Putting the grandfathering concept to bed once and for all

This just in from one of the attorneys we use, regarding case law on mobile home park grandfathering. Hope this explains what I’ve been putting on the Forum for the past many years in concrete terms that you can show to your own municipal lawyer if need be:The Hecks own a tract of land in the City of Pacific (“City”) and operate a mobile home park known as Pacific Mobile Home Manor (“Pacific Manor”) on that tract.  The Hecks have operated Pacific Manor on this tract of land since approximately 1983.  Within Pacific Manor is a mobile home pad with an address designated as 303 South Second Street (“the Pad”).  The Pad is positioned fourteen feet and ten inches from the mobile home pad directly to its south and fourteen feet and eight inches from the mobile home pad directly to its north.The Hecks previously rented the Pad to renters who owned their own mobile home.  Two years after those renters moved out, the Hecks sought to install a new mobile home of the same size on the vacant Pad.  The City informed the Hecks that the new mobile home could not be placed upon the Pad unless they first obtained a variance from City’s pad spacing ordinance, which requires twenty feet of space between each mobile home.  The applicable ordinance adopted in 1996 provides:“No manufactured home shall be placed in any manufactured home park existing on the effective date of this Chapter as a replacement to any existing manufactured home unless said manufactured home is placed at least twenty (20) feet from any other manufactured home or any other structure.”In accordance with the City directive the Hecks applied for a variance from the City ordinance to reduce the 20-foot spacing requirement. The City Zoning Officer denied the application and the Hecks appealed to the Board of Zoning Appeals (BZA).  The Zoning Officer testified before the BZA that a strict application of the spacing requirement would oblige the Hecks to restructure the layout of the mobile home park, and that certain lots would not be usable until the new configuration was completed.  The Zoning Officer also testified that there is no common ground at Pacific Manor, so the space between mobile homes is the only area for green space.  The BZA denied their request for a variance and the Hecks appealed to the Circuit Court of Franklin County, which also denied their request leading to an appeal to the Eastern District, which reversed the BZA decision based on the fact that the mobile home park was a nonconforming use protected by the Constitution.‘“Zoning ordinances must permit continuation of nonconforming uses in existence at the time of enactment to avoid violation of constitutional provisions preventing the taking of private property without compensation.”  At the same time, our Supreme Court has recognized that the spirit of zoning ordinances always has been and still is to diminish and decrease nonconforming uses.  Accordingly, Missouri courts have allowed municipalities to regulate and limit nonconforming uses by various means such as prohibiting the resumption of a nonconforming use after its abandonment or discontinuance, prohibiting the rebuilding or alteration of nonconforming structures or structures occupied for nonconforming uses, and prohibiting or rigidly restricting a change from one nonconforming use to another.” Heck v. City of Pac., (ED101157, Oct. 28, 2014)

Thanks Frank- That is really good information. 

Thank you Frank!

Thank you so much Frank, this is exactly what I needed.

I hate to say it, but I think this decision supports my contention in another thread regarding the requirement of bringing in double-wide and not single-wide homes.  Again, let me preface this by saying that in any particular case the city might fight and lose, but they may fight and win and it’s expensive to keep appealing to the federal district court (or higher).(1) First of all, Frank, thank you so much for posting this.  Your legal team provides service to all of us and I am very grateful.(2) ZZ_Top, FYI just from a legal perspective, this decision is binding precedent only in Missouri courts.  So you can’t hold a Texas judge to it.(3) The quoted decision specifically says that municipalities may pass laws "prohibiting the resumption of a nonconforming use after its abandonment or discontinuance, prohibiting the rebuilding or alteration of nonconforming structures or structures occupied for nonconforming uses, and prohibiting or rigidly restricting a change from one nonconforming use to another.”I don’t want to give ammo to any Cities that might see this, since it’s in my self-interest to see Frank win the day, but this language still suggests to me that after a home leaves, a new home might have to conform to the new regulations on the use of mobile home pads (i.e. double-wide only), especially if the pad is vacant for an extended period of time (weeks or months?) and/or the new home is owned by a different person from the old home.It may boil down to whether “use” means per-pad use or “use-of-the-entire-land-as-a-MHP.”  I think Frank is implicitly asserting the latter, but I am not convinced that is a bulletproof legal argument.  Regardless of whether the legal argument is right, it’s at least a big piece of ammunition against a City attorney and, if it is a bluff, it is a hard (and expensive) bluff to raise.p.s. I’d be excited to be completely wrong about my negativity.  I am not trying to win an argument; I just want to voice my opinion in the hopes that someone convinces me I’m completely wrong.Brandon@Sandell

