Improper City Limitation to One-Time Manufactured Home Replacement in Communities

Since S.B. 1248 became effective on September 1, 2017, TMHA has been informed that numerous cities in Texas have responded to the law by imposing replacement limits within manufactured home communities to a single, one-time replacement. 

Legislative Intent of S.B. 1248

Limiting the number of times a manufactured home can be replaced inside a community is contrary to the law and legislative intent behind S.B. 1248.

Sen. Buckingham authored S.B. 1248, and her stated intent as found in the Bill Analysis states:

The purpose of S.B. 1248 is to protect the property rights of manufactured home community owners and their tenants by preventing cities from adopting discriminatory policies aimed at eliminating all or portions of the community's nonconforming use variance.

The Bill Analysis further elaborated on the unfair and discriminatory treatment by some cities against the vested rights of manufactured home community owners.

S.B. 1248 prohibits cities from reducing the nonconforming use allowance for existing manufactured homes and ensures the community owners' property and investment rights to allow for homes to be repaired and replaced. S.B. 1248 also preserves the lot setback requirements of the manufactured home community as they were when the community was first authorized by law or allowed.

Unfortunately, some Texas cities have had adversarial reactions to S.B. 1248 and are operating contrary to the intent of the Texas legislature.

Cities Improperly Using Older Law

Some cities are now imposing a one-time home replacement restriction within “grandfathered” communities intended to be protected by the Texas legislature in S.B. 1248.

Cities are attempting to accomplish this by using a statute from 2008 that preserved the right of a manufactured homeowner, located on a lot in a city, with the right to replace their manufactured home with a newer home so long as the newer home was the same size or larger than the home they replaced.  The statute specifies that a homeowner’s ability to replace their home with a newer home as a result of a fire or natural disaster cannot be restricted. 

However, the law says in 1201.008(f), Occupations Code, “[o]ther than in the case of a fire or natural disaster, a general-rule or home-rule municipality by an ordinance or charter may limit the ability of the owner to replace his home to a single replacement.”

The intent behind the 2008 law was to preserve a manufactured homeowner’s right to upgrade to a newer house who resided on a private lot within a city.  The law was not intended to, and did not include, a reference to a lot within a manufactured home community.

Nonetheless, some cities are using the 2008 law now in conjunction with the new laws from S.B. 1248 to reluctantly allow for homes inside manufactured home communities to be replaced, but then are limiting that replacement to only a single, one-time replacement. 

Once a home is replaced, if that home is removed, it cannot be replaced again.

These cities are attacking the vested rights of both the community owner and the homeowners living within a manufactured home community. 

The intent of S.B. 1248 was to stop the, “you move it; you lose it,” treatment by cities against manufactured home communities. Prior to S.B. 1248 some cities prohibited, in various ways, the replacement of homes removed from a community resulting in the permanent loss of individual lots within the manufactured home community overtime.  In 2017 the legislature deemed this practice as creating a, “disincentive…to update the homes in a community with newer homes. Instead, community owners must keep older homes they would otherwise replace out of fear of losing lot leasing revenue if a replacement home is not allowed.”

The relevant law changes from S.B. 1248, that now exist in Section 211.018(d), Local Government Code, are:

(d)  A manufactured home owner may install a new or used manufactured home, regardless of the size, or any appurtenance on a manufactured home lot located in a manufactured home community for which a nonconforming use is authorized by law, provided that the manufactured home or appurtenance and the installation of the manufactured home or appurtenance comply with:

(1)  nonconforming land use standards, including standards relating to separation and setback distances and lot size, applicable on the date the nonconforming use of the land constituting the manufactured home community was authorized by law; and

(2)  all applicable state and federal law and standards in effect on the date of the installation of the manufactured home or appurtenance.

There is no other policy reason or justification for a city now limiting home replacement in a community following S.B. 1248 to a single replacement other than to have the same effect of eliminating viable lots within a manufactured home community with the passage of time. 

Preventing this type of municipal attack on vested rights, directly and exclusively towards manufactured home communities, was why S.B. 1248 was passed into law.

Criteria for Construing a Law

Section 311.023, Government Code, provides the criteria when construing a statute which includes:

1. object sought to be attained;
2. circumstances under which the statute was enacted;
3. legislative history;
4. common law or former statutory provisions, including laws on the same or similar subjects;
5. consequences of a particular construction;
6. administrative construction of the statute; and
7. title (caption), preamble, and emergency provision.

Factors (1), (2), (3), and (5) are the most relevant when analyzing S.B.1248. It is clear by the language of S.B. 1248, the legislative history, and the expressed intent that the “object sought” was to preserve the right to replace homes in the future for all manufactured home communities.  The circumstances when the statute was enacted was that cities were imposing discriminatory restrictions prohibiting manufactured homes from being replaced in manufactured home communities, and this was deemed inappropriate and unfair treatment. 

Additionally, the practice of eliminating viable lots in a manufactured home community was deemed against the public policy of creating an incentive and ability to improve manufactured home communities through home replacement.

The reason preserving the right to replace was determined to be superior public policy is because not allowing replacement creates the disincentive of upgrading homes in communities.  The result means old, deteriorating homes are kept in communities because an old home on a lot is still better than no home on a lot. 

