[Federal Register Volume 62, Number 86 (Monday, May 5, 1997)]
[Rules and Regulations]
[Pages 24337-24338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11535]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 3280 and 3282
[Docket No. FR-4223-N-01]
Manufactured Housing: Statement of Policy 1997-1, State and Local
Zoning Determinations Involving HUD-Code
AGENCY: Office of the Assistant Secretary for Housing-Federal Housing
Commissioner, HUD.
ACTION: Statement of policy.
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SUMMARY: This Statement of Policy provides notice to the public
concerning HUD's application of the National Manufactured Housing
Construction and Safety Standards Act of 1974 (Act) to certain zoning
decisions being made by State or local government. These cases
typically involve State or local actions to prohibit the siting of HUD-
code manufactured housing while permitting the siting of other types of
manufactured housing built to State or local building codes.
If a locality is attempting to regulate and even exclude certain
manufactured homes through zoning enforcement that is based solely on a
construction and safety code different than that prescribed by the Act,
the locality is without authority to do so. This Statement of Policy is
being provided to clarify and distribute HUD's existing policy
determination concerning this matter.
FOR FURTHER INFORMATION CONTACT: David R. Williamson, Director, Office
of Consumer and Regulatory Affairs, Department of Housing and Urban
Development, 451 7th St. SW, Room 9152, Washington, D.C. 20410-8000),
telephone number (202) 708-6409 (this is not a toll-free number). For
hearing-and speech-impaired persons, this number may be accessed via
TTY by calling the Federal Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
Over the last few years, HUD has received a number of questions
concerning the application of the Federal preemption authority in the
National Manufactured Housing Construction and Safety Standards Act of
1974 (42 U.S.C. 5401-5426) (Act) to actions by State or local
government. HUD recently published a nonbinding notice of staff
guidance, which it hoped would assist the public on some of these
questions (62 FR 3456, January 23, 1997).
In certain cases involving questions of preemption and zoning, the
State or local government is imposing more limitations on the placement
of manufactured homes that are built to the Federal manufactured home
construction and safety standards (24 CFR part 3282) (Federal
standards) than on other types of factory-built single family housing.
In the past, HUD has sent letters to various communities in such cases,
where local zoning laws are in direct conflict with the Federal Act and
regulations.
II. Increasing Homeownership and the Supply and Availability of
Affordable Housing
The elimination of barriers to the expanded use of affordable
housing, including manufactured homes, has been one of the primary
objectives of the President's National Homeownership Strategy. HUD
coordinates the National Partners in Homeownership, which now has over
60 national organizations participating, including State, county and
local governments, and other groups, to identify and promote ways to
increase homeownership and the supply of affordable housing. The
Strategy includes the following goals and objectives in Action Item 27:
The partnership should identify and promote zoning and
land development policies that are more conducive to manufactured
housing. As part of this initiative, partners should develop model
legislation for States and localities to adopt that prohibits exclusion
of manufactured housing solely on the basis of HUD certification
(manufacturer certification that the home has been constructed to the
Federal standards).
The partners also should produce design and land
development criteria and guidance materials for use by housing
developers and local governments, to facilitate inclusion of
manufactured housing in their jurisdictions. To supplement these
efforts, the partnership should offer a cooperative program of
education and technical assistance to encourage nationwide acceptance
of the model legislation within 6 years.
HUD strongly endorses this Action Item, particularly making
available sites for manufactured housing outside of parks and largely
rural areas. On March 22, 1996, the Manufactured Housing Institute
(MHI) and the American Planning Association (APA) convened a National
Partners in Homeownership Forum to discuss zoning and other issues. The
Forum drew over 100 attendees including planners, housing-advocacy
organizations, and representatives from the manufactured housing
industry.
The attendees reached an almost unanimous consensus that very real
zoning and other regulatory barriers exist that significantly hinder
the full use of manufactured housing. The Forum produced a series of
recommendations to HUD and the National Partners in Homeownership,
including APA and MHI.
This Statement of Policy is being issued as an initial step toward
the elimination of barriers to the use of manufactured housing and in
furtherance of the goals and objectives of the National Homeownership
Strategy.
III. Requirements of Act and Regulations
Section 604(d) of the Act, 42 U.S.C. 5403(d), states:
Whenever a Federal manufactured home construction and safety
standard established under [the Act] is in effect, no State or
political subdivision of a State shall have any authority * * * to
establish, * * * with respect to any manufactured home covered, any
standard regarding construction or safety applicable to the same
aspect of performance of such manufactured home which is not
identical to the Federal manufactured home construction and safety
standard.
The term ``manufactured home'' is defined in section 603(6) of the
Act, 42 U.S.C. 5402(6). In addition, Sec. 3282.11(d) of the
Manufactured Home Procedural and Enforcement Regulations (24 CFR part
3282) prohibits any State or locality
[[Page 24338]]
from establishing and enforcing rules or taking any action that impairs
the Federal superintendence of the manufactured home industry.
Conversely, section 623(a) of the Act (42 U.S.C. 5422(a)) provides:
Nothing in this [Act] shall prevent any State agency or court
from asserting jurisdiction under State law over any manufactured
home construction or safety issue with respect to which no Federal
manufactured home construction and safety standard has been
established. * * *
IV. Statement of Policy 1997-1
Generally, the adoption and enforcement of a local zoning ordinance
regulating the location of manufactured homes has not been subjected to
the regulatory authority of the Act because such actions are exercises
of the locality's authority to determine proper land use. Under section
604(d) of the Act (42 U.S.C. 5403(d)), however, the locality is without
authority to regulate or exclude certain manufactured homes through
zoning ordinances or enforcement decisions that are based solely on a
construction and safety code that is different from the Federal
standards prescribed under the Act.
For example, assume two structures are brought into a locality and
both structures are: 320 or more square feet when erected on site;
built on a permanent chassis; and transported in one or more sections.
If the locality only allows the structure that is built to the State or
local building code to be sited outside an approved mobile home park,
the locality would be acting without authority. If under the local
zoning laws the locality accords the same treatment to all structures
that meet the Act's definition of a ``Manufactured home'' (42 U.S.C.
5402(6)), the locality is not in conflict with the preemptive
provisions of the Act.
Therefore, a locality cannot exclude or restrict manufactured homes
that meet the Federal standards if the locality accepts manufactured
homes meeting other standards. By excluding or restricting only
manufactured homes built to the Federal standards and accepting
manufactured homes built to State or local codes, the locality is
establishing standards for manufactured homes that are different from
the Federal standards. To the extent that the provisions or enforcement
of local zoning regulations require that manufactured homes meet
standards other than the Federal standards for manufactured homes,
those local actions are preempted by section 604(d) of the Act (42
U.S.C. 5403(d)). Furthermore, such a system of local regulation and
enforcement would interfere with Federal superintendence of the
manufactured home industry, in contravention of 24 CFR 3282.11(d).
Dated: April 24, 1997.
Nicolas P. Retsinas,
Assistant Secretary for Housing-Federal Housing Commissioner.
[FR Doc. 97-11535 Filed 5-2-97; 8:45 am]
BILLING CODE 4210-27-P