Brandon,Thanks for your input. My excitement blinded me to the fact that it was indeed Missouri specific. I am still showing this to an attorney…if I ever get one to return my call that is.

Update – just to give a little more info from a few minutes of research.  The law of “constitutional provisions preventing the taking of private property without compensation” (quoted from Frank’s quotation of Heck) is confused and inconsistent, and sometimes turns on extremely subtle distinctions.  See, e.g., http://en.wikipedia.org/wiki/Regulatory_taking and see also in particular the 95% versus 100% problem in J. Stevens’ dissent in Lucas v. South Carolina Coastal Council which established the modern “total takings” test.  (See http://en.wikipedia.org/wiki/Lucas_v._South_Carolina_Coastal_Council).Note that this is (current?) U.S. Supreme Court interpretation of U.S. constitutional law.  State law may be more (but not less) protective of private property rights (particularly in Texas?)

@Brandon,What Frank suggests is based on old precedents. Now on the other hand if when your MHP was built and one of the covenants specifically denied double wides, you might have some issues but if the permitting says mobile home, you can put any mobile home that will fit. Now if you go on and put one of these tiny houses (tiny house movement), you are going to be in trouble. The portion vs whole grandfathered argument has been tested in the courts and is rock solid. Grandfathering covers the entire land use, regardless of the fact that you may have ceased using a portion of it. We just had a major grandfathering case get beat down in the courts in WA, where the county not only lost the ability to remove grandfathering with arbitrary and silly misuse of law but the judgement made it possible to intensify (small expansion) legal non-conforming use. Experts consider intensification an approximate 10% increase so if you had 100 MH pads, you could build 10 more with the same rules that applied at permitting. Intensification has not been well tested in the courts but grandfathering has.

So you’re saying, most case scenario, it would be a pyrrhic victory. It would be logical to adhere to local ordinances

Grandfathering is not Missouri specific – these same arguments hold true in all 50 states (except there are no mobile home parks in Hawaii). In 20 years, we have never lost a case, nor had a city stop us from bringing in homes into our lots, regardless of what they tell us on the front end. I don’t know what else I can tell you. That being said, the reason we have always won is that we do great due diligence and get a Certificate of Zoning from the city, a printed record of any violations, talk at length with the city managers and inspections department to make sure there are no problems, and keep a good municipal lawyer at the ready in case anything should ever pop up. Parks that have no valid operating permit, or were not built in conformance with the prevailing laws of the time, have no protection under grandfathering, and you’d be surprised how many of those are out there.The point is that when Bubba the inspector tells you “you can’t bring any trailers into this here park” don’t accept that as fact and drop the deal. And when the city says “you can’t use those three lots because they haven’t had a home on them in a decade and don’t meet our new setback law we passed last week” after you buy the park, don’t accept that as fact and let the lots sit vacant. Mobile home park owners have very solid rights under grandfathered use, and a simple call or letter from a good municipal lawyer is often all it takes to get what you want – and what is legally yours to begin with.

So you won!     How much time and cost was involved to reconcile the situation?     Do you recommend a new person to the business to be initiated with those  kind of issues?       For some owners we prefer the non-city zoning problems and issues–just a comment!!