THE EFFECT OF JUDICIAL ATTITUDES ON CURRENT MOBILE HOME TECHNOLOGIES
PAUL S. WOOD /
A thesis submitted in partial fulfillment of the requirements for the degree of
MASTER OF PLANNING AND COMMUNITY DEVELOPMENT UNIVERSITY OF COLORADO
TABLE OF CONTENTS
Introduction: The Need for an Alternative..........................1
Chapter I: Mobile Home Alternative.................................7
A Market Reality..............................................9
Chapter II: Judicial Review: Changing Attitudes
Chapter III: A Review of Case Law in Relation to Methods
of Mobile home Regulations..........................31
Industrial and Manufacturing..............................1+ 5
Commercial and Business...................................1+ 9
Rural and Agricultural......................................54.
Chapter IV: How Far Does Mount Laurel Open The Doors?.............60
Factors Leading to Mount Laurel..............................61
Mount Laurel's Defense.......................................63
Mount Laurel Opinion.........................................65
Criteria of Zoning Validity..................................66
Fair Share and Region.......................................67
Oakwood v. Madison..........................................68
Mount Laurel II..............................................71
Mount Laurel: An Affirmation of Mobile Homes................74-
Chapter 5: Summary................................................77
Health and Sanitation........................................78
High Denisty Development.....................................78
Transient Character of Occupants.............................87
Motor Vehicle Registration...................................89
Personal Property Tax........................................91
Real Property Tax............................................92
LIST OF FIGURES
1. Cost Comparison of Mobile Homes
and Site Built Homes........................................10
2. Percent of Mobile Home Share of New Home Market.............11
3. Actual Homes Values, Rate of Increase 1968 - 1980..........14.
4- Typical Lot Densities.........................................84
LIST OF TABLES
1. Nationwide Mobile Home Shipments and Values...................14
2. House Density, Units per Acre..................................83
3. People Density, Children per Acre..............................83
INTRODUCTION: THE NEED FOR AN ALTERNATIVE
Over the past forty years, each administration has ranked housing as a prime domestic problem. Diagnosed as primarily a crisis of affordability, each administration has prescribed its "new deal" programs conceived as the means to increased housing starts and national economic health. An infinite progression of public and private studies have documented the intervention of public policy and its subsequent role in shaping the housing goals of this nation.
An assumption central to this paper is that housing is a basiq social interest. In turn housing has a social as well as a market value. No one denies the universal need for safe and adequate housing. It is the delivery of that housing within a centralized policy environment and the inability of that mechanism to address anything but the market value of housing which must finally raise up a re-evaluation of the directions we are choosing. Just as learning has become synonymous with education, and good health with the health services industry, housing has become defined strictly within the bounds of a centralized context. "Housing has commonly come to mean the current stock of commodities and the capability of ever increasing pyramidal structures to provide more." (Turner, 1977, P. 4) The questions becomes more of what, "In the last quarter of 1980, the median cost of a new site built home was $80,600 A price tag that may make owning a home a perpetually unfulfilled American dream." (New
York Times, May 20, 1981)
While affordability is what affects you and me most directly,
certainly becomes an issue which any successful policy
alternative must address, a more fundamental problem, "Housing problems only arise when housing processes, that is housing goods and services and the ways and means by which they are produced, ceases to be vehicles for the fulfillment of their users' lives and hopes." (Turner 1977, P. 68)
Centralized housing policy has grown out of that environment which continually nourished those policy commitments which emphasized the need for government to set the parameters controlling those linkages between the housing industry and a strong viable national economy. In short, government becomes houser. This relationship is the basis of all modern housing policy. The resulting fruit is clearly a product of past choices. Past policy commitments continue to dictate those who benefit from the payoffs as well as those who must live with the consequences. Centralized housing policy has come to identify not only what housing is, how it should look, the ways and means of its production, but most importantly who is allowed access to that product. (Turner, 1979, PP. 133-134)
While some of these consequences of past policy decisions are readily identified, others are not. An important result of past decisions has been the inability of a centralized policy to utilize local resources and recognize real demand. In a policy environment which places its sole emphasis on market value rather than social value, real demand can be easily ignored or misinterpreted.
"The real use-value of housing cannot be measured in terms of how well it conforms to the image of a consumer society-standard. Rather, it must be measured in terms of how well the housing serves the household." (Turner, 1977, P. 120)
Despite governments commitment to established housing goals,
becaupe of this chasm between national quotas and local needs,
such goals today stand only as burned out testaments to sterling
promises. Yet, harsh criticisim of current policy commitment is
not justified if it fails to take into account another factor
often overlooked in the mire of professional agendas.
[Too often overlooked is the factor of complexity. Housing in the United States cannot possibly be merely described or defined as one issue or problem. Housing must be seen as complex bundles of issues and problems. Complexity can not be overlooked as a factor which has, over time, created enough of its own momentum so as not to be easily limited or turned from its course. Probably the most insightful quote I have come upon in my career as a graduate student is as follows:
"Truely there is no easy identified, limited set of obstacles baring the way of better performance. The real problem is that the building sector represents a highly political [centralized] system with tremendous vested rights too complex and too intimately tied to other sectors for any one group of actors in it, industry, labor, or government fully to understand or manipulate it." (Bernhardt, 1980, P.5)
The most dramatic, and now the most vulnerable result of a centralized housing policy has been its reliance on governmental subsidies. Governmental subsidy has become a long standing tradition in making the policy work. Through indirect or direct paymejnts, the government has been making up the difference between actual cost of shelter and the lesser amount the consumer can afford to pay. Efforts of government to provide low cost housing
met with conflicting viewpoints from both ends of the
spectrum. One viewpoint, sounding somewhat pessimistic carries
some hard truth for our consideration when he says:
"There is no such thing as low-cost housing. There's only high-cost housing to be provided to low-income people. The cost of land, labor, material and financing is rising, to expect it to decline is unrealistic." (Davidson 1973, P.
Despite such a viewpoint the government role of houser has gone unquestioned until recently. The vulnerability of our nations' housing policy to shifts in administration policy could be no more dramatically demonstrated that it has under our current administration .
Now in its second term the Reagan adminstration has used its
executive powers, through the budgetory process to cut its support
of past policies. Not only has the government cut its commitments
to all housing and community programs, but it is transferring that
responsibility to the shoulders of state and local governments.
(Journal of Housing, 1983, Sept./Oct., P. 135)
The administration, in an effort to cut federal spending and
reduce its responsibilities in domestic programs has cut and
eliminated housing programs in accordance with its priorities.
For the first time in 45 years the government has severely cut
authorizations which would provide funding for the new
construction or modernization of assisted housing units
"The administration is shedding no tears over the lack of authorizing legislation for assisted housing. It has been trying for two years to kill virtually all construction programs for low-income housing." (The Denver Post, Nov 28, 1982)
These priorities have been adopted in light of a published housing
survey reported in the Journal of Housing which indicated;
"that in 1978, more than 13 percent of all households and 20 percent of renter households lived in deficient housing, and that neighborhood conditions were significantly worse in 1979 than in 1973 ..." (Journal of Housing, Sept./Oct., 1983, P. 136)
In assessing the administration's overall record in housing and community development the article concluded that;
"the administration has undertaken no positive initiatives to respond to the critical housing and community development needs of the 1980s." (Journal of Housing, Sept./Oct., 1983, P. 133)
While the Reagan administration may seem to be a likely goat to carry the past sins of a costly and disappointing housing agenda, it is not that simple. Regardless of demonstrated need, the American experience with subsidized housing didn't begin with the Reagan administration. Because of fundamental fiscal and value weakness, the subsequent housing program initiated in the 1930's was "effectively if not deliberately designed to fail." (Journal of Housing, May/June, 1983, P. 75) Past justification for publicly assisted housing while claiming to increase employment opportunities and reduce crime and blight was no more than rhetorical commitment and had nothing to do with the intrinsic value of housing human life. Rather, its more perverse effect was to subsidize the producer. (Journal of Housing, May/June, 1983, PP. 74-75)
So the gap widens between rising costs of housing and the number of people able to purchase that housing. It is evident that that gap has widened beyond those resources that government is willing or interested to allocate. Without an alternative we have only the option of watching the gap widen allowing current
choices to be dictated by past decisions.
"As real per capita income in the United States has risen to ever higher levels, the percentage of families able to meet monthly payments on the average new single-family home has decreased substantially. It is generally agreed that fewer than 30 percent of American families can presently meet the minimum financial requirements to buy a median-priced new home. This significant increase in housing costs has created a market for lower-cost single-family housing produced by methods different from those of conventional construction." (Bernhardt, 1980, P. 135)
A successful alternative must not only provide for this market, but be affordable and less vulnerable to shifts in administrative policy.
CHAPTER I: MOBILE HOME ALTERNATIVE
I have selected the mobile home industry as a solid alternative because of its ability and proven track record to produce, with only private initiative, lower-cost, high quality shelter. The mobile home industry represents the least understood component of the building industry. Perceptions of today's industry, and therefore its acceptance as an alternative, have been influenced heavily by negative images of its early history. As a result, the mobile home industry really is an old policy issue which has not been vigorously explored as an innovative
mechanism to reduce the production costs of housing. This paper is an attempt to provide a more meaningful appraisal of the mobile home industry.
The mobile home industry relying totally on private initiative, represents the most successful paradigm in the industrialization of building in any country with a market economy. (Bernhardt, 1980, P. 205) The fact that the mobile home industry has come so far without reliance upon the government indicates that the industry recognized what the policy makers
"Subsidization results in the diversion of resources from other chronically underfunded areas of high national priority such as health welfare, environmental quality, education one must continue as long as there is a need for increased production. Subsidization in this form fails to provide incentives for the sector to improve it responsiveness to the needs and desires of the consuming population or to reduce the cost of production of shelter." (Bernhardt, 1980, P. 5)
This factor in and of itself sets apart this alternative from all the rest. Decreased production costs, when reflected as price
reductions enable consumers to purchase more shelter within a given price range. "This approach may not only decrease the need for diversion of resources but can and should encourage the sector to improve its social and economic performance." (Williams, 1974,
Mobile homes, as a lower cost housing alternative, have been around long enough to become a cliche. While mobile homes have been a regulatory concern for some time in a rural setting, there has been little transferability from the rural to the urban context. Most people continue to associate a mobile home with a number of problems related to its image making it a disfavored form of development in established communities. (Jaffee, 1983, P. 4) Public opinion has developed from images of trailer coaches and their haphazard environments which were typical of the
industry's early history. Today, many examples can still be found grand-fathered into the landscapes as well as the minds of
citizens and policy makers. As a result,
"segregated mobile homes are treated with all the sensitivity reserved for such land uses as mental hospitals, prisons, and sewage treatment plants publicly useful but but not what people want to confront on a daily ba,sis." (Jaffe,
Haphazard placemental mobile homes in the past has re-
enforced anti-mobile home zoning attitudes which-in turn results in out right exclusion or restriction of new mobile homes to undesireable areas. (Mandelker, 1982, PP. 106-107) Once in place, this cycle is difficult to break. Outdated safety and esthetic concerns resurrected from an inauspicious past continue to reinforce artifical barriers, and unreasonable restrictions upon
current mobile home technologies. "Restriction and even exclusion
bile homes remains a 'commonplace' device used to protect
health, safety and welfare." (Williams, 1974> P. 490) The present regulatory environment and the economics of competing uses tend to re-enforce this anti-mobile home cycle and relegate that use to the most marginal quality of land. (Bernhardt, 1980, P.345) The
industry despite an unsupportive regulatory
environment and negative public attitudes, has captured a
significant share of the housing stock in the United States.
A Market Reality
Current technologies and manufacturing standards are producing homes that are affordable and have tenure. Demographic and industry data show mobile homes as a market reality. "In 1980 mobile homes comprised 29% of single-family housing in the United States." (Jaffe, 1983, P.4) Part of the reason for this demand is depicted in Figure I.
Cost Comparison of Mobile Homes and Site Built Homes
Dollars / Square Foot
Sit*-Built Home* (1)
24.75 test >
Mobile Homes (2)
1 Price o*i nun foot. site-buiH hornet Mdwdinf tond firmthing* end apohencet (U S 0ennui i of Commerce lureeu of me Corteut Conduction Repont Senee C25)
1 f.O fee wry free o* eo -ere toot moOn kow nrciuoinp t*no r*------(PMHi Niwmi fc*vyt 1*M ID ir73 1*7* end 1*77).
On a ei hous f ac incl Janu $18.
Source: (Building Tommorrow, Bernhardt, P. 143)
square foot basis the figure compares cost increase over an year period. The cost per square foot for site built ing is exclusive of land, furnishings, and appliances. The tory price per quare foot for mobile homes exclude land but ude furnishings, and appliances. (Manufactured Housing Dealer, ary, 1980) By 1980 the average manufactured home had risen to 95 per square foot while the site built home had increased to
$44.00 per square foot. (Manufactured Housing Dealer, December 1981) Figure 2 shows that percentage of the new home market that the mobile home industry captured between 1969 and 1977. The mobile home market increasingly dominates a greater share of that new home market under $30,000,
Percent Mobile Home Share of New Home Market
1965 1970 1971 1972 1973 167* 1976 1976 1977
Source: (Building Tommorrow, Bernhardt, P. 201)
Today's mobile home industry is producing homes which are far superior to the uninspired versions of the past. Since 1975 mobile homes have been built in accordance to federally mandated building codes which have improved the homes safety, quality and
durability. Mobile homes are often built homes as they come with gabled roofs, stained siding, generous floor space and all the options found in site built housing. (The Denver Post, September 11, 1982) These improvements in the industry have extended the economic life of the homes significantly. "The economic life of the new mobile home equals that of a site built home if equally well maintained." (Bernhardt, 1980, P. 194-)
Given the advancements in current construction technologies and production standards achieved in the industry, it becomes important to ask why, "manufactured home sales are not rising at a rate consistent with the increasing cost barriers in the conventional housing market." (Foremost Insurance Company, 1982, P. 2) Part of that answer lies in the fact that despite changes in the industry, its regulatory environment has remained fundamentally the same. There exists no substantial relationship between land use regulations and the industry. Enactments of police power which exclude or severely restrict current mobile home technologies justified solely on an obsolete relationship to the public interest is an invalid use of that power. Discriminatory land use regulations continue to perpetuate themselves around outdated issues of aesthetics, depressed property values, low income transient nature of residents, and revenue generation issues. (Bernhardt, 1980, P. 331)
Public regulations lacking a substantial relationship to what is spppose to be regulated not only lacks the ability, to promote a genuine public interest, but handicaps the performance of the mobile home industry. One effect of restrictive land use controls
is tjhat they limit the supply of land available for the location of mobile homes. Consumers will not buy homes if there are no spaces avilable in an acceptable location at an acceptable price. Dealers unable to sell their homes will be limited as to the number of orders they can place with the manufacturer. Waiting lists of three years for space is common in areas with highly restrictive zoning practices. (Bernhardt, 1980, P. 34-4-) Overly restrictive land use regulations affect the mobile home industry in a second way.
