Frank E. Jenkins, III
Jenkins, Bowen and Walker, P.C.
15 South Public Square
Cartersville, Georgia 30120
Since 1990 Cannon v. Coweta County, 260 Ga. 56, 389 S.E.2d 329 (1990) has been the veritable albatross hung round the neck of all Georgia land use planners. It was poorly written, perhaps deliberately so, and created more uncertainty about manufactured home regulation than was even previously the case. A common question after Cannon was: May zoning ordinances exclude manufactured homes from any zoning district? But we had no clear answer from that unfortunate decision; to recommend exclusion of manufactured homes from a zoning district was to take some risk that it would not sustain a challenge in court.
But, glory, those days are behind us. On March 10, 2003, we got our manna from heaven in the form of King v. City of Bainbridge, ___ Ga. ___, 577 S.E.2d 772 (2003). In this case the Supreme Court sounded, once and for all, the death knell for Cannon. And what an end it was; Cannon was roundly overruled. No longer is it the law in Georgia.
In City of Bainbridge, King, a resident of the city, was sued for placing her manufactured home in the R-2 zoning district from which such homes were excluded under the zoning ordinance. In her defense of the action against her, she challenged the zoning ordinance in a two-pronged attack. One was under the National Manufactured Housing and Safety Standards Act of 1974, 42 U.S.C. §§ 5401-5426. King contended that the fact that manufactured homes were excluded from the R-2 district, while modular homes (Department of Community Affairs homes) were permitted, evinced a regulatory scheme in violation of the national act. The second attack relied on Cannon. King asserted that the exclusion of manufactured homes from the R-2 district exceeded the police power of the city as otherwise limited by Cannon; thus the ordinance according to her challenge was unconstitutional.
The Supreme Court's response was a sweeping rejection of both challenges. In upholding the city's zoning ordinance, the court concluded that the ordinance did not violate the HUD Act, nor was it an unconstitutional exercise of the city's police power. But, of significance to those of us who practice in the planning and zoning field are the rules laid down by the court which now guide us in crafting zoning ordinances. Those rules are as follows:
- Cannon is dead and gone.
- Local governments may draw a distinction in their zoning ordinances between manufactured homes (HUD homes) and modular homes (DCA homes). As was the case in City of Bainbridge, a zoning ordinance may exclude manufactured homes in a zoning district, but permit modular homes in the same district. A reasonable extension under the same rationale would also permit local governments to exclude modular homes from a residential zoning district.
- The City of Bainbridge's zoning ordinance excluded manufactured homes from all zoning districts, except manufactured home parks and subdivisions. Since this zoning ordinance was approved by the court, local governments may also adopt the same restrictions or similar variations with reasonable assurance that they will be upheld if challenged in court.
The purpose for excluding manufactured homes is still important, however. Without a purpose, a restriction in a zoning ordinance is arbitrary and unreasonable, and thus unconstitutional. In City of Bainbridge, the court found the zoning ordinance valid and constitutional because the restrictions were designed to regulate the quality of housing and advance general safety concerns. Other reasons may also be used and many of those are enumerated in this decision. The reasons don't have to be stated in the zoning ordinance, but it is a better practice to develop acceptable reasons when preparing the record prior to adopting a zoning ordinance. The best place to put the basis for manufactured home restrictions is in the comprehensive land use plan.
In conclusion, this article is not intended to suggest rampant or broadscale exclusion of manufactured homes. But it is to show that flexibility in placement of manufactured homes is now largely up to the discretion of the local government. A careful and reasoned approach to restrictions on manufactured homes best serves the community, as manufactured homes should be permitted in every community.