State and federal preemption in the mobile home arena: what can local governments truly regulate?

• Jurisdiction: United States
• Date: 01 February 2003
• Author: Minkoff, Sanford A.,Marsh, Melanie N.
• Published date: 01 February 2003
• Author: Minkoff, Sanford A.

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) Ordinances and the courts use these terms interchangeably sometimes, but there are significant differences. (3) Conventional 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. [subsection] 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.

Federal Law

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)

However, 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 cut (12) 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...