In the past, all mobile homes were thought to depreciate in value regardless of location or size of the home. However, today mobile homes are appreciating in value at an increasing rate. While location, size and condition of the home are still important factors, there are two principle reasons why mobile homes are now appreciating in value. The first reason is one of demand. As the cost of conventional housing increases beyond affordability, there is an increased demand for affordable quality housing. Associated with this demand is the increased livability that current technology and construction standards have provided the mobile home resident. In a 1979 national survey which canvassed 8,000 mobile home residents, 59% responded as being very satisfied with mobile home living. (Foremost Insurance Co., 1979) The second reasdn is related to the relative value of used homes in relation
to th e increasing cost of new mobile home. This principle says,
"when the cost of a new article rises significantly each year,
then the value of the used article stays constant or moves
upward." (Manufactured Housing Dealer, January 1980) Taken as an
Table 1 shows that between 1968 ($6,000)
of a constant rate.
the average value of mobile homes and 1979 ($18,40) increased at
NATIONWIDE MOBILE HOME SHIPMENTS & VALUES
War Shipped Value
1979 250.000 $18,400
1978 274.900 10.900
1977 205.145 15.199
197ft 246,120 12,744
1975 212.90 11.438
1974 :$29..100 9.759
197:1 500.920 7.772
1972 575.940 0.950
1971 490.570 6.040
1970 401.190 6.110
199 412.090 0.050
198 317.950 0.000
The r that
Source: (Manufactured Housing Dealer, January 1984) ate of that increase is shown in Figure 3, in comparison to rate of increase experienced in site built construction.
Actual Home Values
VALUE (000) 0 so 40 $ SO 20 10 A
Ne> r Site Built
xlttlnc Site Built
1 lew M >blle Home *
-- 1ZZ Extatln ] Mob le Ho
1968 69 70 71 72 73 74 75 76 77 78 79 80 YEAR
Source (Manufactured Houalng Dealer, December 1Q81)
While values have increased steadily for new mobile homes
nationwide, the rate of appreciation on used homes varies considerably with the regulatory environment of each state. In those states with a favorable regulatory environment, homes are appreciating at a faster rate. Mobile homes in California, regardless of their size, are appreciating at the high rate of 10% to 15%. In states with a poor regulatory environment, mobile homes continue to depreciate. Availability of park space, which is directly controlled by zoning laws, is an important factor in determining the value of mobile homes. (Manufactured Housing Dealer, January 1980)
Planning rhetoric on affordable housing alternatives which stops short of giving the mobile home industry a more meaningful appraisal, becomes no more than a knee jerk reaction in lieu of any concrete action. "If mobile homes are to a viable alternative, planners will have to revise some of their pre-conceptions about the product under current technologies and standards." (Jaffe, 1983, P. 4) Old attitudes and assumptions that could be tolerated as long as housing was affordable, become indictments upon the planning profession as long as they are maintained. Planners need to drop their decommissioned notions and politically convenient answers and begin to understand what constitutes a reasonable use of police power in relation to a strong and viable alternative.
The following chapter identifies the appropriate starting ^.point for such a discussion i.e. the relationship of the police power to the public interest. The police power is not an absolute power and therefore must be enacted under prescribed limitations.
Often! the courts, through the process of judicial review,
requi ed to make a determination as to where those lii mits begin and
end. A maj or factor in the court! 1s opinion, particularly in
mobil e home case law, is its attitude toward th e objects or
actions which are being regulated.
CHAPTER II: JUDICIAL REVIEW: CHANGING ATTITUDES
Local governments have delegated power to adopt and enforce zoning regulations. Such delegated power is generally modeled after Standard State Zoning Enabling Act which was upheld in Euclid v. Ambler. Under the police power, municipalities may legally exercise comprehensive planning and the necessary land use controls for the purpose of avoiding haphazard development and protecting the publics' health, safety and welfare. Zoning, principal among land use controls, divides the jurisdiction into districts, regulating the allowed uses, relationship of building size to land, height and intensity of development. (Rose, 1980, P. 5 4)
By definition, land use controls can not provide some formal and mechanical equity between competing land uses. The essence of such controls is one of differential treatment. The only way to provide a sense of equal treatment is through the use of a planning analysis. (Williams, 1974, P. 5) "American land use controls to work effectively and fairly must be based on a overall understanding of the needs for land in the community." (Williams, 1974, P 2) Such understanding comes from a knowledge of the constraints and opportunities within a community which will affect long term growth and development. Such an analysis requires that the planner utilize a number of methods from the disciplines of geography, economics, sociology, architecture and law. While law is not a panacea or a magic wand, it is an important planning tool. (Rose, 1980, P. 1)
Since Village of Euclid V. Ambler Realty Co. (1926), the
inception of Euclidian Zoning doctrine, the police power has become an instrument of land use planning. At a time when there
is an apparent lack of legislative direction regarding mobile homes the courts will be handling major policy questions for which most judges have no special expertise. (Rose, Rothman, 1977, PP. 96-97)
The planning profession has been directed in its development through changes in judicial attitudes regarding what enactments of the police power promote or harm the general welfare. The police power is not an absolute power. It is limited in its ability to function as a planning tool. Those limitations are often prescribed through the process of judicial review where the courts define that line between a legitimate and an illegitimate use of power. Defining the lay of that line is difficult because it changes position from time to time as a result of changing social and economic conditions in our society. In writing the majority opinion for an undivided court in Euclid v. Ambler, Justice Sutherland stated; "the line which separates the legitmate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstance and conditions." (Williams, 1974, P- 455)
is therefore important to underscore the importance for to understand the framework of judicial review and how in judicial attitudes wil have a corresponding affect on policy. This principle is especially true for mobile
"The most important element in the law of mobile homes is the attitude of the courts toward such homes. Nowhere else in
American planning law is the dominating role of this factor quite so apparent as it is in connection with mobile home." (Williams, 1974, P. 456)
The court's attitude towards mobile homes has been based upon somewhat of a standard list of problems or potential problems. Among those that are most frequently cited are as follows:
1. Health and sanitation problems.
2. High density development.
3. Aesthetic shortcomings.
4* Transient character of occupants.
5. Tax base issues.
(Williams, 1974, PP. 456-457)
This most frequently cited list of problems have been, and to the extent that they continue to be upheld constitutionally are justified for public regulation of mobile homes. A review of mobile home case law in Chapter III reveals that the issue at hand is one or a combination of these problems.
It is interesting to follow the process of judicial review through mobile home case law. The process can involve two courts, perhaps even in the same state, can write two totally different opinions given similar issues, conditions and times.
There is a direct relationship between having a effective planning program and understanding the process of judicial review. Having a greater awareness of those factors which limit judicial review as a planning tool will yield a planning agenda that is
likely to be upheld constitutionally. The ability of the system to implement a planning agenda is limited by sophical, historical, and constitutional constraints. (Rose, P. 1 )
The philosophy of law is concerned with societal values and relationship between law and the individual. Such ionships do frequently limit the effectiveness of law as an ument of urban planning. The issue of whether laws of
society enhance freedom or whether they overly restrict it raises
the relationship between certainty of the law and human freedom.
"When law is definite and certain, freedom may be enhanced within the precise boundaries created by the law. On the other hand, the law may be very clear and certain but be so restrictive that freedom is unfairly limited or severely restricted." (Rose, 1980, P. 1)
When law is clear and certain and freedom's enhanced planning
may implement innovative programs which utilize the full range of
opportunities created by the law. The doctrine of Anglo-American
law imposes an obligation on courts to be guided by consistency,
prior rules or precedents. When deciding matters of a similar
nature, the courts must follow previously established rules unless
termination is made that social, political or economic
tions have changed The difficult ed enough to warrant lished rules. (Rose, New Jersey Supreme
sufficiently to alter the established question becomes when the conditions modification or rejection of previously 1980, P. 1) Justice Fredrick Hall, the Court Justice, captures those essential
standards from which the process of judicial review should be conducted.
"Proper judicial review can be nothing less than an objective, realistic consideration of the setting. The evils or conditions sought to be remedied. A full and comparative appraisal of the public interest over the private rights affected, both from the local and broader aspects, and a thorough weighing of all factors. The government seems to
be entitled to win if the scales are, at lease, balanced or even a little less so." (Wright, Gitelman, 1982, P. 890)
Justice Hall continues to focus on the proper role of judicial review as he speaks his convictions.
"Judges must evaluate and protect all interests, including those of individuals and minorities regardless of personal likes or views of wisdom, and not merely to rubber stamp governmental action in a kind of judicial laisser-faire." (Wright, Gitelman, 1982, P. 890)
In addition to the philosophical contraints, the ability of law to function as a planning tool has been affected or limited by historical constraints.
Knowledge of the historical development of law is useful to planners because the origin of all land use regulations were shaped by historical events. Understanding how legal doctrines evolved acts to cement planning theory to practical application. In addition, understanding the historical origin and nature of the broad police power shapes the application of that power. It is important that citizens understand that this power is not applied in an arbitrary or capricious manner by the courts. Rather, that such application is one of consistency and reasonableness. If a particular enactment of that power is challenged and show to be unreasonable, judicial review acts to change past rules no longer appropriate. (Rose, 1980, P. 53)
Stages of Land Use Law
Historically, it is possible to track stages through which land use law has moved as a result of changing attitudes of the
econo the c 1982, have state
mic conditions. These stages are especially reflective of ranges in judicial structures at the state level. (Mandelker, P. 13) Major initiatives for changes in mobile home laws arisen more often within those judicial structures at the level, than from most state legislatures. (Rose, Rothman,
1977, P. 79)
The United States Supreme Court initiated the : irst st
land use law in 1926 with its decision in Euclid V Ambler
decis ion upheld the constitutionality of zoning as a
exer c ise of the police power. An important result }f the
decis const as it
ion was that it gave land use regulations the presumptions of itutionality. This is an important concept to land use law means,
"that the party attacking a land use regulation has the burden to prove the regulation is unconstitutional and that a court will accept the policy expressed by the regulation unless it is shown to be clearly unreasonable." (Mandelker, 1982, P. 10)
to u court there as ap
A characteristic of the second stage is that the courts began se a two-tiered approach to land use problems. While the s continue to uphold and are favorably receptive to zoning is more discretion used in reviewing the validity of zoning plied to individual properties. (Mandelker, 1982, P. 13)
jDepending on sources, the next and most judicially assertive stage began in the decade of the mid-1960's to the mid-1970's. The courts began to address socio-economic issues in this stage as noted from the dramatic expansion of anti-exclusionary opinions that came down. (Rose, Rothman 1977, P. 80)
Exclusionary zoning is in effect suburban zoning which excludes low and moderate income groups as well as racial minorities. Techniques which have an exclusionary effect would be large lot zoning, multi-family dwelling prohibitions, bedroom restrictions, minimum floor space requirements and of course mobile home prohibitions. (Rose, 1980, P. 179) Residential development under such a regime is usually limited to only singlefamily dwellings at low densities.
Attacks on exclusionary zoning in the federal courts have concentrated on racial exclusions as being in violations of the Federal Fair Housing Act. Litigation at the state level has concentrated primarily on the exclusion of low and moderate income groups. (Mandelker, 1982, PP. 201-202) Significant to note has
been the change over the last ten years in the court's attitude toward the basis of zoning and the policies of local governments. The courts have moved from a posture of discretion in the second stage to outright skepticism in the third.
"An underlying skeptical attitude as to what local governments are doing is apparent in both the increasing
importance of the comprehensive plan as a basis of zoning, and tightening of the criteria for granting variances." (Rose, Rothman, 1977, P. 80)
The courts have recognized that an essential role of their
see t gener
judicial function is, "to watch over the parochial and exclusionist attitudes and policies of local governments, and to o it that these do not run counter to national policy and 1 welfare." (Wright, Gitleman, 1982, P. 889) lln more recent case law, courts rather than upholding the presumption of constitutionality, are reversing that presumption in cases dealing with exclusionary zoning. A reversal places the burden of proof on the local government to justify its own land use regulations. While the historical development of land use law provides many contrasts there is not one as important to the planning profession as the reality that the courts have continued
to ga in substantial
1982, P. u)
So far the d
judic ial review and
So far the discussion has talked about the process of :ial review and its significance to the planning profession. Philojsophical and historical constraints are significant in their ability to effect important shifts in judicial attitudes. An understanding of these basics will hopefully enhance interest and provide something of a benchmark in Chapter III which is a review of mobile home case law. However the discussion is not complete without consideration of a third constitutional
constraint. Having some knowledge of constitutional limits may enable planners to anticipate and thus avoid the risk of having a planning program's constitutionality challenged. (Rose, 1980, PP, 7-8)
The United States constitution embodies those fundamental
principles and values that are the very foundations of our legal system.
'American constitutional law represents a codification and institutionalization of the primary values of a democratic society-- equality of opportunity and equality of treatment, freedom of thought, considerable freedom of action and fairness. Under the American system a more or less independent mechanism of judicial review is established to provide an independent check on whether specific government decisions conform to these standards. (Wright, Gitelman, 1982, P. 889)
When those governmental decisions involve issues of zoning there are three constitutional tests which are imposed. Those tests
scope of police power and the public welfare, process or the issue of taking.
equal protection clause of the Fourteenth Amendment.
(Rose, 1980, PP. 75-76)
Local governments have no inherint power to adopt land use regulations except as delegated by the legislature. Therefore, when towns or cities act to adopt a zoning ordinance the community is excercising the state's police power. To be a legal use of that power, the action must advance or promote the general welfare. (Rose, 1980, P. 217) The concept of the general welfare is not defined only within the context of a narrow interest. The general welfare transcends both the artifical limits of political subdivisions and narrow local desires. (Wright, Gitelman, 1982, P. 890)
Characteristic of this test reflect current social conditions.
is its ability to change and Because of this expansive
interpretation, it is difficult to determine when the action goes
beyon In th the c
d the limits of its e Euclid decision the oncept of the general
power to regulate. (Rose, 1980, P. 217) court was deliberate in clarifying that welfare was not second class to the
narrow interests of a
municipality when it
"It is not meant by this, however, to exclude the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the
municipality would not be allowed to stand in the way." (Wright, Gitelman, 1982, P. 891)
constitutional test is concerned with the
means to an
end. If the method selected to accomplish the objectives is unreasonable or harsh it is said to be in violation of the
iples of due process
(Rose, 1980, P. 76)
test proce takin obj ec impor
The constitution subjects all police power regulations to a of due process. Rather than using the magic phrase of "due ss of law" some opinions will instead use, "constitutes a g of property", "unreasonable", or "no realtionship to the tives to achieved". (Rose, 1980, P. 39) Due process is an tant test frequently encountered by planners.
"The due process clause is the most important, pervasive and frequently encountered constitutional principle that planners must understand. The due process clause imposes significant limitations on the law as an instrument of urban planning. It is this principle, more often than any other in 'the constitution' that prescribes the limits of the
ability of government to provide for the general welfare to
the public." (Rose, 1980, P. 32)
A zoning ordinance may be within the
scope of its legislative
authority and at the same time be in violation of due process if
it u (Rose
ses unreasonable means to achieve an Rothman, 1977, PP. 47-48)
The due process test has two parts; $s; and 2) substantive due process.
