How to defend a grandfathered land use if there is no recorded plan?

I am in an odd and unenvious position - the town zoning officer is challenging our ability to place homes on currently vacant lots, which were previously occupied.

She is alleging that there is no recorded plan or zoning permit authorizing the use of the property as a mobile home park. The park was developed in the early 1970’s, which pre-dated zoning.

How am I to defend this? My local land use attorney is suggesting I file an appeal to this decision, but we are having a hard time disproving the zoning officer, based on a lack of discoverable evidence to support our position.

Is there such thing as “squatting” that gives us per se grandfathered land use as a mobile home park?

Check the county records - sometimes they have very old files on microfiche indicating the land usage before the city did zoning.

Also take a look at historic imagery from Google Earth and Historical Aerials online - these can go back to the 40’s in some larger towns, and easily the 70’s for many smaller ones. The quality can suck sometimes, but hopefully it turns up something that proves more likely than not it was a MHP. This will be the easiest and quickest potential solution.

For the homes that are on the property are any of the tenants original owners or have documentation indicating the home has been there for a very long time (e.g. delivery papers, title indicating address, etc)? Even their testimony could be useful.

Cities use this “guilty until proven innocent” mentality when it comes to zoning. Shouldn’t they have the burden of proof that it was not a MHP before zoning instead of the other way around? Just because they have no paperwork is not proof. Your state laws may contradict (in your favor) what they’re telling you, which I have seen before here in TX. Maybe your attorney can check that…

Usually adverse possession is about land you don’t own, but who knows maybe zoning applies too.

Keep us posted how this progresses…

I’m dealing with a similar scenario. I had a tenant want to bring in a new home and the county zoning dept. said that according to current zoning standards ( MHP were reclassified in the 1990’s ) that a home could not be place on a lot that had set vacant for more than 3 years without the entire park being rezoned ( i.e. brought up to “current " standards for MHP’s ). I did some research and believe that I may be " legal” but non-conforming to current zoning. I have my attorney following up to see if that is the case. You would think that county / city planners would educate themselves to understand how the affordable housing market demand directly affects and deprives the very constituents they are trying to protect and lighten up on the MHP owners who are trying to fill a viable need for the community.

I did some light reading on this exact topic last night. In most states if a MHP does not have a certificate of non-conformance the property owner has the burden of proof to establish the MHP was an MHP prior to the affecting zoning ordinance.

However, it sounds like the city or county you’re dealing with acknowledges this property has been non-conforming but that the usage has expired due to inactivity, which is different. In most states the burden of proof to show inactivity resides with the county or city. Assuming you have tenants in there currently I would ask the county to show you the documentation that the MHP has been inactive as per their statement. If they cannot provide anything I would say you have a compelling case. It might also be good for you to pull historic rent rolls or other information to contradict them if possible. Hopefully it works out for you.

@Greg_Little after re-reading this you’re absolutely right.

Its’ clear your MHP’s land usage did not change, and the city cannot enforce non usage for individual pads - it must be the entire Park. You should definitely fight that - your muni attorney needs to have a conversation with the city attorney, and it should be a quick conversation.

Does your park have a valid operating license? If so I might trace the operating license back through the years, if not then that’s really bad.

My main concern would be if the park was never legally permitted/zoned when it was built (and someone just started digging one day to kick off construction)

This is a serious issue, and you may want to consult with multiple attorneys. Sometimes a single attorney may not actually know what they’re doing and mislead you.

If the town claims that the park has no legal right to be there then I would ask how the individual mobile homes have electricity. In almost all cities, there can be no electrical connection until there is a city inspection. As a result, the city inspected and approved all of the mobile homes. They would not have done so if the property was not zoned for mobile homes at that time.

The very fact that the mobile homes are there is probably proof enough for any court that there was, in fact, the correct zoning at one time, and the fact that city hall lost the file has no bearing on your grandfathered status. All it does is end the question as to whether or not the park is in full compliance with the original ordinances, since they cannot produce them. Most courts will count the existing setbacks as proof of what the setbacks were.

We’ve had a city or two use the “we can’t find the file” trick and it does not work for them in court – only in their minds.

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Thank you all for your responses to this post. I am going to review with my local attorney, and should have a stronger zoning appeal based on these great points.