Posted by ray@lcorn on September 27, 2003 at 11:23:00:
Eddie, Eddie, Eddie…
I ought to send you forty lashes with a zoning book… you know better! I know you know better, because I taught you better! Shame on you for buying without verifying zoning compliance…
OK, tongue lashing over now… let’s figure out how to work through this.
It sounds like you’ve attracted the ire of this administrator. I’m not familiar with your state regs, but in most states the local land-use ordinances are the primary code. State regs are usually through the fire code or building code, and don’t get into issues reserved to land use. Whether or not the zoning official is on firm ground to require you to meet the new regs to replace an existing home depends on a couple of salient facts.
My guess is that with some homes only eight feet apart this park is not a shining example of good planning or stellar living conditions, and the administrator may have made it a personal goal to clean it up? And in order to comply with the spacing/setback requirements for a new home, it necessitates the removal or re-siting of another old home? Which means it has to meet the new regs, resulting in a domino effect through the whole park just from the problem with replacing one home? I can imagine the gleam in the administrator’s eye when you come in the door…
My guess is that he is standing on the ground of not being able to replace a non-conforming use (the technical term for “grandfathered use”). Typically, a non-conforming use is considered to be voided when 50% or more of the structure is damaged or removed, and therefore cannot be replaced.
Here’s the first salient fact that has bearing on the case… who owns the home? If you do, then the issues are going to get very muddled as you work through this…
Here’s why. The real issue is this… most zoning officials (and park owners) assume that the “structure” in question to be replaced is the home. Not so. As a land use, the “structures” of a mobile home park are the spaces. That means the “structure” rented to the residents is made up of the infrastructure that serves each space (water, sewer, cable, gas, etc.), the driveway (if any), the street system for access, and any concrete pad(s) that are constructed for the use of the resident.
That concrete pad is an important fact in the determination of “structure”. If there is no concrete, then there is a chance the “structure” won’t pass the “permanence” definition under the state law. (See an attorney for guidance here. I am not an attorney and I don’t play one on the Internet.)
If the space is the structure, then as long as the spaces are not destroyed beyond 50% of their value, then the “structure” remains a permitted non-conforming use, and the locality must issue a building permit for a new home as long as the hook-ups, etc. meet the building code.
But before you spring this on the unsuspecting zoning admin, you’d better think it all the way through.
If you want to go to court and prove the point, there is ample case law out there to support this position. But don’t expect the locality to just roll over and give up at the first lawsuit. They won’t, because they can’t back down. The issue is quickly recognized as a challenge to local government land-use authority, which derives from the police powers of the state. That’s means they have to defend it. If they lose at the first level, which they should, they will appeal, guaranteed. It can be time consuming and expensive.
About twenty years ago our firm took a town all the way to our state’s supreme court on this very point. But in that case we had a very large park and a considerable investment at stake that if we lost we were going to be out of business. My point is that you need to consider the big picture of relative cost and reward here.
There is another alternative. To turn the situation to a win/win scenario, you need a plan. If you come to the table with a plan to clean up what is obviously a situation that could use some improvement, then the zoning admin may come around to your side of preserving the value of your asset, but improving the conditions for the residents. Show him that you want to upgrade the homes and the park. Point to the part of the community’s Comprehensive Plan that desires affordable, decent housing for its citizens (every Comp Plan has that line), and how your proposal addresses that goal. You’ll have to do some legwork, and come in with a proposal that truly does make improvements. That way the zoning admin gets something, you get the right to place new homes, and everyone stays out of court.
It may be that with a good, tactful attorney you could use the threat of a lawsuit based on the points above to bring the zoning admin to the table. It’s a fine art to threaten lawsuits though, and I would be very careful in choosing the right lawyer. Preferrably someone local, connected, and experienced.
Hope this teaches you the lesson I know it will! Next time do the due diligence first!