1) procedural due
Procedural due process requires that before a person is deprived of life, liberty, or property there must be opportunity to be heard and defend against the proposed action. (Rose, 1980, P. 33) Because procedural due process applies to administrative rather than legislative decisions, it is not applicable to the formation and use of zoning regulations. (Mandelkerm, 1982, PP. 39-40)
"Procedural due process is more elemental and less flexible than substantive due process. It yields less to the times, varies less with conditions, and defers much less to
legislative judgement." (Rose, 1980, P. 40)
Substantive due process protects a property owner from legislative enactments which use unreasonable, arbitrary or cupricious means to take the property. (Rose, 1980, P. 33) Courts are using this test when they balance public purpose against private lost to determine whether a taking has occurred. (Mandelker, 1982, PP. 36-37) The following is pertinent for its ability to demonstrate the inter-relationship between these as components of an important constitutional constraint.
"In 1952, the United states Supreme Court upheld the validity of 'preventive detention' of enemy aliens during the Second World War. Justice Jackson agreed that the detention of an alien would not be inconsistent with substantive due process but dissented on the grounds that the alien was entitled to, but did not receive, procedural due process. If it be conceded that in some way this alien could be confined, does it matter what the procedure is? Only the untaught layman or charlatan lawyer can answer that procedures matter not.
Procedural fairness and regularity are of the indispenseable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well perfer to live under Soviet substantive law applied in good faith by our common law procedures than under our substantive law enforced by Soviet procedural practices. Let it not be over looked that due process of law is not for the sole benefit of an accused. It is the best insurance for the government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration." (Rose, 1980, PP. 40-4-1 )
The third constitutional test does not appear in the original constitution.
The equal protection clause appears in the Fourteenth Amendment to the Federal Constitution. There are two requirements underwhich this principle can be invoked. The Fourteenth Amendment states;
1. No law may unduly favor one group over another.
No law may impose a hostile discrimination on any particular group.
(Rose, 1980, PP. 42, 76)
univer mandat requir situat
n important constitutional protection, it does not apply sally to all persons and groups. The requirements do not e that government treat all persons identically. "It es only that differences in treatment of persons similarly ed be justified by an appropriate state interest." (Rose,
1980, P. 218) Equal protection challenges are quite common and are resolved through the courts by one of two separate tests.
The first test is based on the classification of land or persons and whether or not there is a rational basis for such classifications. (Rose, 1980, P. 4-2) If a classification is subjected to a hostile discrimination, or is given unfair advantage, the equal protection clause is invoked. (Rose, Rothman, 1977, P.48) The second test is one which required the court to pursue a much more in depth investigation. The test of strict scrutiny is applied only in cases involving;
1. a fundamental interest such as the right to vote,
2. a suspect classification (Rose, 1980, PP. 4.2, 4.8)
A classification based upon race is suspect, but wealth is not. For rights to be considered "fundamental" they must be expressly guaranteed or clearly implied in the constitution. For example, the right to vote or the right to a trail are considered fundamental, but the right to adequate shelter is not. "The Supreme Court has expressly rejected the contention that housing is a fundamental right, protected by the Fourteenth Amendment." (Rose, 1980, P. 218) When tested against the traditional
standards, an exclusionary zoning ordinance which deprives poor people the opportunity to secure adequate shelter has been determined not to violate the equal protection clause.(Rose, Rothman, 1977, P. 48)
The intent of this Chapter is to provide the reader with insight to those doctrines of our legal system and the constraints they impose on law as an instrument of planning. Perhaps these doctrines are often taken for granted out of familiarity. Yet,
the inter-relationships pose hard and complex questions. Many questions being well beyond the capabilities of this writer to address. Yet sometimes raising the right questions can provide more insight than just being filled with more facts.
One question which the reader should keep in mind through the next chapter on mobile home case law is actually an assumption that was conceived out of and matured within the context of Euclidian zoning. In effect the Euclid decision upheld the creation and maintenance of residential neighborhoods. The single family zone district was to be the esteemed birth place of an American dream and should be guarded against all intrusions. Mobile homes were largely viewed as such, being a shoddy and unattractive departure from conventional housing. However valid that assumption was with regard to the early history of the mobile home, history must be questioned for its effect on today's housing consumer and the mobile home industry. "Public regulation determines and is largely responsible for the nature and character of the mobile home industry and its products." (Bernhardt, 1980, P. 352) Land use controls designed initially to regulate mobile homes under the nusiance doctorine continue to perpetrate a regulatory environment which only reinforces the problem it was meant to resolve. Outdated regulations have effectively prohibited market expansion and handicapped the ability of the industry to be more responsive to the consumer. (Bernhardt, 1980, P. 35^)
CHAPTER III: A REVIEW OF CASE LAW IN RELATION TO METHODS OF MOBILE HOME REGULATIONS.
Judicial attitudes vary from state to state. While the volume of mobile home litigation is large, leading decisions seem to be concentrated in their origins to states like Michigan, Illinois and New Jersey,
Classification of states as to whether they are considered to be fayorable or unfavorable toward the exercise of zoning can be can be misleading. Such characterization often assumes a court to be pro-zoning if it generally upholds a municipality against constitutional attacks by the developer or citizen. What the assumption does not take into account is the possibility that a zoning action which upholds a municipal ordinance may continue to restrict mobile home residents to areas unsuited for residential use. As an example New Jersey is usually considered to be prozoning. Prior to the Mt. Laurel decision, New Jersey provided the lead in developing exclusionary doctrines. (Mandelker, 1982,
While judicial attitudes do vary, one undeniable trend prevades the majority of mobile home case law.
"A rather hostile attitude thus pervades the case law, although the forms of expression vary ranging from opinions which simply note the existence of problems justifying regulation, all the way to elaborate discussions of the disadvantages of mobile homes for a community and the seriousness of the resulting problems." (Williams, 1974., PP. 456-457)
The bulk of mobile home case law focuses on an initial request for either a rezoning or a conditional use permit. (Jaffe, 1983, PP- 3-5)
Typically, zoning ordinances divide uses into those allowed by right and those requiring a use by permit or a conditional use. If there exists doubts about a use, or if the jurisdiction has not made up its mind what standards should apply, the request moves from a use by right to a use by permit. (Bair, 1981, P.5) In those actions involving a rezoning, courts typically examine, on a case by case basis, the nature of proposed use, the character of the surrounding area, and the effect of the proposed use of the adjacent properties. (Jaffe, 1983, P.5) Many communities permit mobile homes and mobile home parks, if at all, only by special permit or variance. (Williams, 1974., P.5)
A conditional use or a use by permit requires a trip to the board of adjustment for the applicant. The board of adjusment, after hearing the particular facts, makes a determination as to whether or not a use by permit is warranted, and if so what conditions and safeguards will be attached. (Bair, 1981, P.5) This zoning technique allows "the community to retain the opportunity to review proposed uses on the basis of locally adopted standards in terms of location, design, layout, and impacts." (P.A.S. Memo, June, 1981) Approval or denial of a use by permit should be based on considerations of how the proposed use will relate to existing physical development and its potential allignment to future development in the area. Most importantly a decision to approve a use by permit should be an affirmation that the general welfare of the community will be served. (Smith, 1970, P. 93)
jA variance is a mechanism which provides relief of a zoning
ordinance so that the applicant may not be subjected to
unnecessary hardship. The term 'hardship' can often be misused by
being sold as something it really is not. A legitimate request
for a variance can not result from a self-created consequence, or
be based in speculation for profit. A true hardship results if an
individual, due to circumstances beyond his or her control, under
strict application of the zoning ordiance, will not receive the
same rights as others unless relief is granted from the board of
adjustment. (Smith, 1970, PP. 98-99)
The following quote provides a good explanation on the
difference between the special use permit and a variance.
"The decisive difference between special permits and
variances is that a variance is an authority extended to a property owner to use his property in a manner forbidden by the zoning enactment while a (special) exception allows him to put his property to a use the enactment expressly permits." (P.A.S. Memo, June 1981)
These zoning techniques provides the local jurisdiction greater
local control over land uses which may be unique or carry with
them potential locational impacts. (P.A.S. Memo, June 1980)
These techniques have commonly been used to regulate mobile
homes. While these techniques have provided the local
jurisdiction greater flexibility and control, such control has
often been excessive. Those courts striking down mobile home
restrictions as an unreasonable use of the police power, reject
the nbtion that mobile homes present special problems requiring
more purdensome regulations. (Mandelker, 1982, PP. 106-107)
The following case law has been organized into four
categories. Each category being framed by a question. Rather
than just lumping all the case law together randomly, the question format was used in an attempt to determine the different motivations behind the exclusion or restriction. The three questions are as follows:
1. Does a mobile home fit the provisions of a single-family dwelling?
2. If the mobile home is not defined as a single-family dwelling, can the community exclude it?
3. If the mobile homes must be allowed, can they be restricted solely to mobile home parks?
(Jaffe, 1983, P. 6)
Clearly these three questions do not have three universally true answers. What these questions do provide is a systematic way of reviewing mobile home case law. These questions really frame more than a means of organization. More fundamentally these questions frame the three methods used in excluding mobile homes from residential areas.
"An ordinance may expressly exclude mobile homes from residential districts; an ordinance may permit mobile homes only in non-residential areas; or an ordinance providing for only dwellings or residences can be interpreted as barring mobile homes. (Bernhardt, 1980, P. 334-)
In reviewing case law pertinent to each of the three questions,
the reader should keep a mental checklist of those problems used
as justification for the public regulation of mobile homes.
Discussion of the process of judicial review revealed a dynamic,
changing process. The factors which influence the relationship
between the police power and the public welfare change continually
whil^ the grounds for challenging mobile home development do not.
Question I: Does a mobile home fit the provisions of a singlefamily dwelling?
The question raised involves issues of semantics and interpretations. Depending on judicial attitudes and the extent to which regulatory terms are logically related to the regulatory purposes two identical mobile homes may become two totally different objects under law. If the mobile home is defined and accordingly regulated as a single-family dwelling, then it becomes exempt from mobile home standards and is subjected to those zoning standards applicable to a dwelling allowed as a use by right in the appropriate residential district. (Jaffe, 1983, P. 6) The definitional ambiguity could be avoided by using more precise and detailed regulations in the text of a zoning ordinance.
(Williams, 1974, PP. 514-515) Commonly single-family uses are restricted to residential dwellings. Without precise wording as to what constitutes a residential dwelling, the zoning ordinance becomes an open door to litigation. In default of such
legislative initiative the courts will continue to resolve whether or not a particular mobile home fits within the constraints of a dwelling. (Mandelker, 1982, P. 107)
The courts have addressed this definitional issue in two
1. Whether a mobile home can properly be placed into a subdivision controlled by anti-trailer covenant restrictions,
2. Whether a mobile home fits the definition of a dwelling under the zoning ordinance.
(Jaffe, 1983, P. 6)
Covenant Restrictions The broad nature of covenants often leave the courts considerable room for interpretation. Restrictive covenant provisions
in tjie master deed declaration often prohibit "trailers" or "temporary structures". Court decisions are often split as to whether the intent of such provisions apply to mobile homes. The outcome of decisions depend on the type of mobile home proposed, whether it will be permanently sited and be consistent with aesthetic intent of the convenant. (Jaffe, 1983, P. 6)
A Montana Supreme Court ruling in Timmerman v. Gabriel (1970) prohibited a double-wide mobile home because the court ruled that it did not meet the requirements of a single family dwelling.
In McBrided v. Behrman (1971) an Ohio trial court ruled that mobile homes were to be included under a restrictive covenant provision. The court stated that placing a mobile home on a lot in a particular subdivision would not be consistent with the aesthetic purpose of the restriction. (Jaffe, 1983, P. 6)
An appeals court in the State of Illinois made a very broad interpretation in Moore v. McDaniels (1977). The opinion held that all types of manufactured housing, modular and double-wide mobile homes alike, were in violation of an anti-trailer restriction.
"The court found that the restrictive covenant did not deprive the land owners of a "right to shelter" since he had notice of the restriction when he bought the lot." (Jaffe, 1983, P. 6)
Because the developer of a particular subdivision is generally the only party to the agreements contained within the master declaration of covenants and restrictions when it is recorded, such instrument does not become binding until the first lot is sold.
"These agreements do not become binding upon him [the developer] or upon the land until another party to them is
supplied. When he sells the first lot and makes the declaration of a part of the deed conveyance, the covenants and restrictions expressed in the declaration attach to the lot sold and become binding upon the purchaser, and they will, subject to further discussion of this point, run with the land against all subsequent purchasers who take title to the lot with notice of covenants and restrictions. Since the covenants and restrictions are recorded, the law presumes that subsequent purchasers have notice." (Ellickson, Tarlock, P. 627)
Courts more sympathetic in their interpretation of restrictive covenants have held that the mobile home specific to the case was not inconsistent with the intent of the covenant.
In White v. Watford (1977) the Georgia Supreme Court ruled thay a mobile home did not violate a restriction prohibiting the erection of structures of less than 800 square feet in the subdivision. Because the mobile home was not affixed to realty via permanent foundation, there was no "erection" involved.
In Hussey v. Ray (1979), a Texas court ruled that a covenant restriction prohibiting trailers and temporary structures should not prohibit mobile homes as long as they were placed on a foundation and contained the same amenities as surrounding site-built homes. Further discussion in the case suggested that aesthetic concerns were of no major consequence being that surrounding land uses consisted of an oil storage tank and small houses. (Jaffe, 1983, P.7)
Where a text does not expressly exclude mobile homes, It may be ehsier for the courts to show that the actual legislative intent of the ordinance was to include mobile homes within the definition of a dwelling. An ordinance which does not distinguish
between mobile homes and site-built homes only implies that the community rejected the negative image of the older mobile homes. (Mandelker, 1982, P. 107) A more straight forward approach for communities that have a more inclusionary attitude regarding mobile homes is to expressly allow them as a use by right in designated zone districts. (Jaffe, 1983. P. 6) A variation of that approach is more likely to be the rule even in jurisdictions more sympathetic towards mobile homes.
An early decision in the town of Manchester, Mass. is Manchester v. Phillips (1962) is a leading decision upholding the philosophy of "once a mobile home always a mobile home". Showing some degree of hosility the court upheld the town's ordinance which excluded mobile homes under its definition of "dwelling". Because it was excluded as a dwelling, it was not allowed to be set on a permanent foundation. The court's decision
"adopted implicit equal protection analysis by holding that the town could limit mobile homes to areas where they would not injure the investment in conventional houses, hurt taxable values and impede town development." (Mandelker, 1982, P. 107)
The court confimed that the town may reasonably believe that a mobile home would be detrimental to property values of adjacent conventional homes, and would generally depreciate the amenities and appearance of a residential district. (Williams, 1974, P, 4-61)
Even though fifteen years had elapsed since Manchester, the Oregon Supreme Court's decision Clackamas County v. Dunham (1978) put to rest any doubt as to whether this philosophy was still intact. The majority found that installing a mobile home on a permanent foundation did not change its previous standing as a trailer since it was transported to the site. (Jaffe, 1983, P.7)
The mobile home specific to this case was a home with over 1,600 square feet, which was transported from the manufacturer to the site where it was secured to a permanent foundation. Having 1,600 square feet secured to a foundation still presented an object capable of mobility to the court as it noted, "the county's zoning ordinance defined a "trailer house" as a building designed in such a manner that it may be moved from one location to another." (Williams, Taylor, 1982. P. 92) The court's decision was that in fact the word "designed" in the text referred to an inherent mobility, not to a sense of permanence and tenure. The unequivocal final word from the courts' opinion was, "a building which left the manufacturer as a mobile home must be a mobile home forever." (Williams, Taylor 1982, P.93) One of the two dissenting justices held that the interpretation of the majority was inconsistent with a provision of the county's comprehensive plan. That provision being a policy to encourage the provision of low cost housing in general, and mobile homes in particular. The dissent was dismissed. The majority held that, "such considerations must be balanced against considerations of protection of property values and of aesthetic factors." (Williams, Taylor, 1982, P. 93) The court went on to note that the dissent raised an issue which was properly a legislative question with which the court should not interefere. A final footnote indicated that any exclusion of mobile homes from the county was based on a classification of wealth (of the purchasers) and not being a suspect classification would not raise an equal protection question in Oregon. (Williams, Taylor, 1982, PP. 92-93) Similar conclusions were reached in Indiana in Bowman v.
pple (1973) and in New York in Bogart v. Loodbum (1972).
