City of Salida, 977 F. Supp. 1080, 1085 (D. Colo. 1997)
(exclusion from residential zones)
- 8) City of Lewiston v. Knieriem, 685 P.2d 821, 825 (Idaho 1984) (manufactured housing excluded from farm zone where single-family dwellings were allowed).
- 9) For citations to cases see Mandelker, supra note 3, at 248 note 71.
- 10) Id., at 248, note 68.
- 11) Id., at 260, notes 122, 123.
3. Statutory Equal Treatment Requirements
State legislation can prohibit the unequal treatment of manufactured housing and eliminate many zoning barriers. Here is a statutory model:
A local government may adopt, apply, and enforce a requirement or exclusion in a zoning ordinance for manufactured housing, and the lot on which it is placed, only if the requirement or exclusion is adopted, applied, and enforced for all single-family and multifamily housing and the lots on which they are placed.
A statute can also prohibit requirements and exclusions limited to manufactured housing:
A municipality shall not adopt, apply, or enforce any requirement or exclusion in a zoning ordinance that is adopted, applied, and enforced only for manufactured housing.
Zoning ordinances can include restrictive requirements that apply uniformly to all residential housing, such as excessive minimum lot size requirements. They are not covered by an unequal treatment statute but should be attacked in court as examples of exclusionary zoning.
- 12) For discussion of statutory equal treatment see id., at 251-254.
Exclusion from all or part of a municipality is a common and restrictive zoning barrier. So are other exclusions, such as the exclusion of manufactured housing that is over a certain age.
Exclusion of manufactured housing from single-family residential zones is common. Exclusion is usually from the single-family residential zone with the lowest residential density, and manufactured housing may be restricted to zoning districts that do not include housing, such as rural and agricultural zones or commercial zones.
Courts uphold these exclusions with reasons similar to the reasons they give for upholding any unequal treatment. They can include a claim that manufactured housing increases crime, limits growth potential, and has an adverse effect on the development potential of a neighborhood.
Legislation can prohibit the exclusion of manufactured housing from single-family residential districts by providing that manufactured housing is a permitted use in these districts:
A local government shall not exclude single-family or multifamily manufactured housing from a single-family or multifamily residential zoning district, and manufactured housing is a permitted use in all single-family or multifamily residential zoning districts.
A local government can include a similar requirement in its zoning ordinance:
Manufactured housing is a permitted use in all single-family and multifamily zoning districts.
Statutes can do more and affirmatively require a local government to designate an adequate number of sites for manufactured housing:
Local governments shall designate an adequate number of readily available sites in their zoning ordinance for single-family and multifamily manufactured housing in locations similar to the locations that are available for single-family and multifamily conventional housing.
- 13) For discussion of exclusion from residential zones see Id., at 254-261.
E. Exclusion as a Special Exception
1. What a Special Exception Does
All zoning legislation authorizes “special exceptions” from requirements included in a zoning ordinance. “Conditional use” or “special permit” are alternate terms. A local board called a board of zoning adjustment typically grants special exceptions, but a local legislative body can have similar authority, A use designated as a special exception is approved in an administrative review process. Conditions can be and are usually attached.
Local governments decide what uses they want to classify as a special exception. The model Standard State Zoning Enabling Act does not provide guidance on this decision, but it is understood that the special exception is intended for land uses that can locate in a zoning district but require administrative review to consider problems that might require rejection, or conditions that mitigate these problems. A day care facility in a single-family residential district is an example because parking and the employment of off-site employees require special consideration. Special exceptions provide a middle ground between prohibited and permitted uses, but including a special exception in the zoning ordinance provides a presumption that it should be approved.
Local governments decide on what standards to include in a zoning ordinance as the basis for approving special exceptions. These standards are either mandatory or discretionary. A setback requirement is a mandatory standard. A discretionary standard gives a zoning board the flexibility to decide whether to approve or disapprove a special exception, but it must not be so vague that it delegates decisions on legislative policy to the zoning board.
