State and Federal Preemption in the Mobile Home Arena: What Can Local Governments Truly Regulate?
It is common to find city or county land development regulations that discriminate against mobile homes as compared to conventionally built structures or manufactured buildings. Such regulations may limit where mobile homes must be located, impose differing architectural standards on mobile homes only, require special permits for the moving of mobile homes, or limit mobile homes of a certain age. This article will examine the validity of such regulations under federal and Florida law.1
As a preliminary matter to the issues being discussed, it is important to understand the definitions of and differences between conventional housing and manufactured housing. Manufactured housing is further subdivided into categories of mobile homes and manufactured buildings.2 O rdinances and the courts use these terms interchangeably sometimes, but there are significant differences.3 C onventional housing, often referred to as stick-built housing, is that which is constructed at the site, and which is required to meet the requirements of the Florida Building Code. Agents of local government usually handle permitting and inspections. Manufactured housing, on the other hand, is built in a factory and transported, in one or more pieces, by truck or other means to the final site where it is assembled.4 State or federal officials handle permitting and inspections and there is limited local review, usually limited to installation and tie-down requirements. The term “mobile home” usually refers to a type of manufactured housing which has been permitted and constructed according to regulations of the U.S. Department of Housing and Urban Development.5 These regulations are contained in the National Manufactured Housing Construction and Safety Standards Act of 1974, 42 U.S.C. §§5401-5426 (2002) and the regulations adopted pursuant to 24 C.F.R. 3280-3282 (2002). The term “manufactured building” usually refers to a type of manufactured housing that has been permitted and constructed according to regulations of a state agency. In Florida this agency is the Department of Community Affairs in accordance with F.S. Pt. IV, Ch. 553 and Fla. Admin. Code Ch. 9B-1.
Local regulation of mobile homes has often been challenged on the basis that such regulation is preempted by the National Manufactured Housing Construction and Safety Standards Act. In addition, equal protection and due process arguments as well as dormant Commerce Clause claims are often asserted in these challenges.
Two older cases from Florida in the 11th Circuit discussed ordinances that banned mobile homes from certain zoning districts. In Scurlock v. City of Lynn Haven, 858 F.2d 1521 (11th Cir. 1988), the city ordinance imposed a zoning regulation which excluded any home not meeting the Southern Standard Building Code, the National Electrical Code, and the Electrical Code of the City of Lynn Haven or not bearing the seal of the Florida Department of Community Affairs.6 The city ordinance allowed mobile homes in unzoned areas of the city and in special mobile home districts.7 The ordinance was challenged on both state and federal preemption grounds. In ruling that the city ordinance contained greater safety requirements for mobile homes than the federal law and had to give way to the federal law,8 The court cited 24 C.F.R. 3280.2(a)(18):
No state or locality may establish or enforce any rule or regulation or take any action that stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The test of whether a state rule or action is valid or must give way is whether the state rule can be enforced or the action taken without impairing the federal superintendence of the [mobile] home industry as established by the act.9
H owever, the court also determined that the city could, if it wished, utilize zoning regulations other than safety regulations to regulate the location of mobile homes and said: “Undoubtedly it could limit Zone R-AA to conventionally-built residences and exclude mobile homes.”10 The Scurlock court also went on to consider state law preemption, but its opinion will be discussed later in this article.
At about the same time that Scurlock was in the trial court, the 11th Circuit decided the case of Grant v. Seminole County, 817 F.2d 731 (11th Cir. 1987). In Grant, the county ordinance allowed mobile homes in some zoning districts, but not others, while manufactured homes were allowed in all.11 The case was decided on federal grounds only; the trial court dismissed the state court claims without prejudice and the 11th Circuit upheld this ruling, indicating that the trial court could decide not to exercise jurisdiction over a novel question which was by no means clear cut12 and: “[T]he district court’s order specifying that the dismissal was ‘without prejudice’ left plaintiffs free to pursue their state law claim in the Florida courts. We agree that those courts, rather than the federal district courts, are the appropriate fora for that claim.”13
Of course, the Scurlock court did not have the benefit of that reasoning when it did decide the state court issues since it issued its opinion nine months prior to the Grant decision. The plaintiff in Grant sued, claiming that the Seminole ordinance violated the plaintiff’s 14th Amendment rights to substantive due process and to equal protection.14 The parties stipulated that the standard to make the determination is rational basis since a fundamental right or suspect classification was not involved.15 The court ruled in the county’s favor, saying:
It is “not the function of federal district courts to serve as zoning appeal boards (citations omitted).” The law is well settled that legislated zoning ordinances are permissible, constitutional uses of police power and are not reviewable by district courts unless they are “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”16
The court also indicated that zoning regulations are presumed constitutionally valid and concluded that the Seminole County standards were rationally related to the public health, safety, and welfare goals and also not arbitrary or unreasonable.17
