NC Planning

Manufactured Housing and Zoning

David W. Owens, Professor, Institute of Government, The University of North Carolina at Chapel Hill, CB# 3330, Knapp Building, UNC-CH, Chapel Hill, N.C. 27599-3330
May 1998

State law allows local governments to regulate the location, appearance, and dimensions of manufactured housing, but prohibits the total exclusion of manufactured housing from an entire jurisdiction. Federal law also preempts local construction and safety standards for manufactured housing.

Many local governments in North Carolina have long included special restrictions on manufactured housing in their zoning ordinances.[1] The restrictions are often applied to units constructed in a factory and built to the uniform national standards promulgated by the U. S. Department of Housing and Urban Development for manufactured homes.[2] Many ordinances do not apply the same restrictions to factory built housing that is built to State Building Code standards (the latter units are generally referred to as “modular” homes rather than “manufactured” homes). The modular units are often, but not always, treated as the equivalent of site built homes for zoning purposes.

Two key cases set the judicial bounds to regulation of manufactured housing in North Carolina. In Town of Conover v. Jolly[3] the court ruled that an ordinance completely barring mobile homes for residential use within the entire town was invalid. In Duggins v. Town of Walnut Cove[4] the ordinance prohibited a “mobile home” in a residential zoning district but allowed “modular” and site-built homes of similar dimensions to be used. The court upheld the ordinance as validly regulating the location of various types of structures. The court ruled that given the presumption of validity, the city had only to establish that the ordinance was rationally related to any legitimate government objective. The protection of property values was such a legitimate objective, and the council could determine that the method of construction was a factor in affecting the price of homes.

G.S. 160A-383.1, which was added to the statutes in 1987[5] and is applicable to both cities and counties, largely codifies the standards reflected in these cases. It directs local governments to consider allocating more land to siting manufactured housing as a way of providing additional affordable housing in the state. Under the statute, local governments may regulate the location, the appearance, and the dimensions of manufactured homes, but may not exclude such homes entirely from their zoning jurisdiction.

Typical zoning requirements that have been adopted in North Carolina include limiting manufactured housing to specified zoning districts[6] or to manufactured home parks[7] (which often can be located only in special overlay zoning districts).[8] Other ordinances only allow units of at least a certain size to be located in specified districts.[9] It is also common for ordinances to include special provisions regarding replacement and repair on nonconforming manufactured housing units.[10] Many ordinances also include various appearance standards to integrate the units aesthetically into surrounding neighborhoods with site built homes. These typically include requiring a pitched roof, skirting around the underside of the unit or location on a permanent foundation, and orienting the unit to the front of the lot. Such appearance standards were upheld in CMH Manufacturing, Inc. v. Catawba County.[11] The county required lap siding, minimum roof pitch, and shingled roofs for single-wides. Other county requirements that were not challenged included installation of a deck or porch, removal or screening of travel hitches, orientation on the lot, and brick underpining or skirting for double-wide units. The court held these were permissible “appearance” standards rather than preempted “construction and safety” standards.

It should be noted that regulations on manufactured housing cannot distinguish between owner occupied and rental units. Zoning powers may not be used to control the ownership of property (as opposed to its use)[12] or be based on the identity of the users of the property. In Gregory v. County of Harnett[13] the court invalidated a rezoning that moved the property from a district that allowed manufactured home parks to one that did not. The court held the rezoning was arbitrary when the record disclosed that it was based on undocumented concern about crime from residents of manufactured home parks and the “type of people” who reside therein, with no evidence showing any consideration of the character of the land, the suitability of the land for various uses, the provisions of the plan, or changing conditions in the area.

There has also been considerable litigation in the state regarding the interpretation of private restrictive covenant provisions related to mobile homes and manufactured housing. However, these covenants are private agreements between the property owners involved. The interpretation, administration, and enforcement of these covenants does not affect zoning regulations.

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1.

See, e.g., City of Raleigh v. Morand, 247 N.C. 363, 100 S.E.2d 870 (1957), appeal dismissed, 357 U.S. 343 (1958) (upholding ordinance prohibiting trailer parks within residential districts in the city’s one-mile extraterritorial area).

2. National Manufactured Housing Construction and Safety Standards Act of 1974, 42 U.S.C. §§ 5401 to 5426. Federal construction and safety standards preempt the authority of states and local governments any other construction and safety standards. 42 U.S.C. § 5403(d). Scurlock v. City of Lynn Haven, 858 F.2d 1521 (11th Cir. 1988); Colorado Manufactured Housing Assoc. v. Board of County Comm’rs, 946 F. Supp. 1539 (D. Colo. 1996), later proceeding sub nom., Colorado Manufactured Housing Assoc. v. City of Salida, 977 F. Supp. 1080 (D. Colo. 1997). The regulations regarding preemption are set forth in 24 C.F.R. § 3282.11(a) (1997).