A requirement that a special exception can be approved only if it is compatible with land uses in the adjacent area is a common discretionary standard. This requirement reinforces the purpose of zoning, which is to separate uses that can harm each other. Compatibility standards are judicially approved but do not have a clear meaning, and can be interpreted so that they allow a zoning board to make arbitrary denials. Here is an example of a compatibility requirement:
The special exception shall be compatible and consistent with the character of the zoning district and the area immediately adjacent to the special exception.
The harm prevention purpose of zoning is reinforced by an acceptable and common discretionary standard that requires a zoning board to consider the effect of a proposed special exception on the property values of adjacent property:
The special exception shall not affect the use and value of property in a substantially adverse manner in the immediate area of the special exception.
This discretionary standard also is ambiguous and has the same vagueness problem as the compatibility standard.
Local governments may try to achieve the widest possible discretion in considering special exceptions by adopting a general welfare standard:
The special exception shall not be injurious to the public health, safety, morals, or general welfare of the community.
This standard has not always been judicially approved, and allows unlimited discretion that creates opportunities for inconsistent and arbitrary decisions.
Administrative procedures for approving special exceptions in most states are basic. Most states, following the model Standard State Zoning Enabling Act, require only basic procedures that do not give an applicant a fair opportunity to present her case. Special exceptions should require adjudicatory procedures that include notice and a hearing, the right to cross-examination and a requirement for findings of fact. Only a few states have these procedures.
2. Case Law
Courts usually uphold the denial of a special exception for manufactured housing, relying on the biased explanations they use when they uphold an exclusion of manufactured housing from single-family residential districts. In one case, for example, a developer intended to place five manufactured homes in a subdivision of 26 site-built and predominantly single-family brick homes. The court upheld a rejection of a conditional use permit for this project, the equivalent of a special exception, and said:[I]t was determined that the aggregate placement of manufactured homes was not compatible with the character of the existing neighborhood, which is one that is well-established and consists of modest, well-kept homes where all but one are brick-and-frame structures…. There was concern as to the long-term quality of manufactured homes and the effect that manufactured housing would have on property values, questions that went unanswered.
A U.S. Supreme Court decision, City of Cleburne v. Cleburne Living Center,16 provides an argument for not allowing denial of a special exception based on negative attitudes. In this case the Supreme Court reversed a denial of a permit for a group home for the disabled. Group homes required a permit, but not apartment houses, multiple dwellings, boarding and lodging houses and other similar uses. The city council denied the permit partly because a majority of the neighboring property owners had negative attitudes toward group homes. Applying rational basis review, the Supreme Court held that the denial violated equal protection:
Mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently from apartment houses, multiple dwellings, and the like.
Cleburne considered a special permit for a group home for the mentally disabled, but it can apply to a denial of a special exception for manufactured housing that is based on negative attitudes, fear, and unsubstantiated zoning factors. An earlier case reversed a denial of a special use permit for a manufactured housing complex when the denial was based on community pressure against additional manufactured housing in an area zoned for manufactured housing.
F. Reforming the Special Exception
1. Prohibiting a Special Exception for Manufactured Housing
The simplest and most necessary reform is a statute providing that a special exception cannot be used to prohibit manufactured housing. A statute that makes manufactured housing a permitted use in residential zones also prohibits a special exception. There is no rational basis for distinguishing manufactured from site-built housing, and therefore no rational basis for classifying manufactured housing as a special exception.
- 15) Rolling Pines Ltd. Partnership v. City of Little Rock, 40 S.W.3d 828, 834 (2001).
- 16) 473 U.S. 432 (1985).
- 17) Id., at 446.
- 18) Pleasant Valley Home Construction, Ltd. v. Van Wagner, 363 N.E.2d 1376 (N.Y. 1977).
2. Changing Requirements for Special Exceptions
Changes are needed in the special exception if it applies to manufactured housing. Requirements that are applied unequally to manufactured housing should be prohibited:
A local government shall not subject single-family and multifamily manufactured housing to a requirement in a special exception, administrative permit, planning, or development process unless it is included in in a special exception, administrative permit, planning, or development process that applies to conventional single-family or multifamily housing.