The mobile home owner in the Bogart case installed the mobile home on a permanent foundation, installed a pitched roof as well as adding on attached accessory structures. Despite these extensive modifications the court ruled that the structure was a mobile home and that such uses were prohibited in residential zone districts.
"The critical factor in these cases is whether the unit is built on a chassis and is capable of being transported to a site, not whether it is firmly rooted to solid ground on a permanent foundation. "Mobility" is interpreted to mean 'possessing a chassis', not whether the unit can, in fact be moved after installation on a site." (Jaffee, 1983, P. 7)
A number of courts have made distinction, not only between mobile
homes and single-family dwellings but have distinguished modular
housing from mobile homes.
The modular/ mobile question raises the issue of 'mobility' for mobile homes. Decisions allowing modular housing to be placed on single-family residential lots recognized that placed on a foundation that structure is equivalent to site built housing. However, as noted in the Clackamas and Bogart decisions courts have often refused to extend this doctrine of transformation to mobile homes.
In Kyritsis v. Fenny (1971), a New York court, seeing that modular housing could provide cost effective, lower cost housing were not mobile homes. (Jaffe, 1983, P. 7) A similar decision was reached in Ott v. Johnson where an Indiana appeals court ruled that prefabricated modular housing was not a mobile home. The modular, once attached to a permanent foundation was declared to be in no way 'mobile' and could therefore be sited on an
individual residential lot. The Supreme Court of Maryland in
Chesapeake Estates Improvement Association v. Foster (1972) reached the same conclusion, that a modular sited on a permanent foundation was not a mobile home for zoning purposes. (Jaffe, 1983, P. 7)
"During the last few years [since 1981] or so there have been at least 17 opinions from higher courts as to whether a mobile home on its own foundation remains a mobile home. To a considerable extent, decisions hinged on how definitions were worded. Six held that, if set on a permanent foundation, a mobile home was to have all the rights and privleges of any other dwelling. Three held that a distinction might be made for regulatory purposes. Eight said the mobile home remains a mobile home. (Bair 1981, P. 3)
It is very important to recognize that these variations were not altogether differences of judicial opinion. More correctly these opinions represented the courts' interpretations of the definitions coming out of the zoning ordinance involved. It is important to understand that regulatory terms and definitions which are neither current or logically related to a regulatory purpose can have the same effect as an outright exclusion on mobile homes. Accurate and precise definitions are very important to the regulatory effectiveness of a zoning ordinance. (Bair 1981, PP. 2-3) Good definitions should provide the essentials without the unnecessary embellishment. Embellishment and extra wordsi may make something sound more official, yet such wording only increases the vulnerability of that section to a judicial challenge. The best definition is the simplest and one which fits the regulatory intent. As a rule definitions do not generally include regulatory standards. As a good example around the 1970's the Mobile Home Manufacturers Association defined their product as
a transportable structure which must exceed eight feet in width or
32 feet in length. Ten years later apparently a recreational vehicle, which is not subject to federal mobile home construction standards, which exceed 32 feet has now appeared on the market. (Bair, 1981, PP. 2-3)
Fredrick Bair, author of "Regulating Mobile Homes" offers the essentials;
"Manufactured Building -
1. Mass produced in a factory;
2. Designed and constructed for transportation to a site for installation and use when connected to required utilities;
3. Either an independent, individual building or a module for combination with other elements to form a building on the site.
Manufactured Housing -
A manfactured building or a portion of a building designed for long term residential use.
Mobile Home -
Manufactured housing built on a chassis."
(Bair, 1981, P. 3)
The federal building code for mobile homes, the National
Mobile Home Construction and Safety Standards as defined in the
Federal Register, May 13, 1976, reads;
"A structure, transportable in one or more sections, which when erected on site measure eight feet or more in width and designed to be used as a dwelling, with or without a permanent foundation, when connected to the required
utilities and includes the plumbing, heating, air conditioning, and electrical systems contained therein"
In th^ same issue of Federal Register, a recreational vehicle is
"A vehicle regardless of size, which is not designed to be Used as a permanent dwelling, and in which the plumbing, heating, air conditioning and electrical system contained therein may be operated without connection to outside utilities and which are self propelled or towed by a light duty vehicle." (Bernhardt, 1980, P. 387)
In response to a definition of mobiles which still alludes to mobility and restricts the industry's future capabilities the Project Mobile Home Industry (PMHI), a Boston based research group, developed an expanded definition. Not as much of a definition as it is characteristics of a definition would cover both today's mobile home as well as a benchmark for future applications. Those characteristics are as follows;
Designed for primary residential use, functionally equivalent to conventional housing, meeting the essence of basic housing codes.
2. Designed for use as a detached single family home or for assembly into a two family or multi-family structure.
3. Designed to be essentially completely factory produced and factory finished, including all major standard fixtures and appearances and, as an option, all furniture; leaving the factory ready for occupancy except for on-site hook up and set up.
4. Designed to withstand the stresses incurred in transportation from the factory to the dealer on site; designed to be transported via highways on its own wheels or detachable wheels, on flatbed, lowboy, or other trailers.
5. Designed to be ready for occupancy upon arrival at the site except for minor and incidental assembling operations; location on foundation supports or integration into site-built supporting structure.
6. Designed to meet or exceed the Federal Mobile Home Construction and Safety Standards, Title VI of the Housing and Community Development Act of 1974, which became effective June 15, 1976." (Bernhardt, 1980, PP. 373-374)
Question II: If the mobile home is not defined as a dwelling, can the community exclude it
By definition, the nature of land use regulat
ionary. Muncipalities, enabled by the state legis
ity, implement their comprehensive plan through a
of the police power. In accordance with the compre
ion is exclus-lature author-legal exercise hensive plan,
land | use controls may reasonably restrict particular uses to designated districts. Land uses are not allowed to locate in whatever location self interest would dictate. It is the unreasonable use of that same power and its effects which raise important questions for planners. The use of this power and its affects can never be thought to only apply to buildings and land. It is not possible to regulate land uses without having at least an indirect effect upon the users.
Regulations which set excessive minimums for floor space, and lot size will have a corresponding affect upon the economic communities social and economic makeup. Excluding or severely restricting mobile homes has been used as a zoning technique to regulate characteristics of the population such as age, marital statup, family size, and income. (Rose, 1980, P. 201)
Chapter II discussed the process of judicial review and its relevance to the planning profession and the public interest. Given the previous discussion on the doctrines of law and the theory of planning it is the following case law which acts to solidify the two into one limited but powerful expression. The most important case law related to the exclusion of mobile homes are tjiose which question the justification used in permitting or excluding such homes in the various zone districts. (Williams, 1974, PP. 471-472)
(The essence or common thread which relates the following cases; to one another is an attempt to discover that outer limit of the zoning power. Being the vary primer which initiates or gives rise to litigation that that common thread initiates questions as
to w hat actions may reasonably be exercised and what the proper
role of the court is in reviewing that exercise (Wright,
Gitel man, 1982, P. 889) Court opinions on the exclusion or
resto ration of mobile homes have been organized by the respective
Industrial and Manufacturing
Minnesota State ex rel. Berndt v. Iten (1960) This decision upheld the exclusion of residence from manufacturing districts, in a case where such a restriction was held to include a prohibition of mobile home parks. The reasons for exclusion were based upon references to safety hazards, especially for industrial development. The court also pointed out that the area in question has poor access being cut off from the community by a railroad and highway crossing.
In affirming, the Minnesota Supreme Court noted that safety was among the principal purposes of zoning. (Williams, 1974, P*
1962, park that court for i
Illinois Camboni1s Inc. v. County of DePage (1962) In an Illinois opinion upheld the exclusion of a mobile home in a manufacturing district. The court upheld on the grounds the park would be in the path of industrial expansion. The felt that it was appropriate to reserve the land exclusively ndustrial development, (williams, 1974, P. 484)
New Jersey Vickers v. Township Committee of Gloucester Town-(1962) The Gloucester Township of about twenty-three (23) e miles was, at the time of this action, a rapidly growing township, a short distance from Camden. The plaintiff had
purchased ten (10) acres in an industrial zone in which mobile home parks were a use by permit. The initial permit was denied based upon health department standards and an amended plan was submitted by the applicant. An amendment to the zoning ordinance was passed listing mobile home parks as an exclusion in industrial districts. (Wright, Gitelman, 1982, P. 888)
The trial court upheld the exclusion, which later was reversed by the appellate division, which said:
"Surely in this vast rural area, there must be some portion in which the operation of a trailer park would be compatible with the scheme of zoning the township has seen fit to select." (Wright, Gitelman, 1982, P. 888)
The New Jersey Supreme Court reversed again, finding the exclusion to be valid. The majority opinion talked in terms of the limited scope of judicial review, upholding the principal that it is not necessary for every zoning ordinance to provide a place for every use. The court reviewed the familiar problems
accompanying mobile home development. Specifically the higher density typical of mobile home parks. In more vague terms, the court upheld the exclusion based upon the need to attract new tax ratables and protect against blight. (Williams, 1974, PP. 493-
The majority opinion,in the Vickers case, is particularly important as it provided Justice Frederick Hall an opportunity to dissent, which is regarded as among the finest in modern zoning opinions. Justice Hall's dissent is matchless for its
"nnderstanding the relationship between legal docterines and basic social values and for its recognition of the problems confronting future potential residents." (Williams, 1974, P. 494)
The most imporatnt part of Hall's opinion was that, above all the rhetoric and vagueness of the majority opinion surfaced the
essential issue: The nature of judicial review.
Justice Hall strongly rejected what he saw as a very anemic consideration of values basic to democratic life and "judicial abdication in the face of exclusionary zoning." (Williams, 1974, P. 494) Justice Hall did make a statement to the effect that the request for a different type of housing may have brought a different result, but was quick to recognize judicial review as the essential issue.
The planning profession would do well to incorporate Justice Hall's convictions into their own professional philosophy.
"Proper judicial review to me can be nothing less than objective, realistic considerations of the setting the evils or conditions sought to be remedied, a full and comparative appraisal of the public interest involved and the private rights affected, both from the local and broader aspects, and a through weighing of all factors, which government is entitled to win if the scales are at least balanced or even a little less so. Of course, such a process involves judgement and the measurement can never be mathematically exact, but that is what judges are for -- to evaluate and protect all interests including those of individuals and minorities, regardless of personal likes or views of wisdom, and not merely to rubber-stamp governmental action in a kind of judicial laisser-faire." (Rose, Rothman, 1977, P. 7)
California, Plum v. City of Healdsburg (1965) An intermediate
decision approved the refusal of a p in a manufacturing district on the y prohibiting further residential icts, which clearly equates the oc other "residents" worthy of zoning
ermit for a mobile home basis of a strong local development in such cupants of mobile homes protection. (Williams,
PP. 461, 469)
Pioneer Trust & Savings Bank v. County of McHenry
(1968) A county ordinance requirement for a conditional use (use
by permit) was
that the applicant document a public necessity for
the use. The intermediate court upheld for a mobile home park in a manufacturing requirement of finding a public necessity conditional use permit.
the refus district. for the
al of a permit It upheld the granting of a
"However, on appeal, the Illinois Supreme Court held that, at least on the facts showing a public necessity as a
conditional precedent for a conditional use permit was an unconstitutional deprivation of private property, and decided that a permit should be issued."(Williams, 1974, P. 501 )
Kansas Craten v. Board of County Commissioners of Wyandotte (1970) The court upheld the denial of a special use permit a mobile home park in a heavy industrial district. This ion closely parallels the California decision in raising rns about the appropriateness of an industrial district for ential use. The court cited with approval expert testimony e disadvantages of placing mobile home parks in industrial
"The present practice of placing these courts in industrial areas raise some serious questions. If we subscribe to the belief that all living units should be provided with reasonably good environment the ability to attain this environment in an industrial area is seriously limited, if, in fact, possible at all." (Williams, 1974, P. 469)
While extremely convincing, there is always the counter which
just goes to show that things seldom are as si mple as they
initi ally appear. Testimony from the other side d ocumented the
need for additional medium-cost housing and noted that substan-
tial areas of industrially zoned land are ne ver used for
industrial purposes, as much as twenty thousand acres of land in
all. The county, zoned for heavy industrial, has never been used for industrial uses constituting an unrealistic restriction on the use of the land. (Williams, 1974-, P. 499)
After hearing both sides, the court upheld the exclusion by reaffirming the principle:
"It is not confiscatory to adopt a plan for land use development in an area where such development is possible. To abandon such plan for a single project in light of all circumstances presented by the evidence herein is not required. Here abandonment of the plan would create a situation where homes and children would be placed in an industrial area next to a chemical plant which emmited odors and discharged chemicals into a stagnant lagoon. The area could be reached only by crossing an unprotected railroad crossing which passes forty-one trains in a given day; and the area is subject to overflow water from the river." (Williams, 1974, P. 469)
Maine State Supreme Court Your Home, Inc
Portland (1981) The court upheld exclusion of a mobile home park from an industrial zone. The court simply said that such an exclusion bears an obvious relationship to legitimate public goals. (William, Taylor, 1982, P. 86)
Commercial and Business
Tennesse Morris v. City of Nashville (1961) Exclusion was upheld in a commercial zone district. The decision while referring to the standard list of health, safety, and traffic concerns added that the intent of sound zoning practices was to promote the most appropriate land use and protect property values and aesthetics. There was concern too that mobile homes would stifle other development on the area. (Williams, 1974, PP 481-482)
New Jersey Hohl v. Township of Readington (1962) The timing
of this New Jersey opinion coincided to the day with the Vickers decision. Justice Schettino, who joined Justice Hall in the Vickers dissent also dissented in this opinion.
The subject property was a large parcel zoned primarily for low density office-commercial. Due to poor drainage of the site, minimum tract size was 10 acres. One family dwellings were also seen to be compatible with the development scheme. The township envisioned itself as a low density residential community. As a result the township excluded all other types of residential development which "by nature and design would attract concentrations of people to small areas." (Williams, 1974, P. 480) The trial court judge was of the opinion that the exclusion was invalid,
"he reasoned the character of the community could be maintained in the 95% of the township which is zoned residential. Also, trailer courts are not incongruous with some of the other uses permitted within the district." (Williams, 1974, P. 481 )
The New Jersey Supreme Court did not affirm either.
