Local Government Regulation of Manufactured Home Communities
Local governments often utilize land use ordinances to impose limitations on manufactured housing in communities. Fortunately, over the past couple decades, the State legislature, motivated by the advocacy of landlord associations and individual owners, has counteracted some of these local efforts to restricting manufactured housing. The intent behind the statutes is to preserve manufactured home communities as affordable housing.
Typically, a new building permit is required for replacing an existing mobile home with another unit, even when it is being placed in the same location as a prior home. Unfortunately, the administrator responsible for reviewing applications is often not familiar with the laws concerning manufactured home communities, resulting in a denial of the application, for example, based upon insufficient setbacks or abandonment of the nonconforming use. In other cases, they may cite environmentally critical areas regulation, or try to impose impact fees.
The purpose of this article is to give some background that will better allow you to advocate for approval. It is important at the outset to discuss these issues with the building officials prior to submitting your application to establish a frame of reference that might avoid the need to appeal the decisions to a hearing examiner. You will want to research your records for site plans and prior approvals dating to when the community was originally developed and/or subsequently changed. If you do not have records, you may request development records from the building department through a public disclosure request. If your application is denied, it is also important to remember that appeals must be filed within the time specified in the denial which is typically 14 days following the date specified on the notice of decision. Depending on the circumstances, you may be able to pursue other alternatives that address the concerns such as applications for administrative adjustments or variances.
Manufactured home communities are often zoned as nonconforming uses. A nonconforming use is a use of property or a structure that was allowed under the zoning regulations at the time the use was established but which, because of subsequent changes in those regulations, is no longer a permitted use. Nonconforming uses and structures are not illegal uses; they are generally allowed to continue as is, subject to local restrictions.
Local restrictions typically prohibit expansion of nonconforming uses and structures. Nonconforming uses usually lose their legal status under local regulations if they are discontinued for a particular period of time, such as a year or two. Nonconforming structures also lose their legal status if they are destroyed, such as by fire, in whole or in part.
From the “manufactured home community” perspective,” in 2004, the legislature enacted legislation that prohibits a local government from removing or phasing out manufactured home communities as non-conforming uses and in 2011 did so for replacement of individual homes. RCW 35.63.161, RCW 35A.63.146, & RCW 36.70.493 prohibit a local government from:
- Removing or phasing out manufactured home communities as non-conforming uses (2004).
- Prohibiting entry or requiring removal of individual homes based upon status as a nonconforming use (2011).
Washington appellate court decisions are very protective of a landowner’s right to not have a non-conforming use abandoned. To prove that the landowner has discontinued using a nonconforming use, the county or city has the burden of proving: “(a) An intention to abandon; and (b) an overt act, or failure to act, which carries the implication that the owner does not claim or retain any interest in the right to the nonconforming use.” Van Sant v. The City of Everett, 69 Wn. App. 641,647-648 (1993). It cannot be disputed that a community replacing a home has ever intended to abandon its non-conforming use as a manufactured home community, and a tenant’s overt act of removing or abandoning a manufactured home cannot satisfy the second element of the above Van Sant test.
Regulation of Placement of Homes
In the past, the city or county often countered that they retain jurisdiction to regulate, for example, age or dimensions of replacement homes, the types of homes, and setback requirements. In response, the Legislature has also enacted a series of laws that limit the ability of local government from excessive regulation of placement of homes. RCW 35.21.684; RCW 35A.21.312, and RCW 36.01.225 prohibits a local government from:
- Adopting an ordinance that has the effect, directly or indirectly, of preventing the entry or requiring the removal of a recreational vehicle used as a primary residence in manufactured/mobile home communities (2004).
- Prohibiting entry or requiring removal of homes from manufactured home communities based exclusively on age or dimensions (2008).
- Siting a manufactured/mobile home on an existing lot based solely on lack of compliance with existing separation and setback requirements that regulate the distance between homes (2019).
- Preventing tiny houses with wheels from being used as a primary residence within manufactured/mobile home communities (2019).
Critical Areas Regulation
“Critical areas” regulation is another area where local governments try to exercise their powers to limit replacement of manufactured homes, for example, the designation of land as wetlands or flood areas.
Courts have held that liability for inverse condemnation may exist "where the alleged taking or damage was caused by affirmative action of a government entity, i.e., appropriating the land, restricting its use through regulation, or causing damage by constructing a public project to achieve a public purpose." Pepper v. J.J. Welcome Constr. Co., 73 Wn. App. 523, 530, (1994); Phillips v. King County, 136 Wn.2d 946, 963 (1998)).
However, as seen in Cradduck v. Yakima County, 166 Wn. App. 435 (2012), challenges to ordinances motivated by serious concerns such as flooding have been rejected as serving legitimate public purpose so long as they reasonably necessary to achieve those purposes, and are not unduly oppressive on the landowner.
Another area of regulation is the imposition of impact fees for locating a manufactured home on a manufactured home community lot. Impact fees are authorized for those jurisdictions planning under the Growth Management Act, as part of “voluntary agreements” and as mitigation for impacts under the State Environmental Policy Act.
A local government can impose impact fees on “system improvements” that are reasonably related to new development. RCW 82.02.050(3)(a). The fees must not exceed a "proportionate share" of the costs of system improvements reasonably related to the new development. The fees must also be used for system improvements that will reasonably benefit the new development. A "[p]roportionate share" is that portion of the cost of public facility improvements that are reasonably related to the service demands and needs of new development.
From a policy standpoint, in most manufactured home installation cases, there is no change in the community’s vested use. Replacement of a manufactured home is not new development. By replacing homes in lots abandoned by its prior residents, a community is not engaging in development activity that creates a demand for additional public facilities. Since replacing homes do not further municipalities’ reasons for having impact fees, they should not apply to the replacement of manufactured homes in a manufactured home community.
In addition, impact fees disproportionately impact manufactured home communities where the cost of a replacement manufactured home in a community is much less than the cost of a home in any other type of property, yet, with some exceptions, the fee imposed is often the same as is required for a much more expensive home. This is contrary to most jurisdictions’ stated intent in their Growth Management Plan to provide affordable housing for their residents.
As indicated, educating building officials prior to submitting applications for a building permit is a first step that is helpful in clearing the way to a permit. However, even with the existing protections in place and the above arguments, the frequency in which local governments continue to impose roadblocks to replacement of manufactured homes in manufactured home communities indicates that new legislation is needed to protect manufactured home communities and their role as a viable source of affordable housing in our communities.
Deric Young practices law with Jack W. Hanemann P.S. in Olympia, Washington and has represented Manufactured Housing property management firms and community owners since 2000. This article contains his own personal observations and opinions and is not intended as legal advice without further consultation.