The statute should also require clear, objective, and defined standards that do not discourage manufactured housing.
A zoning board may only deny a special exception by considering standards that comply with the following requirements:
(a) the standards shall be clear and objective on the face of the ordinance;
(b) the standards shall identify objective factors, such as land use and density, that may be considered to decide whether the special exception is compatible with land uses in the surrounding area;
(c) the standards shall not have the effect, either individually or cumulatively, of discouraging manufactured housing through unreasonable cost or delay.
Changes must also be made in the process for deciding whether to approve special exceptions. It must be a disciplined administrative process that includes findings of fact and reasons for the decision.
Conditions are usually attached to special exception approvals, and restrictive conditions can be as damaging to manufactured housing as denials. Conditions must not apply unequally to manufactured housing, must be related to the issues that are considered when a special exception is approved, and must not discourage manufactured housing through unreasonable cost and delay:
A local government shall not approve a special exception for manufactured housing with conditions that do not apply to conventional housing, shall only approve conditions that relate to the compatibility of the special exception with land uses in the surrounding area, and shall not approve conditions that discourage manufactured housing through unreasonable cost or delay.
The accepted rule is that the applicant has the burden to prove that a special exception should be granted. This rule should be changed. Because adopting a special exception requirement creates a presumption that the special exception should be granted, the burden of proof should shift to objectors to prove that the special exception should be denied after an applicant has introduced evidence showing that the special exception should be approved.
G. Design Standards
1. Design Standards for Manufactured Housing
Design standards for residential development are a major feature of land use programs in many municipalities. Their objective is to improve the appearance of residential housing in order to avoid the design monotony that often dominates residential development. Design standards for manufactured housing were a reaction to the early single-wide mobile home, a narrow, rectangular dwelling that was small in size, had a flat metal roof and had metal siding. They are one of the most obstructive regulations that create a barrier to manufactured housing because they can create costs that make manufactured housing economically impossible.
Despite this problem, some state statutes authorize design standards limited to manufactured housing, or make design standards an exception to a statutory requirement that manufactured housing must receive equal treatment in zoning. The design standards for manufactured housing that are included in a Nebraska statute illustrate the restrictive standards that legislatures can adopt:[A local government may] require that manufactured homes meet the following standards:
- The home shall have no less than nine hundred square feet of floor area;
- The home shall have no less than an eighteen-foot exterior width;
- The roof shall be pitched with a minimum vertical rise of two and one-half inches for each twelve inches of horizontal run;
- The exterior material shall be of a color, material, and scale comparable with those existing in residential site-built, single-family construction;
- The home shall have a nonreflective roof material which is or simulates asphalt or wood shingles, tile, or rock; and
- The home shall have wheels, axles, transporting lights, and removable towing apparatus removed.
Design standards like the Nebraska design standards prohibit or raise the cost of manufactured housing. These standards do not have an acceptable aesthetic basis. What is the aesthetic justification for non-reflective roof material, nine hundred square feet of floor area, or the roof pitch requirement?
The Nebraska design standards also raise constitutional problems. One problem is whether local aesthetic design regulations are constitutional. This issue has been settled affirmatively in most states. There also is an unequal treatment problem. Design standards limited to manufactured housing can create an unfair classification that violates the constitutional equal protection clause. Equal treatment can be required by legislation.
19) For discussion of design standards see Mandelker, supra note 3, at 261-265.
20) Neb. Rev. Stat. Ann. § 19-902(2)(a). Any additional standards must be uniform. Id, § 19-902(2)(b).
2. Community-Based Design Standards
Local governments can avoid the inequality problem by adopting design standards that apply uniformly to all residential dwellings in a community, including manufactured housing. A common basic standard is a look-alike standard that requires all new housing to look like housing in the surrounding area. Courts have upheld this standard in a few cases, but it can have a restrictive impact on manufactured housing. It would prohibit manufactured housing in a neighborhood of brick homes or in neighborhoods that have a distinctive design, for example, such as English Tudor or Dutch Colonial.