The supreme court did not agree and upheld the policy of low density zoning, prohibiting all types of small lot development. The township was reaffirmed in its right to maintain and promote its envisioned character. Reserving land for land uses inconsistent with that character was not required. The court did not provide much definition as to its line of power in not substituting its opinion for that of the municipality. The density scheme was cited with a general reference made to health problems and made no attempt to define criteria any further. (Williams, 1974, PP. 480-481)
New York People of State of New York v. Olcott (1939) This lower court decision provides some understanding historically-regarding the courts attitude towards mobile homes. Suprisingly enough the New York court not only was sympathetic but went as far as to commend the residents of mobile homes.
"This ordinance which demands a permit, before a trailer which offends no zoning restriction, no building requirement, may lawfully be used as a residence, however complete its sanitary equipment, a permit that is summarily revocable without just cause, fails to meet the test by which the exercise of police power must stand or fall. It is not related to the health, comfort, safety or welfare of the community. It deprives the owner of a property right guaranteed by the constitution, the right to occupy his
trailer lawfully equipped, as a residence, it is invalid.
(Williams, 1974, P. 4-68)
Nebraska Crane v. Board of County Commissioners of Sharpy County (1963) The court upheld the decision of county
commissioners to deny a special use permit to a developer for the purposes of developing a mobile home park. By ordinance, mobile home parks were a permitted use in any zone district in the county. The court upheld the commissioner's decision on the grounds that,
"mobile home parks represent a rather intensive form of land use with more activity and congestion, and because their occupants were transients less interested in a desirable neighborhood, so that such parks were said to be usually not consistent with 'residential' development." (Williams, 1974, P. 497)
Interesting to note what the court considered to be in line with residential development. The opinion also pointed out that the proposed park development would involve an extension of a non-
conforming use. (Williams, 1974, P- 497)
The theory in zoning is that each district is an appropriate area for the location of uses allowed in the zoning ordinance and that the existence or entrance of other uses will tend to impair the development and stablity of the area for appropriate uses. (Rose, 1980, P. 141) A nonconforming use is a use that was a lawful use prior to the adoption of a zoning ordinance and is allowed to continue and is permitted to continue even though it fails1 to conform to ordinance requirements. (Rose, 1980, P. 135) The justifcation for these uses is to deprive an owner of the use of the property because of subsequent changes in the law would be an unreasonable exercise of the police power. (Rose, 1980, P. 141) The elimination of existing uses within a reasonable time does not amount to a taking of property nor does it necessarily restrict the use of property so that it cannot be used for any reasonable purpose. Generally developing a reasonable amoritization schedule provides an equitable means of discontinuance. (Rose, 1980, P. 141 )
Where nonconforming status applies to mobile homes, courts, in some jurisdictions, have placed prohibitions against the replacement of one unit with another. Prohibitions of replacement can have the effect of encouraging the continued occupancy of increasingly aging homes. Jurisdictions allowing replacement and even reconstruction of units can improve and upgrade a situation. (Bair, 1981, P. 18)
New York Osetek v. Barone (1968) The courts decision did not prohibit mobile homes but required that they provide housing as good as that provided by conventional housing. Mobile homes
were therefor subject to same lot size requirements as residences. The court rejected arguments that the provision would make mobile
homes unaffordable. Also rejected was the notion that because mobile homes were not permanently attached to the land somehow meant that people living in them did not need as much land around their home. (Williams, 1974., PP. 504.-505)
Pennsylvania County of Fayette v. Holman (1973) The court upheld an exclusion of a mobile home squarely on aesthetic grounds. (Williams, Taylor, 1982, P. 84.)
Illinois Oak Forest Mobile Home Park, Inc, v. City of Oak Forest (1975) The Illinois court recognized that mobile homes were unique in their ability to provide a comfortable dwelling at a lower cost. Testimony before the court also noted that there was serious shortage of lower cost housing in the area. Mobile homes, properly regulated, would contribute quality, lower cost housing to the citizens of Illinois. (Williams, Taylor, 1982, P.
New York Town of Pompey v. Parker (1976) In a more recent decision a New York court held that the total exclusion of mobile homes would be unreasnable. However, a provision of the town required a mobile home resident to obtain a one year special temporary permit which in effect excluded any permanent mobile homes. (Williams, 1974, P. 86-87) The permit system was upheld to be reasonable since exclusion was not total. The restriction merely limited mobile homes and did not exclude them completely. (Williams, Taylor, 1982, P. 83)
Rural and Agricultural
Exclusion of mobile homes from open areas, generally agricultural and rural, raises issues quite different from those involved in connection with other zone districts. Exclusion from this district, because of a lack of vacant land or the regulatory structure associated with the other districts, can in effect constitute an exclusion for the entire jurisdiction. Justification for a mobile home exclusion in an agricultural zone district could not be based upon the argument of depreciating property values. Rather justification is generally related to a future growth pattern, which raises the question of long range planning in case law associated with this district. (Williams,
1974, P- 484)
New Jersey Napienkowski v. Township of Gloucester (1959) Three years prior to the Vickers decision in the same township, the court upheld the exclusion of a mobile home from rural residential area.
Again the court referred to the obvious health and safety problems associated with mobile homes. There remained little doubt in the mind of the court that scattered development of mobile homes would tend to "stifle residential development and also that it might mar the local landscape"
The decision is a clear statement of the "dominant strain in New Jersey zoning philosophy using vague criteria to justify reactionary conclusions, for the court held that two of the basic concepts of sound zoning, encouragement of the most appropriate use of land and conservation of property values, may be undermined
by the indiscriminate location of trailers within a municipality." (Williams, 1974, P. 486)
Delaware Zoning Board of Adjustment of New Castle v. Dragon Run Terrace, Inc. (1966) The board had denied a special permit for a mobile home in an agricultural zone district. The district was set up as a holding pattern for future development. The
permit was denied on the grounds that mobile homes would have a detrimental affect on furture development as well as the tax base in the area. The court held that such grounds were not valid.
Due to the fact that there was no way of telling when and what
type of development would occur a permit could not be refused on the grounds of a possible harm to such development. On the
question of the tax base the court said,
"there was no evidence that the proposed development would lower property values, and that since the particular tract was not suited for anything else, any taxes received would be a net gain." (Williams, 1974, P. 502)
Illinois Lakeland Bluff v. County of Will (1969) The court ruled that an exclusion of a mobile home park in an agricultural district was invalid. The land had been strip-mined for coal and then abandoned without proper rehabilitation, making it unsuitable for agricultural use. The court ruled in favor of the mobile home use as it needed low-cost housing.
The court rejected the potential problem of infrastructure requirements. A mobile home park could not be disapproved because it would create a need for further public facilities. (Williams, 1974, P- 462)
Will County refused to rezone the property when first requested because of the feeling that the mobile home park
development would cause an increase in local government costs for schools, roads and other facility. The court held that such considerations, however, could not be a justifiable basis for rejecting an appropriate use of the property.
The court further found that the plaintiff had shown the need the low-cost housing. Mobile homes would cost one-third (1/3) as much as permanent dwellings.
"The Court also found that a mobile home development was the most appropriate use of property, as the area was buffered; that the tract was wasteland which would be reclaimed; and that the need for housing would be fulfilled." (Williams, 197-4, P. -487)
The Illinois court explicitly rejected that such development should be disapproved because it would increase expense for local public services. (Williams, 197/., P. -487)
Idaho County of Ada Board of County Commissioners v. Walter
(1975) The Idaho court upheld the prohibition of a mobile home
park in an agricultural district. Justification for denial was on the grounds that the intent of the agricultural district was to
preserve land for farming and other agricultural uses. (Williams,
Taylor, 1982, P. 86)
The highlighted case law provides few trends, but perhaps it has aquainted us with those grounds most commonly used to effect a complete exclusion of mobile homes from various zone districts. As more and more courts begin to place a greater emphasis on "home" rather that on "mobile" there will be fewer courts unholding the constitutionality of complete exclusion. If there is to be recognition of any judicial trends it would be the promulgation of reasonable, with a capital R, regulations in lieu of total exclusion. Not outside those bounds of reasonableness
zoning ordinance while not excluding mobile homes entirely will still restrict the location of those homes. (Berhardt, 1980,
P. 33fl 334)
ion III: If mobile homes must be allowed, can they be restricted solely to mobile homes parks?
Mobile home parks have been a fixture on the landscape since
the industry's inception. Nearly half of all mobile home dwellers
reside in mobile home parks. A 1981 Owens/Corning survey of 7,500
recent mobile home buyers show that the percentage of mobile home
owners residing in mobile home parks for 1981 was 47%. A 1974
survey showed that the percentage in 1981 had dropped from 57%.
(Owens/Corning 1982, Section I) The concentration of mobile homes
into a limited area was formerly justified on grounds that such
confinement was necessary because of sanitary problems inherent in
early mobile home living. It was also argued that grouping
mobile homes would reduce architectural disharmony and minimize
impact on the landscape. Today, approximately half of all the
mobile homes being sold are doublewide units indistinguishable
from site built housing. (Bernhardt, 1980, P. 334)
While these arguments are not applicable to current mobile
home technologies zoning ordinances restricting mobile homes to
parks are held to be legal. Are such regulations truely justified
on site planning, economics, and aesthetic factors, or is it only
a means to push them out of sight. (Williams, 1974, P. 506-507)
Texas Comeau v. City of Brookside Village (1981) The
applicant was denied permission from the city to locate a mobile
home!on a four (4) acre tract because the site was not in a mobile
home park. The City attempted to justify its action on the grounds the city was on septic and that for health reasons it was important to limit mobile homes to parks so as not to overly tax the system. The restriction was held to be unconstitutional as the city had not shown that the applicant's action would result in a threat to the public health. The city could not restrict the applicant's free use of property if no public interest was involved. The court found nothing which required the city to make a distinction between a site built home and the applicants mobile home. Construction of a site built home would require a septic and would have not raised any concern. "There is no increased
threat to the public health when the same septic system and water well are used in conjunction with a mobile home." (Williams, Taylor, 1982, P. 90)
Hichigan Moore v. Foster (1980) Apparently lacking an adequate basis in the police power to confine mobile homes to mobile home parks, the Michigan Supreme Court ruled that an ordinance requiring such confinement was unconstitutional. While the court chose to invalidate the ordinance it was careful to indicate that its objection was directed at per se bans on mobile homes in areas outside parks designated for them Such. bans are not related substantially to the public welfare. A per se ban or restriction is based on nothing more than a distinction between mobile and non-mobile homes. (Williams, Taylor, 1982, P.90)
Rhode Island Town of Glocester v. Olivo's Mobile Home Court, Inc. (1973) Based upon a 1965 ordinance prohibiting the development of new mobile home parks, and limiting the expansion of old ones to 30 units, the town is attempting to stop defendant
expanding an old park to greater than 30 units. The trial upheld the limitation on the grounds of health problems not in conventional habitation. The city ordinance treated e homes as a use by right only in the same district which ed the manufacturing of fertilizer, distilling of tars, and a
The Supreme exclusionary zoning
(Wright, Gitelman Court considered
1982, PP. 891-892) this limit to be a type
"The municipality's contention, that its limitation of 30 units constitutes an effort to lessen congestion, seems to be a diplomatic way of expressing its real concern that of finding some way to maintain the population of its schools at a point where a stable tax rate can be preserved. We do not believe that a zoning ordinance was ever intended to fulfill such a function." (Wright, Gitelman, 1982, P. 894.)
CHAPTER IV: HOW FAR DOES MOUNT LAUREL OPEN THE DOOR?
In 1975 the Supreme Court of New Jersey adopted a judicial principle in the Mount Laurel I decision which invalidated the use of the police power as a means of excluding the poor on the basis of wealth and socio-economic class. Framing its decision in strong and non-evasive language the New Jersey Supreme Court dealt a decisive death blow to zoning laws that had perpetuated a pattern of excluding the poor in the state.
For over two decades, prior to Mount Laurel I, the New Jersey Supreme Court had upheld zoning laws that had systematically excluded the poor. (Rose, Rothman, 1977, P. 17) Rapidly becoming the most quoted zoning decision since Euclid v. Ambler (1926) the Mount Laurel decision represents the culmination of a significant trend in judicial attitudes coming out of the 1970's. (Rose, Rothman, 1977, P. 81)
The plaintiffs, which included the Southern Burlington and Camden County chapters of the N.A.A.C.P. filed their original complaint against the Township of Mount Laurel, New Jersey, in May of 1971. Mount Laurel I was decided four years later in March of 1975. The Township of Mount Laurel was a developing municipality on the eastern edge of the Delaware Valley industrial area. (Allepsworth, 1981, P. 29)
The suit filed against the defendant township basically challenged the system of land use controls in Mount Laurel on the grounds that they "unlawfully excluded low and moderate income
families." (Rose, 1980, P. 228) The suit specifically sited prohibitions on multi-family development, large lot zoning, excessive building and setback requirements as having the effect of excluding the poor. The legal question to be resolved by the court was,
"whether a municipality like Mount Laurel may validly, by a system of land use regulations, make it physically and economically impossible to provide low and moderate income housing in the municipality for the various categories of persons who need and want it and thereby, as Mount Laurel has, exclude such people from living within its confines because of the limited extent of their income and resources." (Rose, 1980, P. 229)
The action taken by the court in resolving this question was not only in response to the situation in Mount Laurel, but to a pattern of preverse land use regulation through out the state. The court had in earlier cases indicated that, "municipalities cannot hide behind boundary walls without regard for the world outside or without providing for decent housing for those of low and moderate income." (Rose, Rothman, 1977, P. 4-1)
Factors Leading to Mount Laurel While there were many factors that lead the Mount Laurel doctrine from the conceptual stage to codified law, none were as significant as the convictions of the justice who authored the majority opinion for the Mount Laurel decision. Justice Hall was
ng for strong judicial activism in striking down exclusionary
zoning law before it became a popular judicial cause in the 1970's. In the Vickers v. Township Committee of Gloucester (1962), Justice Hall argued in dissent against the exclusion of mobile homes as a lower cost housing alternative. The Supreme Court upheld the exclusion 5-2.
A second factor important to the background of Mount Laurel
was the explosive population, industrial, and commercial growth in
the last twenty-five years. (Rose, Rothman, 1977, P. 4-04-) While
Mount Laurel was seen as a veritable gold mine of things done
contrary to the general welfare, it was similarly situated to many
suburban settings around the country. (Rose, Rothman, 1977, P. 11)
Two densely populated urban areas in the northern
metropolitan New York and the Philadelphia-Camden areas had been
losing population to the outer-ring suburban areas. As a result
serious housing shortages existed. The court recognized the
housing problem as not being only a problem in the central city:
"Large segments of our population are compelled to live in substandard and dilapitated housing by reason of their economic condition. This situation is not confined to our central cities nor to the so-called minority members of the population. It exists in all types of municipalities and with respect, for example, to young couples, elderly people, and families with numbers of children who just cannot afford or are not accomodated by the kinds of better housing which most outlying municipalities permit to be built." (Rose, Rothman, 1977, P. 40)
Poulation in Mount Laurel increased 57% from 11,221 in 1970 to 17,614 in 1980. Between 1970 1977 Mount Laurel added 1,300,000 square feet of industrial floor space and 700,000 square feet of office space. Between 1970 1980, 2,784 new housing units were built in Mount Laurel, all of them under restrictive conditions. At the time the original complaint was filed, under those restrictive conditions with no new lower income housing being built, the percentage of low income families would have decreased from 25% in 1970 to 7.7% in the year 2000. (So. Burlington Cty, N.A.A.C.P. v. Mount Laurel Tp., PP. 296-297)
restrictions held to be invalid by the court were;
1. Severe bedroom restrictions
2. Restrictive minimum lot size, i.e., no small lot zoning.
3. Excessive lot frontage and setback requirements.
4.. Zoning of an unreasonable amount of land for nonresi-dential, industrial uses.