A later 11th Circuit case, Georgia Manufactured Housing, 148 F.3d 1304 (11th Cir. 1998), considered Spaulding County zoning regulations that required mobile homes to have a roof pitch of at least 4:12 (measured as the ratio of the roof’s rise to its horizontal run).18 The ordinance also required such homes to have a width greater than 16 feet, to have shingles on the roof, to have exterior siding similar to common residential construction, to have the area underneath the home enclosed by a masonry curtain wall, and to have the wheels and other transportation apparatus removed.19 The trial court struck down the requirement of the pitched roof and awarded damages in favor of the plaintiff pursuant to 42 U.S.C. §1983. The 11th Circuit reversed and the court considered substantive due process and equal protection, preemption, and Commerce Clause arguments. The court dismissed out of hand a Fair Housing Act, 42 U.S.C. §§3601-3631, challenge.20 On the substantive due process and equal protection claim, the court ruled that the rational basis test applied which requires a two-pronged inquiry.21 The court described the test:
The first step. . . is identifying a legitimate government purpose—a goal—which the enacting government body could have been pursuing. The actual motivations of the enacting governmental body are entirely irrelevant. . . . The second step. . . asks whether a rational basis exists for the enacting governmental body to believe that the legislation would further the hypothesized purpose. The proper inquiry is concerned with the existence of a conceivably rational basis, not whether that basis was actually considered by the legislative body.22
The court determined that the prongs were met because the county could be pursuing the goal of “aesthetic compatibility” and the 4:12 requirement would advance that goal. Thus, the due process and equal protection claims failed.
On the Commerce Clause claims, the court analyzed these claims as dormant Commerce Clause claims since the ordinance imposed the same burdens on in-state and out-of-state business. Ultimately, the court ruled that the Commerce Clause was not violated because in addition to being nondiscriminatory, the relevant burden on interstate commerce is “negligible and not clearly excessive in relation to the putative local benefits of the 4:12 requirement.”23
In considering the federal preemption claim, the court held that the 4:12 requirement was not preempted because it was not a construction or safety standard, but an aesthetic requirement. The court discussed the Scurlock case and the federal regulations in depth.
More recent district court opinions, including one that was upheld by the 11th Circuit, reiterate the law. In Burton v. City of Alexander City, 2001 WL 527415 (M.D. Ala., Mar 20, 2001), the court upheld an ordinance that restricted mobile homes to certain zoning districts against preemption, due process and equal protection, and state law claims. In CMH Mfg., Inc. v. Catawba County, 994 F. Supp. 697 (W.D.N.C. Feb. 11, 1998), an ordinance was upheld which required exterior siding and roof shingles of a type commonly used in standard residential construction on single-wide mobile homes considering federal preemption, Commerce Clause, and substantive due process and equal protection claims.
Thus, it appears clear that under federal law, ordinances that discriminate against mobile homes will be upheld unless the ordinances are based on construction or safety standards which are contained in the federal act.
Courts have ruled that state preemption of local regulation results where the legislature has expressly preempted the particular area of law.24 H owever, failure of the legislature to expressly preempt an area of law does not in and of itself validate a local ordinance.25 The theory of implied preemption results where the local regulation and the state regulation cannot coexist without a violation of the state law.26
When discussing the area of mobile home regulation in Florida, the legislature has indicated its intent to expressly preempt local regulation to the extent of construction standards. F.S. §320.8285(5) states that:
[t]he [Department] shall enforce every provision. . . adopted pursuant thereto, except that local land use and zoning requirements, fire zones, building setback and side and rear yard requirements, site development and property line requirements, subdivision control, and onsite installation requirements, as well as review and regulation of architectural and aesthetic requirements, are hereby specifically and entirely reserved to local jurisdictions. . . . Such local requirements and regulations and others for manufactured homes must be reasonable, uniformly applied and enforced without distinctions as to whether such housing is manufactured, located in a mobile home park or a mobile home subdivision, or built in a conventional manner.27
A lthough this particular provision has never been litigated in state court, the 11th Circuit did discuss the provision in the Scurlock case. On the state level, the issue surrounding the Scurlock’s mobile home revolved around the fact that the mobile home did not meet the Lynn Haven building code as required, although the mobile home was built in compliance with HUD regulations. The court stated that although the Florida Legislature has reserved to local governments the power to zone, significant restrictions on that power have been put into place.28 When zoning these types of structures, local governments must apply regulations uniformly and must enforce those regulations without regard to whether housing is manufactured, located in a mobile home park, or built in a conventional manner. According to the court, the Lynn Haven zoning regulations directly conflicted with the state law as the zoning regulations excluded only products or techniques used in constructing mobile homes,29 and therefore, such regulations were not being uniformly applied to different kinds of construction.