Another type of basic design standard is a dissimilarity or not-look-alike standard. This type of standard is intended to achieve variety in design, and requires that new housing must not look like any other housing in the immediate area. Its effect on manufactured housing will depend on how much variety there is in housing that is adjacent.
More difficult problems are presented by design standards that require customized design treatment. They may be difficult for manufactured housing to meet because manufactured housing has standardized design features. This design standard is an example:
Residential homes shall incorporate articulation of all facades, including variation in building massing, roof forms, and wall planes, as well as surface articulation.
Residential design ordinances may also require design review by an architectural review board that decides whether to approve a design. Design review presents the typical problems created by any discretionary review procedure, including opposition to the design that is presented for approval, delay in making decisions, and the possibility of arbitrary decisions because design standards can be vague.
21) Antioch, California, Citywide Design Guidelines, Single Family Residential, § 6.1(c), p. 6-8 (2009).
3. Reforming Design Standards
Reform of design standards must consider design standards that apply to all residential housing as well as design standards for manufactured housing. Equal treatment statutes invalidate only design standards that apply to manufactured housing.
Design standards for all residential housing that require customized design can present difficulties. They can create a barrier to manufactured housing but they are invalid only if a court does not accept their aesthetic purpose or if they are too vague. Legislation can provide some protection for manufactured housing by prohibiting design standards that can cause unreasonable cost or delay:
A local government may not adopt design standards that have the effect, either individually or cumulatively, of prohibiting or discouraging manufactured housing through unreasonable cost or delay.
Examples of design standards that can violate the unreasonable cost prohibition are a standard requiring manufactured housing to be comparable to adjacent conventional housing or that require excessive roof pitch standards. The unreasonable delay requirement would prohibit a design standard that does not include timely decision requirements for design review.
Design issues can be managed by creating a zoning district limited to manufactured housing. The district can be available for manufactured housing on individual lots or for manufactured housing developments. Design standards adopted for the district should be limited to standards that manufactured housing can meet. Here is a statutory provision:
A local government may adopt a residential zoning district in which manufactured single-family and multifamily housing is the only permitted use. The district may not consist of an individual lot or scattered lots, but must be a defined geographic area. It shall include only design standards for manufactured single-family and multifamily housing that do not create unreasonable cost or delay.
Planned unit development (PUD) is another zoning alternative that can be used for manufactured housing. It is a discretionary review process in which a local government approves a development plan for a PUD that controls how the PUD will be developed. A manufactured housing development can be approved as a PUD. The advantage of a PUD is that the local government can adopt customized development and design standards in a development plan that are appropriate for each manufactured housing project.
H. Creating a Zoning Strategy for Manufactured Housing
Zoning is a complex, disorganized system that allows local governments to make biased land use decisions with little judicial control that discriminate against manufactured housing. Reform is needed. A support organization that provides litigation and legislative support assistance for reform efforts can be a valuable resource.
Litigation support should include making information available on pending trial and appellate litigation, pending trial and appellate briefs, and studies and reports that can provide resources for defending manufactured housing. Support should also include help with case selection, periodic meetings, and coaching that provides instruction for litigation advocacy.
Legislative support should include making legislative models and supporting documentation and studies available for proposed legislation, and advice on legislative advocacy.
Legislative change can occur at the state and local government levels. This working paper includes a number of state statutory proposals with recommendations for changes in zoning ordinances. The following recommendations suggest how several of these statutory recommendations for manufactured housing can be included in zoning ordinances:
- Manufactured housing should be a permitted use in all residential zoning districts.
- A special exception should not be required for manufactured housing.