5. The imposition of penalties for a large number of children per unit.
(So. Burlington Cty, N.A.A.C.P. v. Mount Laurel Tp. P. 294) Twenty-nine percent of land area in Mount Laurel was zoned as
trial, 1.2% mapped for retail and business, with the nder zoned as one of four residential designations. The three residential districts allowed only single-family hed dwellings on single lots. The forth residential district designated as 'cluster' or 'planned adult retirement nity' .
Mount Laurel's Defense
In defense of its zoning restrictions Mount Laurel argued that under the delegated power of the state, a municipality may legitimately,
"zone extensively to seek and encourage the "good" tax ratables of industry and commerce and limit the permissible types of housing to those having the fewest school children or to those providing sufficient value to attain or approach paying their own way tax wise." (Rose, 1980, P. 232)
posed Given of fic achie to ac indus
Mount Laurel raised to its defense one of the most frequently questions in zoning law, the validity of fiscal zoning, the limited sources of revenues municipal officials ofen ials often find themselves between a rock and a hard place to ve fiscal balance in view of increasing costs. In an effort hieve that balance, municipalities often attempt to stimulate trial and commerical rather than residential development. In
discouraging residential development, particularly those types which would generate school age children, the need for building schools and the associated costs of growth are avoided. When zoning laws are enacted to this end, the term is called 'fiscal zoning'. (Rose, Rothman, 1977, PP. 9, 82) Mount Laurel's defense was an attempt to show that the use of zoning power to maintain fiscal balance was reasonably based in the New Jersey doctrine that it was appropriate for a municipality to seek out good ratables. (Rose, Rothman, 1977, P. 82)
Mount Laurel Opinion
In response, the court did affirm the doctrine but went considerably further to show that Mount Laurel was outside the intent of of doctrine. The appropriate scope of the doctrine is provided by the court,
"We have previously held that a developing municipality may properly zone for and seek industrial ratables to create a better economic balance for the community vis-a-vis educational and governmental costs endangered by residential development, provided that such was done reasonably as part of and in furtherance of a legitimate comprehensive plan for the zoning of the entire municipality. While we fully recognize the increasingly heavy burden of local taxes for municipal governmental and school costs on homeowners, relief from the consequences of this tax system will have -to be furnished by other branches of government. It cannot legitimately be accomplished by restricting types of housing through the zoning process. Our opinion is that Mount Laurel's zoning ordinance is presumptively contrary to the general welfare and outside the intended scope of the zoning power. (Rose, 1980, P. 232)
The Mount Laurel decision would be a landmark decision if it accomplished nothing more than entitle housing to constitutional protqction on the grounds that it was basic to the needs of life, and therefore an essential component of the general welfare. (Rose, Rothman, 1977, 484) While it certainly accomplished that
s further siginificance in that it requires municipalities to affirmative steps in providing housing for low and moderate
incomje persons. Justice Hall states the heart of Mount Laurel I,
"a municipality, by its land use regulations, must presumptively make realistically available an appropriate variety and choice of housing which must all affirmatively include an opportunity for low-and moderate-income people who so desire to live there, at least to the extent of the municipality's fair share of the present and prospective regional need therefore, unless the particular municipality can demonstrate peculiar circumstances which dictate it should not be required to do so." (Rose, Rothman, 1977, P. 11 )
ourt invalidated those restrictions in the Mount Laurel g ordinance which were objectionable and gave the ipality three months to revise their ordinance. The court that,
"The exclusion of people wishing to live in the community because they could afford only the housing permitted by the zoning ordinance was just as wrong as excluding them from residence because of their race, religion or national origin." (Rose, Rothman, 1977 P. 42)
effort to side-step potential conflict with federal rulings
The c zonin munic held
and decrease the chances of a successful appeal to the U.S. courts, the court based its decision on state constitutional law. (Allensworth, 1981 P. 4-2) The U.S. courts have tended to reject equal protection arguements when related to housing issues. The court system has held that there is no reason to scrutinize such complaints as housing, is not a fundamental interest. (Rose, Rothman, 1977, P. 84)
Mount Laurel I rests on three related principles. First, is that the decision confers a constitutional right on low and moderate income persons protecting them from preverse land use regulations which have the effect of exclusion. Second, it
reverses the burden of proof, requiring the municipality to prove
that its land use regulations affimatively encourage the provision of lower cost housing. Thirdly, the municipality must provide its fair !share of the regional need for low and moderate income housing. (Rose, Rothman, 1977 P. 73) Consequently, the net result is that when a New Jersey zoning ordinance is challenged on Mount Laurel grounds, the courts test its validity not only by traditional standards used prior to Mount Laurel, but in addition by new standards resulting from the decision. (Rose, Rothman, 1977, PP. 4-6-47)
Criteria of Zoning Validity
Prior to the Mount Laurel decision testing the validity of a New Jersey zoning ordinance was based on traditional standards. Currently, with the exception of New Jersey and other states which have adopted the Mount Laurel doctrine, these traditional standards are the principal means of determining validity. As discussed in Chapter II that standard is based on its promoting, rather than harming the general welfare. The constitutional power to zone is delegated and must be exercised within the bounds of the general welfare. When land use regulations are determined to exceed reasonable limits such power is declared unconstitutional. (So. Burlington Cty, N.A.A.C.P. v. Mount Laurel Tp. P. 208) The Mounti Laurel decision retains all of that as well as creating additional standards. New criteria set forth in Mount Laurel I are;
1. The zoning ordinance must provide for the municipality's "fair share" of the housing needs of the region.
2. The housing needs to be met must include prospective, as well as present, housing needs of the region.
3. If a municipality zones for industry and commerce for local tax benefit purposes, it must zone to permit adequate housing within the means of the employees involved in those uses.
4. Provisions must be made for multifamily housing, small dwellings on very small lots, and areas where high density is permitted.
5. There may be no bedroom or similar restrictions on multifamily housing, no artifical and unjustifiable minimum lot on building size requirements, and no fiscal zoning.
(Rose, Rothman, 1977, P. 484)
The new test proposed in Mount Laurel I was that land use regulations, to be a valid exercise of the zoning power, should make realistically possible the provision of its fair share of housing for low and and moderate income persons. (Rose, 1980, P.236)
Fair Share and Region
Mount Laurel I was not a site specific attack on exclusionary zoning. Due to this the court was not required to provide an affirmative judicial remedy. It did provide four criteria to assigt municipalities in defining their share of the responsibility. (Mandelker, 1982, PP. 208-209) The criteria were:
1. Allocation of an equal share of the obligation to each municipality;
2. Allocation of responsibility for housing based upon need;
3. Allocation of housing to achieve ecconomic and racial integration; and
4. The suitability of the jurisdiction to accomodate the housing.
(Rose, 1980, P. 236)
It was soon to be seen what a troublesome issue calculating fair shar^ could became for the courts. The process had the potential
of phrusting the courts into a morass of projections and statistics with no clear agreements.
the need to
Crucial to the concept of fair share was
determine the need generated by a region. The court felt that,
"When regulation has a substantial external impact, the welfare of the citizens beyond the borders of a particular municipality cannot be disregarded and must be recognized and served." (Allensworth, 1981, P. 29)
Just as it was important to analyze various community functions on
a regional basis it made sense to analyze housing need from a
similar context. However, the court does not define region except
to say that its meaning would vary from situation to situation.
se, Rothman, 1977, PP. 14-2, 184) The court again saw clearly
the difficulties involved in designating regions,
"...the pertinent economic and sociological consideration are so diverse as to preclude judicial dictation or acceptance of any one solution as authoritative..." (Rose, 1980, P. 245)
ce Hall draws the bottom line in ion,
final summary of the
"The case stops short of a strong affirmative remedy. The remedy was a negative one in that it told a municipality that its ordinance was no good in part, and that it told a municipality is the repository of power. It should have the first crack at changing the ordinance. But we encouraged the plaintiffs to return to court if the municipality didn't do what the court expected." (Rose, Rothman, 1977, P. 11)
Oakwood v. Madison
The New Jersey Supreme Court reconsidered Mount Laurel I two years later in Oakwood at Madison, Inc. v. Township of Madison. This case was initiated in 1970 and decided in 1977.
The developer-plaintiff brought a site specific action against the Township of Madison for a provision in its zoning ordinance that prohibited the construction of multi-family apartments. The zoning ordinance restricted the majority of
development in the township to low density residential. The trial court invalidated the entire ordinance as exclusionary on the grounds that it did not meet its fair share of the regional housing need. The court continued in its affirmation of Mount Laurel I when it said, "a municipality must not ignore housing needs, that is, its fair proportion of the obligation to meet the housing needs of its own population." (Rose, 1980, P. 253)
The trial courts decision was appealed to the New Jersey Supreme Court in March of 1973- In a U to 3 decision in 1977, the Supreme Court upheld the trial court's decision with
modifications. The heart of the decision makes it clear that a zoning ordinance is exclusionary,
"If it operates in fact to preclude the opportunity to supply any substantial amounts of new housing for low and moderate income households now and prospectively needed in the municipality and in the appropriate region whether or not such effect was intended." (Rose, 1980, P. 254-)
The decision replaces the old test of determining if an ordinance
is exclusionary with a new one. Under the new test a land use
regulation is exclusionary if it precludes the opportunity for new
housing for low as well moderate income persons. (Rose, 1980, P.
260) The old test was based upon the idea that land use
regulations should make low and moderate housing opportunities,
The new test was a more accurate reflection of the economic realities of the housing industry, yet it raises a major question. Highly debatable was the question of whether it is economically feasible to provide new housing for low-income persons.
Construction costs of new for sale or rental units put these housing types well beyond the reach of low income persons. (Rose,
1980, P. 262) Discussed in the introduction of this paper the gap between what people can afford to pay and the actual cost has been closed in the past through the introduction of substantial subsidies. Experience indicates that government is allocating fewer and fewer of its national resources to housing subsidy programs. (Rose, 1980, P. 262)
The Madison decision also required municipalities to adjust their zoning regulations so as to allow the development of least cost housing that would be consistent with health and safety standards. (Mandelker, 1982, P. 208)
While the Madison decision did affirm Mount Laurel I it attempted to extricate the courts from, "the statistical warfare of demarcating the region and determining the fair share of the municipality." (Rose, Rothman, 1977, P. 224)
The court held that no specific fair share determination need be made by the court as it was much more appropriately a legislative matter. (Rose, Rothman, 1977, PP. 208-209)
"The courts were talking planners language gone was the mumbo-jumbo about highest and best use and beginning to look to planners, rather than real estate people and appraisers, for expertise." (Planning 1983, P. 8)
Minimizing the courts role however, had the effect of minimizing the decision's ability to provide some kind of solid guidance to the municipality. The decision was too vague and did not ensure sufficient judicial scrutiny of zoning ordinances. Ordinances that clearly failed to meet the Mount Laurel requisites passed the Madison test. (So. Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp., P. 220)
Mount Laurel II
In January of 1983, the New Jersey Supreme Court handed down its second opinion on Mount Laurel. A highly sophisticated decision, Mount Laurel II "constituted the most serious limitation yet on the presumption of validity which was accorded local zoning since thw U.S. Supreme Court first validated this exercise of the police power in 1926." (Planning 1983, P. 10) Giving the benefit of the doubt to the municipality in Mount Laurel I, the court requested that it revise those objectionable portions of the ordinance without the courts supervision. Less than a year after the Mount Laurel I decision in 1975 the court realized that it had ill placed its trust.
The revised ordinance was shown to be no more effective a mechansim for the provision of lower cost housing than the original. (Rose, 1980, P. 24.8)
"After all this time, ten years after the trial court's initial order invalidating its zoning ordinance, Mount Laurel remains afflicted with a blatantly exclusionary ordinance. Papered over with studies, rationalized by hired experts." (So. Burlington Cty., N.A.A.C.P. v. Mount Laurel Tp. 92 N.J. 158)
In wording seared of cordiality the court found few redemptive
qualities in Mount Laurel's attempt to correct deficiencies in its zoning ordinance.
"Instead of attempting to amend those specific deficiencies, Mount Laurel simply added three new zones to meet its fair share obligation, presumably assuming that such action would conform to the underlying intent of our ruling. We find that the amended ordinance falls far short of what was required, that it neither corrects the particular deficiencies of the prior ordinance nor otherwise affirmatively provides a realistic opportunity for Mount Laurel's fair share of lower income housing. It is little more than a smoke screen that attempts to hide the Township's persistent intention to exclude housing for the poor." (So. Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp. 92 N.J. 158)
Mount Laurel II unanimously upheld Mount Laurel I the court
recognized, from experience, the need to strengthen its hand.
"We have learned from experience, however, that unless a strong judicial hand is used, Mount Laurel will not result in housing, but in paper, process, witnesses, trials and appeals. We intend by this decision to strengthen it, clarify it, and make it easier for public officials, including judges, to apply it." (So. Burlington Cty,
N.A.A.C.P. v. Mount Laurel Tp. 92 N.J. 158)
Acting out of conviction and determination to end a situation that
forever zoned poor people out of the state the court implemented
the means of enforcing its own determined obligation.
The presence of an enforcement remedy takes Mount Laurel II
well beyond Mount Laurel I. (Planning 1983, P. A) The court in
Mount Laurel I felt that its hands were tied with regard to
enforcement because zoning was not permitted on a regional basis.
(So. Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp., PP. 238-252)
Judicial remedy provided that three judges were to be appointed by
the Chief Justice. Each judge would be responsible for an area of
the state. That particular judge would then hear and decide all
actions brought on the grounds of the Mount Laurel doctrine for
that particular area. The court felt that this system would
result in the emergence of a consistent and predictable regional
pattern of need and therefore establish the means to determine
fair share obligations. (So. Burlington Cty. N.A.A.C.P. v. Mount
Laurel Tp PP. 253-254-)
A second way in which Mount Laurel II goes beyond its forerunner is that the courts would now administer local planning and zoning to conform to the State Development Guide Plan (SDGP)
(Planning 1983, P. A) In the interim between Mount Laurel I and
II the State of New Jersey adopted its SDGP (May 1980) which was to function as the states blueprint for growth and development. (So. Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp. PP. 225, 230) The SDGP call for a compact pattern of growth which may utilize existing infrastructure systems in an economical manner.