A similar provision to that of F.S. §320.8285 that has been litigated in state court exists in F.S. Pt. IV, Ch. 553, entitled “Manufactured Buildings.”30 It is important to note that Florida law does not classify both mobile homes and manufactured buildings under a single classification of manufactured housing.31 R ather, F.S. §553.36(12) states that Pt. IV does not apply to mobile homes, with mobile homes being defined as any residential unit constructed to standards promulgated by the U.S. Department of Housing and Urban Development.32 M anufactured building is then defined as a closed structure, building assembly, or system of subassemblies to be used as residential, commercial, institutional, storage, and industrial structures.33 F. S. §553.38 reads as follows:
The [Department] shall enforce every provision of the Florida Building Code adopted pursuant hereto, except that local land use and zoning requirements, fire zones, building setback requirements, side and rear yard requirements, site development requirements, property line requirements, subdivision control, and onsite installation requirements, as well as review and regulation of architectural and aesthetic requirements, are specifically and entirely reserved to local authorities. Such local requirements and rules which may be enacted by local authorities must be reasonable and uniformly applied and enforced without any distinction as to whether a building is a conventionally constructed or manufactured building.34
In Campbell v. Monroe County, 426 So. 2d 1158 (Fla. 3d DCA 1983), Monroe County enacted an ordinance that required masonry construction to the roofline for all single-family dwellings located within the RU-1M zoning district. The Campbells filed a suit upon receiving notification from the county building department that their application to construct a manufactured home on property zoned RU-1M had been rejected. The county argued that it was well within its police powers to enforce land use requirements, including aesthetic standards, not to mention that F.S. §553.38 specifically stated that aesthetic standards were reserved to local authorities.
The court ultimately held that this provision of the Monroe County Code was void as applied to the Campbells because the zoning regulation, although couched in terms of aesthetics, in fact regulated the products or techniques used in factory-built housing.35 Further, the county’s own building official admitted that the masonry requirement did not further the goal of aesthetics because the structural construction of the modular homes, if done correctly, looked the same as the masonry construction.36 B oth F.S. §§320.8285 and 553.38 contain language that states that local requirements for manufactured and mobile homes must be reasonable, uniformly applied, and enforced without distinctions as to whether the housing is manufactured, located in a mobile home park, or built in a conventional manner. Therefore, the Monroe County ordinance was preempted by state law.37
Approximately 19 years after Campbell, the Fifth District Court of Appeal had the opportunity to again consider the provisions of F.S. §553.38. In Marion County v. Department of Community Affairs, 2002 WL 1232577 (Fla. App. 5 Dist.), Marion County passed an ordinance that permanently prohibited manufactured housing in R-1 zoning districts based on aesthetic concerns. The Department of Community Affairs challenged the ordinance on the grounds that it violated F.S. §553.38,38 and Marion County countered with a claim that the statutory section was “unconstitutionally vague and ambiguous because it is internally contradictory and provides the. . . [Florida Department of Community Affairs] with unlimited enforcement authority to determine whether Marion County’s requirements and rules are reasonable.”39 A fter considering all the arguments, the court found Marion County’s ordinance to have violated the provisions of §553.38, stating:
The Florida Legislature has made it clear in section 553.38 that it is the policy of the state that manufactured buildings may not be the subject of discrimination by local authorities. . . . The legislature seems to have recognized that appearance is important and has reserved the right to local authorities to enact architectural and aesthetic requirements uniformly applicable to all building methods. There has been no attempt by Marion County to exercise those rights reserved to local authorities in the statute.40
The Florida Legislature has expressly preempted local governments in the area of construction standards for mobile home and manufactured buildings.41 The legislature has additionally gone one step further by stating that any other local regulations involving mobile homes or manufactured buildings must be reasonably and uniformly applied and enforced without any distinction as to whether the building is conventionally built or manufactured. The courts have interpreted this additional language as an implied preemption that prevents local governments from imposing restrictions on mobile home or manufactured buildings solely because the structure is not conventionally built. Therefore, local governments must enact regulations that treat all types of housing equally.
Effect on Local Governments in Florida
A sampling of counties in Florida indicates that several had restrictions on the placement of mobile homes.42 L eon County43 and Marion County,44 for example, have adopted local regulations that govern the aesthetic appearances of residential structures, rather than delineating zoning districts on the type of construction. Both counties have incorporated into their codes requirements for construction that include minimum lot sizing in certain zoning districts, requirements which indicate which way a structure must face on the lot, and regulations such as specified roof pitches, all of which comply with the Florida Statutes because the zoning regulations are uniformly applied to all construction methods and are enforced without distinction as to whether the housing is manufactured, located in a mobile home park, or built in a conventional manner.
In Lake County45 and Brevard County46 m obile homes are restricted to certain zoning classifications. For instance, in Lake County, mobile homes are restricted to Mixed Residential Districts (R-7), Mobile Home Rental Park Districts (RMRP), and Mobile Home Residential Districts (RM), with some limited exceptions in other zoning districts.