- If a special exception is required, the ordinance should not include restrictive standards limited to manufactured housing. Vague standards that can allow arbitrary denials of special exceptions for manufactured housing should not be included. A “compatibility” standard is an example. The model legislation for special exception standards that is included in this working paper can be a guide for acceptable special exception standards in a zoning ordinance. They should objectively identify the issues a zoning board should consider when it decides whether to approve a special exception.
- Complete and disciplined administrative procedures should be provided for reviewing special exceptions that will provide an adequate opportunity for participation by all parties and adequate controls on decision-making by zoning boards. A model administrative procedures act adopted by the American Bar Association provides a model for similar procedures at the local level.
- Restrictive design standards that apply only to manufactured housing should not be included.
- Design standards should not require customized designs that are difficult for manufactured housing to meet because they prohibit or discourage manufactured housing through unreasonable cost or delay.
- Zoning districts can be adopted that are limited to manufactured housing. They can be standalone or overlay districts that accommodate individual manufactured homes and manufactured housing developments. Design standards should accommodate design possibilities that manufactured housing can provide.
Restrictive zoning creates serious barriers to manufactured housing, which is an important affordable housing resource. Zoning reform is needed that can create a zoning system in which manufactured housing is treated fairly and equally. ##
22) The model legislation is reproduced on page 10, supra.
23) Joint Task Force of the State and Local Government and Administrative Law and Regulatory Practice Sections of
the American Bar Association, Model Statute on Local Land Use Process (2008).
Howard J. Barewin. 1990. “Rescuing Manufactured Housing From the Perils of Municipal Zoning Laws,” Washington University Journal of Urban & Contemporary Law 37:1, 189. https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1255&context=law_urbanlaw
Casey J. Dawkins, Theodore Koebel, Marilyn Cavell, Steve Hullibarger The Home Team, David
- Hattis Building Technology Incorporated, and Howard Weissman Institute for Building
Technology & Safety (IBTS, Regulatory Barriers to Placement of Manufactured Housing in Urban Communities. 2011.Washington, D.C: U.S. Department of Housing and Urban Development.
“Factory-Built Housing for Affordability, Efficiency, and Resilience,” Evidence Matters, (Winter/Spring 2020).
Thomas P. Field. Mobile Homes of The Kentucky and Lexington Hexagon: A Study in Areal Distribution. 1972. Lexington: University of Kentucky. Kentucky Study Series Number 5.
Karan Kaul, Karan and Daniel Pang. “The Role of Manufactured Housing in Increasing the Supply of Affordable Housing,” (Urban Institute, 2022). https://www.urban.org/research/publication/role–manufactured–housing–increasing–supplyaffordable–housing
Anika Singh Lemar. 2019. “The Role of States in Liberalizing Land Use Regulations,” University of North Carolina Law Review 97:1, 293 (discussing statutes that regulate manufactured housing).
Sue Eng Ly. 2018. “Forget Me Not: Manufactured Home Owners and the Laws That Leave Them Behind,” University of Louisville Law Review 57:1, 183. https://img1.wsimg.com/blobby/go/05e8fd6b–a5de–4f26–b65a–ac38591fe866/downloads/57ULouisvilleLRev183.pdf?ver=1655928664469
Daniel R. Mandelker. 2010. “Designing Planned Communities.” https://wustl.app.box.com/s/ehwllrnjxfozkdildeiqrfw65dyyw9yv
Daniel R. Mandelker, Planned Unit Developments. 2007. Planning Advisory Service Report 545. Chicago: American Planning Association.
Daniel R. Mandelker. Forthcoming. “Mixed-Use Zoning.” Real Property, Trust and Estate Law Journal.
Daniel R. Mandelker. 2016. “Zoning Barriers to Manufactured Housing,” The Urban Lawyer 48:2, 239. https://cpb–us–w2.wpmucdn.com/sites.wustl.edu/dist/a/3075/files/2021/12/Article–Final_Zoning–Barriers.pdf
Model Statute on Land Use Process
The National Manufactured Home Construction and Safety Standards Act, 42 U.S.C. § 5403(d).