The consequence of construing the statute to allow for a law 10 years older than S.B. 1248 to apply a limitation to the new provisions of S.B. 1248 negates the purpose of the new statute.  The effect of such an incorrect interpretation reverts to essentially the same position that the changes in S.B. 1248 were passed to correct.

Applied Together 1201.008(f) and 211.018(d) are in Conflict

Imposing the single home replacement limits from Section 1201.008(f), Occupations Code, within the new provisions in Section 211.018(d), Local Government Code, creates an unambiguous statutory conflict. 

Both provisions address “lots” within a city.  However, Section 1201.008(f), Occupations Code, calls for the optional limitation of a one-time home replacement, while Section 211.018(d) does not limit the number of times a home can be replaced. 

Section 211.018, Local Government Code, lists the only limitations for home replacement to include:

• “new or used” manufactured homes;
• Compliance with the, “nonconforming land use standards, including standards relating to separation and setback distances and lot size, applicable on the date the nonconforming use of the land constituting the manufactured home community was authorized by law;”
• Installed to applicable state and federal law and standards; and
• A prohibition of installing a manufactured home in a floodplain area if the city prohibited any new single-family residences from being constructed in a designated floodplain

In the context of limiting home replacement, the two statutes are in conflict because one statute cannot protect the ability to continuously replace manufactured homes in a community over time, while the other calls for a single replacement limit. 

Law of Code Construction for Conflicting Laws

The laws of statutory construction require that when two laws are in direct conflict, the law most recently passed controls, 311.025(a), Government Code. 

The provisions of S.B. 1248 became law on September 1, 2017. 

The provisions allowing cities to limit manufactured home to a single replacement became law on January 1, 2008. 

Therefore, the provisions in S.B. 1248 allowing unlimited manufactured home replacement controls because it was more recently passed.

The laws of construction also dictate when a general provision in the law conflicts with a “local” or specific provision elsewhere in the law, then, “the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.” 

In this instance the more general provision of 1201.008(f), Occupations Code, applies to all “lots” in a city where a manufactured home is located.  The local or “special” provision in 211.018(d), Local Government Code, addresses the narrower type of lots only located within a manufactured home community zoned as a nonconforming use within a city.

The general provision, in this case, was enacted prior to the special provision, and the intent of the special provision was to prevail over the older, general provision. Therefore, neither of the exceptions for the general provision to trump the special provision applies, and, again, the changes of S.B 1248 control.

For Nearly All Cases, Local Laws in Place at Time of Grandfathering Did Not Limit Replacements

In addition to the legislative intent, and the law of Code Construction both concluding that a city cannot impose a single home replacement within the context of a lot in a manufactured home community that has been declared a nonconforming use, the language in Section 211.018(d), Local Government Code,  ensures that the only placement limits for any replacement manufactured homes in a community are the local provisions that existed on the date the manufactured home community was original authorized as a nonconforming use.

Section 211.018(d), Local Government Code, limits the ability to replace a home only to the “land use standards” that were in existence “on the date the nonconforming use of the land…was authorized by law.”  This means only the local laws that existed at the time the manufactured home community became “grandfathered.”

Since most manufactured home communities were created before 1980, and nearly every manufactured home community in the state inside a city’s jurisdiction was subsequently determined to be a nonconforming use in the subsequent decades, only the local ordinances in place at the time the underlying zoning was changed apply.

Said differently, the moment the community became “grandfathered” was, in all likelihood, years (if not decades) prior to the 2008 law coming into existence allowing for a limit to only one-time replacement, and therefore the limit does not apply.

If there was not a one-time home replacement limit in place prior to a manufactured home community being declared nonconforming, then any later limitation on the amount of home replacements does not apply per Section 211.018(d)(1).

This becomes a simple exercise of looking at dates.  If the date of the city ordinance that limits only a one-time replacement for manufactured homes occurred after a manufactured home community within the city’s jurisdiction was “grandfathered” as a nonconforming use, then the single replacement limit cannot apply to that community.    

Conclusion

It is unfortunate that once again some Texas cities are purposefully targeting the continued existence and viability of manufactured home communities. Cities trying to take away the vested rights of manufactured home community owners by systematically eliminating lots overtime was exactly the behavior the Texas legislature stepped in to stop in 2017 with the passage of S.B. 1248. 

However, some cities have adopted a tactic to circumvent the new law and intent of the legislature.  But when cities apply the old and new laws together in the context of a grandfathered manufactured home community, the two statutes are placed in direct conflict. The law that determines which law controls when two laws conflict concludes that cities are improperly imposing one-time home replacement limits in grandfathered communities. 

In addition, and alternatively, the language of the law created from S.B. 1248 limits home replacement only to the extent any such limits, or “land use standards,” existed on the date a community became grandfathered. The historical fact is that nearly all manufactured home communities were built and then later “grandfathered” before 2008.  The law that allowed a city to limit the replacement of a manufactured home on a city lot to one-time did not exist until January 2008.  And any city ordinance exercising the limitation option could have only occurred sometime after January 2008.

Therefore, any manufactured home community that was grandfathered prior to 2008 (or prior to when a city changed its ordinance to avail itself of the option to limit home replacement by the 2008 law), cannot apply the later-in-time replacement limitation to any prior grandfathered manufactured home community.