It seems clear, then, that regulations in those counties and municipalities that restrict mobile homes or manufactured homes to certain zoning districts or that otherwise impose restrictions on mobile homes or manufactured houses that are different from conventional stick-built housing will not be upheld against challenge. If a county or municipality in Florida wishes to adopt regulations which impact the placement and location of mobile homes or manufactured buildings, such regulations must be uniformly applied to all construction methods and be enforced without distinction as to whether the housing is manufactured, located in a mobile home park, or built in a conventional manner.
1 In preparing for this article, the authors reviewed code provisions from Pinellas County, Lee County, Brevard County, Hillsborough County, Sumter County, Polk County, Charlotte County, Citrus County, St. Johns County, Lake County, and Alachua County.
2 The term “modular building” is also used.
3 Georgia Manufactured Housing Ass’n v. Spalding County , 148 F.3d 1304, 1306 n.1 (11th Cir. 1998); Burton v. City of Alexander , 2001 WL 527415, *4 n.17 (M.D. Ala. March 20, 2001).
4 Scurlock v. City of Lynn Haven , 858 F.2d 1521, 1522 n.2 (11th Cir. 1988).
5 Grant v. Seminole County , 817 F.2d 731, 733 (11th Cir. 1987); Georgia Manufactured Housing , 148 F.3d at 1306 n.2.
6 Scurlock , 858 F.2d at 1522.
7 Id . at 1523.
8 Id . at 1525.
9 Id. at 1525 (emphasis added).
10 Id . at 1525.
11 Grant , 817 F.2d at 733.
12 Id . at 732.
13 Id. at 732.
14 Id . at 735.
15 Id .
16 Id. at 736.
18 Georgia Manufactured Housing , 148 F.3d at 1306.
19 Id . at 1306.
20 Id .
21 Id . at 1307.
23 Id . at 1308.
24 Scurlock , 858 F.2d 1521.
26 Id. ; Jordan Chapel Freewill Baptist Church v. Dade County , 334 So. 2d 661 (Fla. 3d D.C.A. 1976).
27 Fla. Stat . §320.8285(5) (2001).
28 Scurlock , 858 F.2d at 1526.
29 Id . at 1527.
30 Fla. Stat . §553.38 (2001).
31 Fla. Stat . pt. IV, ch. 553.
32 Fla. Stat . §§553.36(12), (13) (2001).
33 Fla. Stat . §553.36(12) (2001).
34 Fla. Stat . §320.8285(5) (2001).
35 Campbell , 426 So. 2d at 1161.
36 Id . at 1160.
37 Id . at 1160 (stating that the Monroe County ordinance was void as applied because it effectively discriminated against factory-built housing in violation of state statutes).
38 The Department of Community Affairs is responsible for the enforcement of the Florida Building Code pursuant to Fla. Stat . §553.38, pertaining to manufactured buildings. The Department of Highway Safety and Motor Vehicles is responsible for the enforcement of Fla. Stat . §320.8285, pertaining to mobile homes.
39 Marion County v. Department of Community Affairs , 2002 WL 1232577 at 2; Fla. Stat . §320.8285(5) (2001).
40 Marion County , 2002 WL 1232577 at 2.
41 Fla. Stat . §553.38 (2001).
42 Pinellas County, Lee County, Brevard County, Hillsborough County, Sumter County, Polk County, Charlotte County, Citrus County, St. Johns County, Lake County, Alachua County.
43 Leon County, Fl., County Code, Chapter 10, Article XVII (2000).
44 Marion County, Fl., Ordinance 01-34 (December 18, 2001).
45 Lake County, Fl., County Code, Section 3.04.01(1996).
46 Brevard County, Fl., County Code, Section 62-1401(1998); Brevard County, Fl., County Code, Section 62-1402(2000); Brevard County, Fl., County Code, Section 62-1403(2000); Brevard County, Fl., County Code, Section 62-1404 (1999); Brevard County, Fl., County Code, Section 62-1405(2000).
Sanford A. Minkoff has been the county attorney for Lake County since 1995. He is a member of the Lake County Bar, the Administrative Law, City, County and Local Government Law, Environmental and Land Use Law, and Labor & Employment Law sections of The Florida Bar. He holds a B.S. and a J.D. from the University of Tennessee, and has been board certified in city, county and local government law since 1997.
Melanie N. Marsh has been an assistant county attorney for Lake County since 1998. She is a member of the Lake County Bar, the City, County and Government Law Section and Business Law Section of The Florida Bar. She holds a B.S.W. from the University of Central Florida and a J.D. from Stetson College of Law.
This column is submitted on behalf of the Environmental and Land Use Law Section, Maribel N. Nicholson-Choice, chair, and Robert Manning, editor.