North Carolina Statutes §160D-910(e) (authorizing overlay zone for manufactured housing). https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_160D/GS_160D910.pdf
Kenneth Pearlman, Elizabeth Linville, Andrea Phillips, and Erin Prosser. 2006. “Beyond the Eye of the Beholder Once Again: A New Review of Aesthetic Regulation,” The Urban Lawyer 38:4, 1119.
Jagruti Rekhi and Michael Blanford. 2020. “Effects of Market Forces on the Adoption of Factory-Built Housing,” Evidence Matters, (Winter/Spring 2020).
Welford Sanders, Manufactured Housing: Regulation, Design Innovations, and Development Options. 1998. Planning Advisory Service Report 478. Chicago: American Planning Association.
- Tsuriel Somerville and Christopher Mayer. 2003. “Government Regulation and Changes in the Affordable Housing Stock,” Economic Policy Review 9, no. 2 (June 2003): 45. https://www.newyorkfed.org/medialibrary/media/research/epr/03v09n2/0306some.pdf
James A. Thorson. 1997. “The Effect of Zoning on Housing Construction,” Journal of Housing Economics 6: 81–91.
U.S. Department of Commerce. 1926. A Standard State Zoning Enabling Act.
U.S. Department of Housing and Urban Development, Manufactured Housing: Statement of Policy 1997–1, State and Local Zoning Determinations Involving HUD-Code, 62 Fed. Reg. 24337 (1997)
Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (upholding single family zoning district)
The PDF of the above is found linked here as a download. In case of any conflict between the above and the download, the download should be considered as the more definitive representation of the views of Professor Daniel Mandelker, the author of the above.
Part II Additional Information with More MHLivingNews Analysis and Commentary
The following are the views of MHLivingNews and/or this post’s author. For absolute clarity, the following are this publication’s expert views and should not be construed as the views of Prof. Mandelker. The following facts, observations, and editorial perspectives are provided in no particular order of importance.
- An MS Word search of the research by Professor Mandelker does not reveal any mention of the Manufactured Housing Institute (MHI).
- The document attached as a download and provided in Part I above specifically acknowledges an official with Clayton Homes. Clayton Homes is an MHI member. Clayton is obviously among MHI’s most prominent ones.
- As was noted in the preface, by emailed agreement, Prof. Mandelker and this publication note that he and our platform do not yet agree on the notion of “enhanced preemption” as claimed by others involved in manufactured housing with respect to the Manufactured Housing Improvement Act of 2000 (MHIA).
- A transcript of Kevin Clayton, CEO of Berkshire Hathaway (BRK) owned Clayton Homes addressing a Congressional “field hearing” in Danville, VA is attached at this link here. The subject was the implementation of the Manufactured Housing Improvement Act (MHIA) of 2000. Part of that testimony by Kevin Clayton, for MHI and as found in a document that featured MHI’s logo, stated the following.
- establishing a balanced consensus process for the development, revision and interpretation of construction standards;
- creating a ‘Non Career’ position within HUD to oversee the manufactured housing program
- establishing model manufactured home installation standards; and
- establishing a program to enforce standards in states that choose not to implement their own programs and enhancing the federal preemption of the HUD Code.
Despite these improvements, HUD has been unable to keep the HUD Code updated in a manner consistent with other building codes. This has made it difficult, if not impossible, for the industry to utilize state of the art building products and technologies. In addition, outdated building codes have left the industry vulnerable to discriminatory zoning and local regulatory restrictions.
Even with Congressional action to significantly strengthen preemption of the HUD Code and its enforcement regulations, HUD has failed to change its outdated 1997 policy guidance on preemption. More importantly, HUD has been unwilling to intervene when state and local regulators attempt to mandate requirements above and beyond the HUD Code or when communities use local zoning to unlawfully prohibit or restrict the placement of manufactured housing.”