Discussed as an important element in the SDGP, housing is a key factor in achieving a rational and equitable pattern of growth and development within the state. An important goal within the housing element is,
"encourage housing development in proximity to jobs, commercial areas and public transportation, and promote a variety of housing types so that households of varying sizes and incomes can find suitable housing." (So. Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp. PP. 230-231)
The net result of Mount Laurel litigation lasting ten years was
establish equal access to housing as being a fundamental
constitutional importance at the state level." (Rose, Rothman
P. 82) To this end the court has imposed obligations in the negative and affirmative. In the negative, the court that "municipalities may not thwart or preclude the
opportunity", and in the affirmative municipalities must actively plan and provide, "the reasonable opportunity for an appropriate variety and choice of housing." (Rose, Rothman 1977, P. 4-2) Recognizing the fiscal constraints of many jurisdictions within the state the court suggested that meeting a fair share obligation would perhaps require more than low income density bonuses, and mandatory set asides. (Planning 1983, P. 10) A great deal of language preceeding the opinion suggested that the, "court is leaning toward a review of previous holdings dealing with mobile homes: and mobile home parks." (Rose, Rothman 1977, P. 148)
Mount Laurel: An Affirmation of Mobile Homes
The Mount Laurel I court gave the defendant municipality 90 days to adopt an amended zoning ordinance correcting the specific restrictions that the court had invalidated. The plaintiff was
encou raged to come back to the court if it felt at that time the
ordin ance was still too restrictive. Mount Laurel II was
initi ated when a supplementary complaint was filed by the
plain tiff. Added to the list of plaintiffs in Mount Laurel II was
Davis Enterprises . The mobile home developer plaintiff was
allowed to intervene after the Mount Laurel I decision. Mount Laurel had rejected a proposed 535 unit, 107 acre mobile home park in the township. Davis had committed Section 8 subsidies covering 20% of the development. After being denied approval Davis was seeking judicial remedy from the townships exclusion on all mobile homes. The court subsequently affirmed an order given by the trial court to the township to grant Davis a building permit per his revised development plan. (So. Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp., PP. 307-309)
A criticism leveled at the Mount Laurel decision was that as a result of a unilateral presidential act there simply were no governmental programs which could provide the scale of subsidy required to build low and moderate income housing. Also, because courts could not require municipalities to spend their own money for this purpose Mount Laurel was a nullity. (Rose, Rothman, 1977 PP. 91-92) The court in Mount Laurel II in no unclear terms, came back with a choice; "to find some other way to subsidize some
inexp for af f ir time
ensive conventional housing, or to zone a substantial tract mobile homes. (Rose, Rothman 1977, P. 92) Mount Laurel II med mobile homes as a quality housing alternative at the same it struck down previous grounds for its exclusion.
The court explicity reversed the Vickers v. Gloucester (1962) ion as being suffiicient grounds to exclude mobile home. The
court said that mobile homes may be prohibited "only if there
exists proof that sound planning practices in a particular
community require such prohibition." (Planning 1983, P. 10)
Justification for prohibiting mobile homes was held on an
equal plain with an other residential form,
"just as Vickers is hereby overruled to the extent that it held that any developing municipality may totally exclude mobile homes, we hold that such attempt at a total exclusion will have to be justified by the same doctrines that would justify a total exclusion of apartment houses, townhouses, or even single family residences." (So. Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp., PP. 276-277)
Mount Laurel II was a clear example where the doctrine of
following prior established rules was held to be inappropriate due
to changing conditions and circumstances. Judge Wood in the Mount Laurel II decision noted that the mobile home industry had changed significantly since 1962. Mobile homes had become structurally sound and attractive, and since 1974. safety and soundness had been regulated by the National Mobile Home Construction and Safety Standards Act. (So. Burlington Cty. N.A.A.C.P. v. Mount Laurel P. 275) The court also noted that mobile home in the east corridor were selling for approximately half the price of new single-family detached homes. (Rose, Rothman, 1977, P. 92) Just[how far Mount Laurel II opened the door to mobile homes is
presented in the court's statement,
"Lest we be misunderstood, we do not hold that every municipality must allow the use of mobile homes as an affirmative device to meet its Mount Laurel obligation, or that any ordinance that totally excludes mobile homes is per se invalid. Insofar as the Mount Laurel doctrine is concerned, whether mobile homes must be permitted as an affirmative device will depend upon the overall effectiveness of the municipality's attempts to comply: if compliance can be just as effectively assured without allowing mobile homes, Mount Laurel does not command them; if not, then assuming a suitable site is available, they must be allowed." (So. Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp., P. 276)
It is not difficult to see why the Mount Laurel decision is seen as being the most important zoning opinion since the U.S. Supreme Court validated the concept in 1926,
In summary, the Mount Laurel decision is an extremely sophisticated and timely decision which confronts straight ahead a problem of emense dimension. Whether the decision will effect a greater range of housing opportunities for low and moderate income people in New Jersey is yet to be seen. Impacts of Mount Laurel will certainly be felt on a national scale. However, the extent and rate of change at that level will depend largely on the degree other high courts nation wide are biased by the New Jersey Supreme Court. "To the extent that judicial intervention is capable of producing such a result, no better test is ever likely to be devised." (Planning 1983, P. 13)
In the Housing Act of 1980 Congress changed the terminology in
federal literature referring to manufactured housing rather than
mobilb homes. (Western Manufactured Housing Institute, 1980, P. 2)
The manufactured housing industry is producing high quality,
affordable housing at a time when people are being priced out of
the conventional housing market. The product, although more
influenced by engineering rather than architecture, is constructed
under rigid federal construction and safety standards and comes
fully equipped with any amenity package found in site built
housing. As the industry has developed new technologies and a
greater awareness of consumer preferences previous design
limitations have been overcome resulting in a product
aesthetically comparable to conventional housing. (Bernhardt,
1980, PP. 355-357) Todays manufactured housing industry had
evolved independently from the conventional housing industry to
capture a significant share of new single family homes nationally.
("After years of accounting for less than 20% of total singlefamily home sales, manufactured homes rose to 30% of the total in 1980. Manufactured home sales rose another 9% in 1981 to account for 36% of the national total."
(Manufactured Housing Quarterly Summer, 1982, P. 5)
Yet, these trends as significant as they are doing little to
prevail upon faulty associations and stereotypes linking todays
product with its ancestor. (Nutt-Powell, 1982, P. 95)
"Manufactured housing has often been touted as a wave of the future, only to remain stuck with its past a sales system and a legal status descended from the auto and trailer business." (Nutt-Powell, 1982, P. vii)
The a|ctions and attitudes of the public sector provides an envelope within which the housing market operates. The scope of activities within the housing market are either discouraged or encouraged through the foundation of a public policy. The scope of activities within the housing market are governed by two factors. The two factors are; 1) production and occupancy costs; and 2) consumer preference. Housing cost are regulated by governmental policy in the form of the costs of borrowing money, while consumer preference may seem to be a matter of personal taste not public policy. However, consumer preference is directly influenced as, "governmental regulations explicitly channelize the nature and location of acceptable housing activities." (Nutt-Powell, 1982, P. 95) Differential tax treatment, ignorance of the product and lack luster attitudes on the part of planners have acted to handicap both the industry's performance as well as true consumer preference.
Where legislative recognition has failed to progressively redirect public policy with regard to manufactured housing the courts have been obliged to intervene. This intervention into issues which are typically legislative in nature is the result of a subtle but significant shift in attitudes of the court. The shift in judicial concern results from the courts' recognition that[mobile homes are in fact "a legitimate form of least cost housing." (Jaffe, 1983, P.5) At a minimum the courts have expressed a growing tolerance of manufactured housing as a way of addressing housing affordability. In Mount Laurel II the New Jersey Supreme Court invalidated a zoning exclusion of mobile home
parks "when the effect of such prohibition would be to exclude a socio-economic component of the population." (Rose 1980, P. 202)
Litigation trends are difficult to identify on this issue as some courts hold that the only proper concern of zoning is the physical use of land and the sturctures thereon. Socio-economic objectives, under this holding are not a proper use of the zoning power. (Rose, 1980, P. 202) Even with the growing tolerance of manufactured housing the courts still affirm the right of local governments to control the character and location of development. While many jurisdictions allow mobile home parks, only a few have gone so far as to regulate manufactured housing the same as conventional site-built housing. Approval or denial of mobile home development within a community still rests largely upon a case-by-case examination of the factors involved. Local governments can still close their doors totally to manufactured housipg if adequate justification is provided. Exclusion of manufactured housing is likely to be upheld by the courts providing other forms of low income housing are avilable. (Jaffe, 1983, PP. 5-7) Apart from this justification the standard list of problems discussed in Chapter II, regarding current mobile home techonologies, are no longer bomb-proof. The formidable walls held indomitable around these problems have slowly crumbled under judicial attacks focused on the most vulnerable point; their reasonableness. It is important to underscore that the scope of these problems is in relation only to current mobile home technologies.
Mobile homes fall along a long spectrum. Not all mobile
are alike. At one end is the manufactured home constructed
under indis of mo under Class of de given in
federal code, set on a substantial foundation, being tinguishable from site built housing having all appurtances bility removed. At the other end is the old junker which any definition is unfit for human occupancy, ifications along this spectrum are important for the purpose fining a regulatory intent which corresponds to homes in a classification. Bair's classification system as defined his PAS report Regulating Mobile Homes, identifies the
"1. Class A New mobile homes certified as meeting Mobile Home Construction and Safety Standards of the Department of Housing and Urban Development and approved as meeting "acceptable similarity" appearance standards.
2. Class B New mobile homes certified as meeting HUD Mobile Home Construction and Safety Standards, but not approved as meeting "acceptable similarity" appearance standards.
3. Class C New Mobile homes certified as meeting acceptable prior code or codes or used mobile homes certified as meeting either HUD standards specified above or such prior code, found on inspection to be in excellent condition and safe and fit for residential occupancy.
A- Class D Used mobile homes, whether or not certified as meeting HUD prior codes, found on inspection to be in good condition.
5. Class E Used mobile homes, whether or not certified as meeting HUD or prior codes, found on inspection to be in fair condition.
6. Class F Used mobile homes, whether or not certified as meeting HUD or prior codes, found on inspection to be in poor condition and unsafe and/or unfit for residential occupancy." (Bair, 1981, P. /+)
For the purposes of discussion classifications A and B are used. It is a difficult determination to make based on what would be acceptable both to residents in a single-family neighborhood
and t|o the courts. The determination is limited, as where only a class A manufactured home would be acceptable in a residential neighborhood the courts may order that classes A, B, and C be allowed in order to satisfy a fair-share requirement. The following problems are limited to A and B classes of manufactured housing.
Health and Sanitation
A problem which has obvious jurisdiction for earlier times and conditions has no relevance to class A and B manufactured homes. Given the rigid requirements under both the federal construction and safety standards and current subdivision guidelines the issue of health and sanitation is not a reasonable basis of exclusion.
High Density Development
Park size and density are important parameters which do affect the quality of a mobile home park. In the past, conventional housing has always been subject to various regulations which have reflected a standard for quality housing. Mobile home parks were not formerly governed by such regulations. Mobile home park development often ignored design considerations and amenities in attempt to cut costs. Whatever costs savings were realized by the developer were surely the long term losses for the consumer and the community. (Bernhardt, 1980, P. 34-6) As a result of poor development practices municipal regulations were enacted not in an effort to correct design and layout deficiencies
in the park but in order to protect nearby single-family homeowners. (Williams, 1974., P. 504)
As density increases the amount of usable open space is diminished. How that open space functions can be compromised by both the uncoordinated design of mobile home spaces as well as the economic contraint imposed by that classic mobile home configuration. The long narrow shape of the singlewide mobile home presents difficult design questions. Generally, entrances on singlewides face the sideyard rather than the street. Turning homes parallel to the street clearly defines the entrance of the home but increases frontage requirements as well as land costs. The narrow lot which is relatively deep and set perpendicular or at an angle to the street is still the most common configuration. Parks designed for a greater percent of larger singlewides and doublewides appear very similar to those configurations on site built development plans. On smaller lots, side yard separations which average 17 feet between units, often become unusable for anything but creating conflicts with the neighbors over issues of privacy. On small lots front and rear yards typically do not exist. These conditions are being mitigated through improvements in design and layout as well as using techniques such as landscaping, zero lot line development, cluster parking and incorporating innovative design changes on the products
themselves. (Bernhardt, 1980, P. 250) Table 2 shows the average range of densities that the various residential types generate.
Housing Density, Units per Acre
House Type Density
Low Typical High
Single family 1 3 7
Mobile home 3 6 9
Town house 5 8 15
Walk-up apartment 15 20 30
(Source: Building Tommorrow, Bernhardt, P. 249)
In the recent past courts have upheld zoning ordinances which exclude mobile homes on the grounds that such development would place an undue burden on municipal and educational services of that community. Table 3 compares the number of school age children or children per acre for the different residential types.
People Density, Children per Acre
Typical Children Children
House Type Density (DU/AC) per Unit per Acre
Single family 3 1.5 4.5
Mobile home 6' 0 75 4 8 (family perks)
Town house 8 1.0 8
Walk-up apartment 20 0 5 10
(Source: Building Tommorrow, Bernhardt , P. 249)
Fron i the view of environmental impact, particularly on schools,
Table 3 shows that even at twice the density mobile home parks
would have a similar impact as a conventional single-family
project. (Bernhardt, 1980, P. 248) While park sizes have continued to grow there has been an overall decline in density. This decline is due to the increasing numbers of larger single wides and doublewides being introduced into the market. Current densities run typically between 5-7 homes per acre as compared to ten units per acre for older parks. A density of 6 units per acre will yield lots just under 6,000 square feet. (Bernhardt, 1980, PP. 247-248) A comparison to other densities are shown in below
in Figure 4*
Typical Lot Densities
(14 X 70 singlewide with patio cover and expandable room or deck)
Density: I unils/acr* 4oo m ft. tot
Density: ( umts/sers MOO sq tl. lot
Density: 4 unils/ecre 700 sq U. lot
(Source: Building Tommorrow, Bernhardt, P. 270)
; The impact of public regulation on developable land is significant. When regulation limits the amount of land which can be developed for mobile homes simple economics says that land cost^ will be driven up. Increased raw land costs become increased occupancy costs. The developer must set occupancy costs at a level which will not only repay the investment in the land, pay for improvements, but yield a profit as well. The developer will not purchase and spend the money for improvments if in so
doing (Bern mobil adequ park.
occupancy costs become so high as to be unmarketable, hardt, 1980, P. 34-5) Land use regulations which delegate e home development to undesirable locations and fail to set ate design standards contribute to a low quality of life in a (Bernhardt, 1980, P. 34-6)
"Subdivision controls, however, by addressing the root causes of hostility to mobile homes and by requiring the developer to create a park aesthetically and economically acceptable to the community, could positively affect the industry." (Bernhardt, 1980, P. 348)
Subdivision controls and PUD (Planned Unit Development) regulations which allow densities to be moved around can effect high quality mobile home development. These controls, properly used, can avoid the cookie cutter style of development and protect public objectives. (Bair, 1981, P. 24)
attri Yet, unima homes housi unwri princ impac 1981 conve
Past shortcomings of mobile home design have been butable to the long and narrow pink and silver box image.
just because product design has been unnecessarily
ginative in the past, there "is no inherent reason why such need be ugly." (Williams, 1974 P. 453) Appearances of ng is often based on standards which are governed by tten laws of tradition and economics. Departure from these iples, customs, and conventions are seen to have an adverse t on the integrity of single-family neighborhoods. (Bair, PP. 7-8) Bair has set down some of these unwritten ntions based upon what most people think a house should look
like in the following;
"1. The main body of the house should be a rectangle, not too narrow in its least dimension. Rectilinear form may be relieved by breaks in facade, and apparent size may be increased by adding an attached garage at the end.
