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ing classifications specifying acceptable locations for manufactured housing as long as the requirement is not based on compliance with construction, safety, and energy standards stricter than the HUD Code. In other words, the federal preemption provision is only triggered if the zoning ordinance includes building or construction standards. Consequently, a community’s decision as expressed in its zoning code to “restrict” manufactured housing from a locational standpoint is usually unaffected by the NMHCSSA. This can pose a problem in some situations if the zoning based restrictions restrict the supply of suitable manufactured housing sites in a community. III. Relevant Arkansas Law on Manufactured Housing Siting A. Arkansas Municipality Authority to Establish Zoning Codes An Arkansas municipality’s power to establish zoning and related requirements is derived from certain state statutes.23 Municipalities are provided the authority to enact ordinances, which are necessary for the safety, to preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of its inhabitants. This statutory authority is limited or enhanced
based on the classification of the municipality, but generally includes the ability to regulate certain aspects of building construction.24 For example, first and second class cities have authority to adopt zoning ordinances. However, only first-class cities are granted the authority to regulate the building of houses. Many Arkansas communities have historically attempted to restrict the placement of manufactured housing through the use of zoning ordinances or codes. For example, in Robertson v. City of Lowell,25 three mobile homes were placed on a tract of agricultural land, contrary to a local zoning ordinance restricting them to mobile home parks. The court held that the mobile homes were not permitted as non-conforming uses. In Rolling Pines Ltd. Partnership v. City of Little Rock26 the City of Little Rock’s zoning ordinance did not allow manufactured homes in R-2 zoning districts as a matter of right. The court upheld a Little Rock zoning provision that only authorized manufactured homes as a conditional use if they met the following standards: (1) a pitched roof of three (3) in twelve (12) or fourteen (14) degrees or greater; (2) Removal of all transport elements; (3) Permanent foundation; (4) Exterior wall finished so as to be compatible with the neighborhood;
Tom M. Ferstl, MAI, SRA, J.D. J.T. Ferstl, MAI, J.D. 621 E. Capitol Ave. Little Rock, AR 72201 Phone: 501-375-1439 or 501-376-1439 Fax: 501-375-8317
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(5) Orientation compatible with placement of adjacent structures; (6) Underpinning with permanent materials; (7) All homes shall be multi-sectional; and (8) Off-street parking per singlefamily dwelling standard. The court upheld a determination that manufactured homes were not compatible with the established neighborhood standards such as the presence of brick homes in this area of Little Rock. The 2008 Arkansas Court of Appeals decision in Forest Glade Management, LLC v. City of Hot Springs27 addressed a City of Hot Springs zoning code provision. The code required that all manufactured homes sited in the city, after the effective date of the ordinance, have been manufactured subsequent to October 25, 1994.28 A mobile home park challenged the Hot Springs code provision arguing it exceeded the state statutory authority provided to municipalities. Specifically, the mobile home park stated that the city did not have the authority to use or address the structure’s age in its code. The Arkansas Court of Appeals found that the City of Hot Springs provision was a valid exercise of its police power because the zoning ordinance referenced the 1994 federal regulations addressing standards for mobile home construction (i.e., the HUD Code). The ordinance was therefore found to bear a rational relationship to the health, safety and welfare of the citizenry since it established certain minimum standards for mobile homes placed within the City of Hot Springs. B. Elements of the Arkansas Affordable Housing Accessibility Act A number of states, over the past several years, have recognized the potential role of manufactured housing in addressing housing needs. Some states require municipalities to consider the role of manufactured housing in their comprehensive planning. Other state legislative initiatives have reduced local governmental obstacles.29 Arkansas is one of those states. In March 2003, the Arkansas General Assembly enacted the Arkansas Affordable Housing Accessibility Act (“Accessibility Act”) to better ensure the availability of affordable housing in Arkansas communities.30 The Accessibility Act attempts to promote affordable residential housing without compromising cities’ concerns with land value depreciation and aesthetic challenges. It also provides that Arkansas communities must treat manufac-