4.a) In short, Clayton speaking for MHI, was apparently making the argument that the MHIA gave HUD the authority to override local zoning. Specifically, restating part of the above for emphasis, Kevin said: “HUD has been unwilling to intervene when state and local regulators attempt to mandate requirements above and beyond the HUD Code or when communities use local zoning to unlawfully prohibit or restrict the placement of manufactured housing.”
5). It is not yet clear at the time of this publication if MHI or Clayton informed Prof. Mandelker about statements made by Kevin Clayton which are quoted above. But what is clear is that nowhere in Mandelker’s zoning discussion is the MHIA or federal preemption mentioned. Again, he asked for clarity by MHLivingNews that his working paper on zoning did not address the claimed HUD federal preemption related questions as they pertain to manufactured housing. Fair enough.
6). That said, what about Clayton’s or MHI’s obligations in this research matter? Neither the “Manufactured Housing Institute” nor “MHI” are mentioned at all, per the MS Word search tool of his working paper document. The final paragraph in Mandelker’s working paper abstract said: “A support organization is needed that can provide litigation and legislative support to help manufactured housing advocates with zoning reform. Statutory reform proposals for legislative change should be included in local zoning ordinances.”
7). That said, a fair question for MHLivingNews in this Part II analysis is this. Isn’t it reasonable for someone insider or outside of manufactured housing to think that MHI ought to be the “support organization is needed that can provide litigation and legislative support to help manufactured housing advocates with zoning reform.” After all, MHI claims to represent “all segments” of the manufactured home industry. Clayton’s full testimony to Congress on behalf of MHI is linked here. Put differently, why has MHI, Clayton, or others not pressed the federal preemption question under the MHIA legally? It is apparent from Kevin’s testimony to Congress that they are well aware of the “enhanced preemption” issue that manufactured housing professionals and others (see #11 below) assert could be deployed by HUD to overcome zoning barriers for manufactured housing. Pressing federal preemption could be useful to literally millions of Americans who currently seek affordable housing but cannot access a manufactured home as they might wish to do so absent zoning barriers. When state preemption for Accessory Dwelling Units (ADUs), which are routinely factory-built, was enacted in California, sales of such dwellings soared.
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8). Mandelker’s years of research on this zoning barriers issue for manufactured housing ought to be respected. To the extent that it avoids the federal “enhanced preemption” topic, much that it provides is useful for those seeking a more rapid resolution to the very challenges that Mandelker’s working paper describes. That said, it is odd at best, troubling at worst, that when a Clayton official (i.e.: Ramsey Cohen, Director of Industry and Community Affairs at Clayton Homes) is formally acknowledged as being involved in some fashion in Mandelker’s paper, that Kevin Clayton’s testimony on this thorny issue is not raised. The case can be made that it should have been Clayton, or MHI, or others in that orbit that brought the preface and Part II observations raised by MHLivingNews to Mandelker’s attention for inclusion in his important working paper on zoning barriers.
9). Among the reasons that so-called federal “enhanced preemption” should be part of a future revision of this working paper for the Lincoln Institute for Land Policy may include the following. Some attorneys and professionals question if the MHIA’s verbiage on preemption truly ‘enhanced’ HUD’s ability to overcome local zoning barriers. That issue was raised in testimony with HUD Secretary Marcia Fudge, as CSPAN and MHProNews reported. Those who question the MHIA’s ‘enhanced preemption’ language at times point to a limited number of legal cases that appear to consider and reject the language found in the MHIA 2000 reform law. Or legal rulings may point to pre-2000 cases, which more obviously should be moot in this discussion because the MHIA could render prior cases of interest, but legally moot. Additionally, the argument could be made that on the remainder of those few legal cases that do consider the MHIA and its ‘enhanced preemption clause that a given court may have erred in some form or fashion. The bottom line is that the U.S. Supreme Court has never ruled on this MHIA enhanced preemption issue. These are important concerns. Perhaps the single most important point that pre-Berskhire era MHI, in conjunction with the Manufactured Housing Association for Regulatory Reform (MHARR), had for enacted the MHIA was to obtain enhanced federal preemption in exchange for additional consumer safeguards. Congress passed it as part of a larger bill by a widely bipartisan margin.