2. The main roof should be pitched, rather than flat.
3. The house should appear to face the street. Usually, this means that the long axis will be parallel to the street.
4. The exterior walls should look like wood or masonary, regardless of their actual composition.
5. The main roof should appear to be shingled.
6. The foundation should form a complete enclosure under exterior walls.
7. Apparent bulk should be about the same throughout the neighborhood. There is no objection to an occasional larger house, but none should be permitted that look substantially smaller than the general run. Houses with relatively smaller residential floor areas may be accepted if attached garage or other space or other addtions make up the difference in apparent bulk.
8. There should not be weird colors, peculiar window designs, odd ornamentation, or excessive reflection from exterior finish.
9. Houses should look enough alike, but not too much alike." (Bair, 1981, PP. 7-8)
Recent improvements in product design has enabled the manufactured
housing industry to overcome difficult design problems imposed by
governmental regulation. The class A manufactured home conforms
to Bair's guidelines making its exterior appearance acceptably
similar to site built housing Mount Laurel II specifically struck down aesthetics as grounds for prohibiting manufactured housing.
The court stated that; "We recognize the propriety of aesthetic
considerations in zoning, but the subjective sensibilities of
present residents are not a sufficient basis for the exclusion."
(Jaffe, 1983, P. 8)
Transient Character of Occupants
There is a broad concensus in literature profiling today's mobile home occupant that refutes the obsolete characterization that such residents are transient. Demographic and consumer preferance surveys demonstrate that todays mobile home residents are extremely stable and desire to make a permanent contribution their communities. Chance is no longer a factor describing why people live in manufactured housing. A majority of occupants are owners and indicate a high level of satisfaction with their homes. The average family stays five years and will buy another manufactured home when they move. The literature is prolific and the conclusions are clear. (Bernhardt, 1980, PP. 24.1-24.2) Exclusion of manufactured housing on the grounds that occupants are transient is an unreasonable use of the police power.
Tax Base Issues
Under federal and state constitutional provisions taxation can be imposed upon the people. Taxation, which is a means of generating revenue, is subjected to limitations of due process, and the requirement that property taxation must be assessed in proportion to the value of the property, as entities of the state, local governments depend on realty taxes for their revenue. (Bernhardt, 1980, P. 355)
The revenue base of a local government is divided into land, structure, and personal property. (Lindholm, 1979, P. 119) Property tax is classified as real property which connotes durability and permanence, personal property which connotes
portability, and an "in lieu" tax which is item specific and is assessed in lieu of any realty or personalty tax. (Nutt-Powell, 1982, P. 116) The type of property taxation imposed on
manufactured housing is an important issue as it clearly can affect public acceptance. Public policy regarding manufactured housing, with few exceptions, rather than evolving out of progressive and deliberate dialogue has been salvaged out of bitter dispute, veiled in confusion and ignorance of the product. This confusion is not due to some inherent flaw found in the product, but due in part to the type of taxation imposed differentiating it from conventional housing. (Bernhardt, 1980, P. 370)
On this issue debate has turned into litigation revealing important judicial attitudes toward's manufactured housing. The question has centered around the issue of mobility and whether or not the home should be taxed as real or personal property.
"A large part of opposition to mobile homes undoubtedly stems from the widespread notion that such homes do not bear what is thought to be an appropriate share of the local real property tax burden, and so do not bear their fair share of the burden for municipal services." (Williams, 1974, P. $25)
Little imagination coupled with a bias for conventional housing seriously limits any forward looking policy which
recognizes other genuine housing alternatives. (Nutt-Powell, 1982,
Manufactured housing has been regulated, for taxation
purpojses, under four different systems. The following provides a brief discussion as to the advantages and disadvantages of each system.
Motor Vehicle Registration
jUnder this classification the mobile home legally becomes a motor vehicle under title. The mobile is subject to regulations and fee schedules of the state motor vehicle department. This practice was quite common in the 30's, and 4-01 s when travel trailers were purchased and used mainly or recreational or as temporary housing. (Bernhardt, 1980, P. 363)
The advantage of this method is that it is the least expensive administratively. The state collects the fees and the license stays with the unit, no additional administrative machinary is necessary. However, a license fee is considered a function of police power. Legally, the fee can reflect only the cost of regulation. An important disadvantage to the system is that license fees do not reflect the tax burden that property owneijs pay. The rate of the property tax is determined by the local mill levy. The revenues generated go directly to local coffers. Motor vehicle fees are determined by a bluebook method and go into the state treasury, bypassing local coffers. A serious shortfall of this method is that a bluebook value can not take into consideration any characteristics of the mobile home that might affect its resale value, such as home improvements or the quality of the neighborhood. (Bernhardt, 1980, P. 363) Fees designated for the state will be of little benefit to the rising costi of municipal services. Even if the state redistributes a percentage back to the local government, this system is not as visible as funds which go directly to the municipality.
A consequence of such a system can result in an exclusionary zoning policy which may have the effect of isolating mobile homes
outside the community. Public policy at the local level may exclude or highly restrict manufactured housing because they are not paying their fair share of the local tax burden. (Bernhardt, 1980, P. 367) The "fair share" controversy is a shallow argument and is more of a perception problem than an actual problem. Rarely does any form of housing, be it single family, multifamily, or manufactured housing, pay its fair share. All municipal districts run deficits and are subsidized by industrial, state or federal monies. (Bernhardt, 1980, P. 370)
Horizontal equity among all homeowners can not exist as long as manufactured housing is treated in a dissimilar manner from conventional housing. (Bernhardt, 1980, P. 367) Recognizing this lack of horizontal equity the Nebraska Supreme Court has ruled that; "mobile homes must be considered residences and not motor vehicles for taxing purposes." (Galetschky, 1981, P. 7) This landmark decision written by Chief Justice Norman Krivosha reversed a Douglas County District Court ruling which upheld the constitutionality of taxing mobile homes as motor vehicles. Justice Krivosha adds; "mobile homes are seldom mobile and resemble in all respects a residence." (Galetschky, 1981, P. 7)
An in lieu policy basically requires that a fee or tax be imposed on the mobile home for the privilege of being allowed into the municipality. This payment is considered in lieu of all other municipal taxes. (Bernhardt, 1980, P. 363) The in lieu classification has traditionally been limited to mobile home parks. A park pays a monthly tax collected by the park owner and
remitted to the local municipality. (Nutt-Powell, 1982, P. 116) The actual rate of charge can be calculated in various ways. A flat monthly rate, a value based on square footage, or a state established depreciation sschedule.
There are several advantages associated with this classification. The in lieu is not a redistribution of funds from the state, but a predictable and collectable minimum direct to the local coffers. Unlike the motor vehicle fee, the in lieu is a tax and therefore is not limited as a regulatory device. Because the in lieu tax is paid directly to the local assessing unit it is not as likely to generate hositility over a fair share controversy. A real disadvantage, as in the motor vehicle fee, this classification is not a good method for reflecting differences in the values of mobile homes.
A fundamental difference in this method is that an in lieu tax is determined on a pro-rated, or on the basis of benefits received. Conventional housing is taxed on an ad valorem, or in proportion to value basis. This is a fundamental split which stands as a primary reason as to why there does not exist a greater integration between manufactured and conventional housing. Potential mobility is an unjustified rational for this split. (Bernhardt, 1980, P. 363)
Personal Property Tax
Property which is not real, embraces all things which can be associated with portability is called personal property. Personal property taxation is used solely or in combination with other
types of taxation to tax manufactured housing. Personal tax may represent a more flexible system administratively, yet there currently are no successful methods for accurately assessing mobile homes as personal property. Current methods are not responsive to variations in models and year of mobile homes. Asessors often lack the appropriate training and familiarity to determine a rate of depreciation or appreciation. Depreciation of a mobile home is either a result of economic obsolescence or a change in environmental conditions. (Bernhardt, 1980, P. 365) Similar to both motor vehicle and in lieu, a personalty tax uses a bluebook method to calculate depreciation, based on a state-wide formula. To overcome this disadvantage would require a case by case assessment practice similar to the real property method. A real property assessment would bring uniformity and horizontal equity to the manner in which residential dwellings are assessed.
"According to a survey by a New Jersey commission, about 4-0 states tax at least some mobile homes as personal property rather than as real estate. And for most of these states, that translates into less revenue."
(Wall Street Journal, Nov. 26, 1980, P. 29)
Real Property Tax
Property that is fixed, permanent and immobile, such as land and buildings, is defined as real property. (Bernhardt, 1980, P. 365) Real property taxation is the most widely used form of taxation as well as being the most important source of revenue. Taxation of mobile homes as real property would subject homes to the type of case by case appraisal, resulting in a more accurate evaluation of the worth of mobile homes. (Bernhardt, 1980, P. 366) A uniform taxation would also increase horizontal equity and
reduce exclusionary policy which effects a physical and social isolation.
Imposition of a real property tax will increase occupancy costs in the form of higher taxes. A good example of this appeared in the February 6th edition of The Denver Post which was headlined, "Mobile-home tax soars up to 250%." The article stated that the Colorado State Legislature in 1983 changed the taxing formula for mobile homes from one based on personal property to a real estate assessment. The result for over 13,000 mobile home owners in Adams County, Colorado was an increase of property taxes ranging between 150% to 250%. Taxes in the county under the old system were relatively low about $75 on an older doublewide with an original purchase price of under $8,000. Under the new system the taxes on that home increased to $160. The Adams County assessor noted in the article that despite the new formula property taxes on site built homes are still three to four times higher. (The Denver Post February 6, 1985) An important trend to recognize is that those municipalities that are dependent on property taxes for their revenue will have "a greater propensity to exclude mobile homes if it is in a state where mobile homes are not subject to property tax." (Bernhardt, 1980, P. 338)
Staying within the framework of this summary I believe some final thoughts can be best sorted out if we shift gears. Instead of trying to package a neat set of definite statements and leave it at that, my desire would be to encourage further discussion by raising a couple of questions. This paper dealt with the issue of zoning, put it on a continum between Euclid and Mount Laurel II, and discussed the affect of judicial attitudes on directing the
continum. I believe the esstential question which emerges from this contium is, to what extent Mount Laurel II impinges upon the validity of zoning as an effective device to control the ordered development of land uses. In other words, can't zoning continue to be justified on a basis that is sufficient to authenticate the validity of the concept? (Ellickson, Tarlock, 1981, P. 632)
Today's conventional zoning ordinance is based on state enabling legislation which was upheld in Euclid (1926). On the road from Euclid to Mount Laurel II, sign posts erected by Euclid use broad language such as arbitrary, unreasonable, fairly debateable, and presumption of validity. There is concern as to just how much direction Euclid provides in a contemporary setting. Does Euclid continue to justify unnecessarily broad and overly restrictive ordinances with such language, or is it necessarily broad to provide flexibility to adapt to changing needs and convicitions? (Allensworth, 1981, P. 4-7) Euclid upheld the
segregation of land uses on grounds of an earlier time and context. The rational for degregation was that it made it,
"easier to provide fire protection suitable to each and will greatly tend to prevent street accidents, especially to children. It also suggested that by way of a health benefit, the lower level of noise in residential neighborhoods will help alleviate nervous disorders." (Allensworth, 1981, P. 48)
The function of our legislature is one that formulates public policy and enacts laws that implement the policy. Traditionally the courts have not intervened in legislative matters unless an issue arises on the application of thos laws. (Rose, 1980, P. 29) Judicial attitudes have changed dramatically to the point that the courts are reversing the presumption of validity, invalidating
exclusionary ordinances, and imposing requirements for affirmative municipal action. The court as policy maker has followed legislative default and has resulted in the courts having significant leverage over land use controls.
The court system has a long history of intervention upholding the rights of the disadvantaged. The courts in the past have been an advocate of reform acomplishing socially desirable goals. Such intervention has always been justified by a moral position which Americans basically support.
Yet the reality of this long and worthy role has to do with the state having sufficient funding to pay for those reforms.
Given significant across the board cutbacks, what happens to court orders when there are no funds to carry out the orders? Do the courts truely have unlimited power to require public officials to recognize housing needs of low and moderate income people? "For the near future, humanitarian courts will not be up against political indifference and inertia, but rather purposeful, deliberate budget decisions." (The Denver Post, Nov. 22, 1981)
While Mount Laurel II may not have been upheld in the federal courts at the time it was heard there are those that feel that it would be upheld today. It is apparent, based on legislation as recent as January of 1985 that the ripple affect from Mount Laurel II diminishes significantly by the time it reaches Colorado. It seems that for Colorado, Mount Laurel II will always be a New Jersey case with its resulting doctrines intended for New Jersey alone. That is not to say that attitudes in the legislative and regulatory environments have stayed on dead center. I believe
attitudes are changing with respect to manufactured housing. It is also clear that while Mount Laurel II has not opened any doors to manufactured housing in Colorado there are some very important doors which this sector of the housing industry can and should be taking more advantage of.
One very important door of opportunity, which I believe will have a greater net result in the long run for manufactured housing, is the financial communities endorsement of the product. Typically characterized as conservative and the last ones to get involved in something new, the financial community has reassessed its past lending policies with regard to manufactured housing. Motivation for such action was not solely based on some humanitarian obligation to solve the nation's housing crisis. Rather, motivation was based upon recognition that the manufactured housing industry was the fastest growing sector of the housing industry and that innovations within the industry presented themselves as reasonable risks. The financial community recognized that the industry was producing homes built to higher standards of quality and performance and that those homes had sufficient tenure and durability to outlast the life of the loan. Finally, it was recognized that past lending policies were not designed to compliment the home being financed. The manufactured housing industry should take full advantage of this opportunity in promoting its product to public decision makers and first time homes buyers. Not only should availability be recognized as being real benefit for the homebuyer but more importantly, as compared to site built housing, how that's going to sort out in actual monthly payments.
At the same time a second opportunity that the industry should be taking advantage of is initiating lines of communication
the regulatory environment. The industry lacks a solid egy for selling its homes to the regulatory environment, rs of the city councils and county commissions need to be appraised of the potentials and opportunities that ctured housing industry must ensure that when decision s cast their vote have more than adequate justification to ve a proposed manufactured housing development in the face of ition from their constituents. Such strategies must address ly and professionaly those issues which most likely will be d in opposition to such development. A successful strategy minimum should address the following:
1. Affordability of manufactured housing.
2. Increased quality of manufactured homes as a result of governmental controls.
3. Design and layout innovations of manufactured housing subdivisions. This factor should address issues of density, parking, open space and issues of privacy. Attached garages can improve the architectural feel as well as providing for off-street parking and storage.
U- A successful strategy must address issues that arise given different scales of development.
$. Creative techniques to set up a demonstration community based on other successful developments in the local area if possible.
housi chea Stree
A third opportunity that the industry should recognize is the for a different marketing strategy. Displaying manufactured ng in the same environment that one would go to for a used p heap" does not lend itself to successsful marketing, t dealers displaying manufactured homes perched on cinder
blocks in asphalt yards re-enforce past images of trailer park living. Manufactured homes set in display environments which approximate an actual home on a developed lot would provide more positive public visibility.
While all of these recommendations differ, what they have in common is putting the manufactured home in a more conventional framework. As manufactured housing becomes less distinguishable from conventional site built housing it will become a more accepted residential form.
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