Many zoning ordinances establish sub-categories of manufactured housing and apply differential standards to each (e.g., Class A manufactured homes are allowed in some districts, Class B in others). See N. C. LEAGUE OF MUNICIPALITIES, N.C. ASSOC. OF COUNTY COMMISSIONERS, N.C. MANUFACTURED HOUSING INSTITUTE, MANUFACTURED HOUSING: ZONING ALTERNATIVES TO ADDRESS NORTH CAROLINA HOUSING NEEDS (Sept. 1988) for an example of such classification. Care such be exercised in the criteria used for such distinctions. Legitimate factors include those constructed after the HUD standards went into effect (1976), and the size of the unit. The court in White v. Union County, 93 N.C. App. 148, 377 S.E.2d 93 (1989), reviewed an ordinance that limited the use of mobile homes as residences to those built after 1976 or valued at more than $5,000. The court expressed some doubt about the county’s statutory authority for the monetary value requirement.

3. 277 N.C. 439, 177 S.E.2d 879 (1970). The court ruled the mobile home ordinance, which was not part of the zoning ordinance, was beyond the town’s delegated police powers, for mobile homes were not a nuisance per se nor a detriment per se to public health, morals, comfort, safety, convenience, and welfare.

4. 63 N.C. App. 684, 306 S.E.2d 186, rev. denied, 309 N.C. 819, 310 S.E.2d 348 (1983), cert. denied, 466 U.S. 946 (1984).

5. 1987 N.C. Sess. Laws, ch. 805.

6. City of Asheboro v. Auman, 26 N.C. App. 87, 214 S.E.2d 621, cert. denied, 288 N.C. 239, 217 S.E.2d 663 (1975) (upholding injunction to prohibit continued use of a mobile home-even though the wheels and the tongue of the unit had been removed and it was placed on a permanent foundation-moved into a zoning district that did not allow mobile homes); Town of Mount Olive v. Price, 20 N.C. App. 302, 201 S.E.2d 362 (1973) (upholding injunction compelling the removal of a mobile home located in violation of the zoning ordinance).

7. County of Currituck v. Upton, 19 N.C. App. 45, 197 S.E.2d 883 (1973) (upholding an order to remove of a mobile home from a zoning district that did not permit individual units outside a park); State v. Martin, 7 N.C. App. 18, 171 S.E.2d 115 (1969), cert. denied, 276 N.C. 184 (1970) (upholding conviction for violation of an Ahoskie ordinance limiting the location of mobile homes to mobile home parks). See also Texas Manufactured Housing Assoc., Inc. v. City of Nederland, 101 F.3d 1095 (5th Cir. 1996, cert. denied, 117 S.Ct. 2497 (1997) (upholding prohibition of location of “trailer coaches” that meet HUD standards from locations outside of approved parks).

8. Creation of a zoning district to allow location of manufactured home parks can be challenged as unlawful spot zoning. In Alderman v. Chatham County, 89 N.C. App. 610, 366 S.E.2d 885, rev. denied, 323 N.C. 171, 373 S.E.2d 103 (1988), the court held a the rezoning of a 14.2-acre tract from an agricultural to a mobile home district invalid as impermissible spot and contract zoning. The rezoned parcel was in the midst of a 500-acre area zoned for agricultural uses, but was adjacent to a 16-acre parcel already zoned for mobile homes. The court found no “clear showing of a reasonable basis” for the rezoning. Similarly, in Stutts v. Swaim, 30 N.C. App. 611, 228 S.E.2d 750, rev. denied, 291 N.C. 178, 229 S.E.2d 692 (1976), the court invalidated the rezoning of a 4-acre tract in Randleman’s extraterritorial area from a single-family residential district to a mobile home district because there was no showing of a reasonable basis for the action.

9. Currituck County v. Willey, 46 N.C. App. 835, 266 S.E.2d 52, rev. denied, 301 N.C. 234, 283 S.E.2d 131 (1980). In this case the court upheld a provision prohibiting mobile homes of dimensions less than 24' x 60' in a single-family zoning district. The court ruled that mobile homes were sufficiently different from other types of housing that a rational basis existed for differing requirements such as this dimension standard.

10. See, e.g., Forsyth County v. York, 19 N.C. App. 361, 198 S.E.2d 770, rev. denied, 284 N.C. 253, 200 S.E.2d 653 (1973) (upholding requirement that changes in nonconforming uses and mobile homes in certain districts be authorized by special use permits). Care is necessary in drafting the precise terms of such limitations. See In re Hensley, 98 N.C. App. 408, 390 S.E.2d 727 (1990), a case involving the Town of Cramerton’s zoning ordinance. The court ruled that where the ordinance provided that a nonconforming use might not be reestablished after it had been discontinued for 180 days, a nonconforming use could be reestablished if done in less than that time. In this instance a mobile home had been removed from a lot in a zone that did not allow mobile homes; however, the petitioner was entitled to a permit to replace the mobile home if that is done within 180 days.

11. ___ F. Supp. ___, 1998 WL 61578 (W.D. N.C. 1998). The court further held the challenged standards did not violate the Commerce, Due Process, or Equal Protection Clauses.

12. Graham Court Assoc. v. Town Council of Chapel Hill, 53 N.C. App. 543, 281 S.E.2d 418 (1981).

13. ___ N.C. App. ___, 493 S.E.2d 786 (1997).