10). The question that this publication and our MHProNews sister publication have pressed Kevin Clayton, and other corporate or staff ‘leaders’ and attorneys involved with MHI is this. Why haven’t they sincerely, robustly, and effectively pressed these legal issues and controversies via litigation? Hold that thought as the next points are raised.
11) Beyond Kevin Clayton’s quoted remarks to the Danville, VA congressional field hearing, are the following array of comments that include some of the legislators who were involved in enacting the MHIA.
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12). Ironically, MHARR has made a similar finding to the comment raised in the abstract of Prof. Mandelker’s working paper. First, readers should note that MHARR is a producers’ organization. Namely, that the manufactured home industry needs a new post-production trade group. That is similar to the working paper’s abstract remark that a “support organization is needed that can provide litigation and legislative support to help manufactured housing advocates with zoning reform.” To that quoted point, in our industry expert view, MHLivingNews editorially concurs.
Prof. Mandelker’s points are important ones in understanding the role that zoning has been a barrier or limiting factor for manufactured housing for decades. The specifics of how zoning has been used are quite well illustrated by his working paper. Couple his working paper with the notion of enhanced preemption – which Mandelker has not yet ‘bought into,’ but which Kevin Clayton himself apparently argued on behalf of as was quoted herein, and an even more dynamic problem-solution case is documented.
Logically, one might think that Clayton and/or MHI would have had access to all of the legal talent and research needed on the ‘enhanced preemption’ issue, well before Kevin made those remarks quoted in Part II #4 above. Those statements by Clayton were made under ‘truth in testimony’ certification to Congress.
That said, it these points beg the question. Why hasn’t Clayton, MHI, and others in the MHI ‘post-production’ orbit legally pressed this federal preemption issue? To understand the possible motivations for that, see the linked reports to learn more. ###
Update on 3.28.2023 at 12:29 PM ET, for added clarity.
Professor Mandelker discusses preemption through the lens of the 1974 national building standards act. Mandelker does not believe that the Manufactured Housing Improvement Act of 2000 amendment to the 1974 act preempts zoning because several court cases have held that it does not preempt. That is a debatable issue. MHLivingNews editorially holds the view that it does based upon respected advocates in the manufactured housing field that have made comments like those cited above in #11. Beyond the remarks by Kevin Clayton (#4 above), there are some arguably related statements on this issue (see #11 above) that supplement Professor Mandelker’s working paper.
FHFA Listening Session remarks by L. A. “Tony” Kovach.
HUD PD&R on zoning and regulatory barriers to more affordable housing.
Samuel “Sam” Strommen with Knudson Law research on manufactured housing sheds light on internal industry issues not addressed by Prof. Mandelker’s zoning-focused research.
James A. “Jim” Schmitz Jr. and his colleagues at the Minneapolis Federal Reserve have explored concerns on why manufactured housing is underperforming during an affordable housing crisis. They do so through the lens of purported ‘sabotaging monopoly’ tactics.
That’s a wrap on this installment of “News through the lens of manufactured homes and factory-built housing” © where “We Provide, You Decide.” © ## (Affordable housing, manufactured homes, reports, fact-checks, analysis, and commentary. Third-party images or content are provided under fair use guidelines for media.) (See Related Reports, further below. Text/image boxes often are hot-linked to other reports that can be access by clicking on them.)
By L.A. “Tony” Kovach – for MHLivingNews.com.
Tony earned a journalism scholarship and earned numerous awards in history and in manufactured housing. For example, he earned the prestigious Lottinville Award in history from the University of Oklahoma, where he studied history and business management. He’s a managing member and co-founder of LifeStyle Factory Homes, LLC, the parent company to MHProNews, and MHLivingNews.com. This article reflects the LLC’s and/or the writer’s position, and may or may not reflect the views of sponsors or supporters.
Connect on LinkedIn: http://www.linkedin.com/in/latonykovach
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