Issue link: http://read.dmtmag.com/i/620649
JANUARY 2016 13 THE JOURNAL No. 9 on Get It Quick Page partment's "long-held" microscopic approach to federal preemption, drew a strong re- buke from Congress. In a November 13, 2003 letter to HUD, prominent congressional supporters of the 2000 reform law shredded HUD's specious arguments, stating: "We are writing to express our deep dis- appointment in HUD's July [2003] rejec- tion of the Manufactured Housing Consensus Committee recommendation, which addresses the problem of discrimi- nation in the siting of manufactured homes. *** "[W]e believe that HUD should have taken this opportunity to use its expanded legal preemption authority under the 2000 Act to develop a Policy Statement or reg- ulation to make it clear that localities may not engage in discriminatory practices that unfairly inhibit or prohibit development and placement of manufactured housing. *** "HUD's analysis relies on … court cases that predated the 2000 Act amendments, which render such rulings obsolete. Moreover, HUD's legal analysis states that the 2000 Act amendments 'did not mod- ify the basic substance of the statutory pre- emption provision.' Such a statement ignores the pain language of the 2000 Act changes. *** "[T]he 2000 Act expressly provides, for the first time, for federal preemption [to] be 'broadly and liberally construed' to ensure that local 'requirements' do not af- fect 'federal superintendence of the man- ufactured housing industry.' Combined with the expansion of the findings and purposes of the Act to include for the first time [facilitating] the 'availability of af- fordable manufactured homes' … these … changes give HUD the legal authority to preempt local requirements or restrictions which discriminate against the siting of manufactured homes (compared to other single-family housing) simply because they are HUD-Code homes. (Emphasis added). Put simply, this confirms that the enhanced preemption of the 2000 law – both in letter and intent -- sweeps away HUD's previous objections to preempting the discriminatory exclusion of HUD Code homes via zoning or other "require- ments," making it clear that: (1) the new "facil- itation" language and structure of the 2000 law does impose a duty on HUD to preempt discrimi- natory exclusion measures; (2) that, as amended, the preemption language of the 2000 law does reach and include discriminatory exclusion meas- ures: and (3) that the new preemption language and facilitation directives were designed and in- tended to achieve that result. HUD's power and duty to address and remedy discriminatory exclusion measures in the context of manufactured housing, moreover, is supported and reinforced by HUD's July 16, 2015 Final Rule on "Affirmatively Furthering Fair Housing" (AFFH). Under that rule, HUD grantees must identify factors, including zoning laws that ac- count for any imbalance in living patterns, and develop a plan to remedy these imbalances, sub- ject to approval by HUD – and the potential loss of HUD funding for non-compliance. As was shown in Part One of this analysis, ex- clusionary local edicts affecting manufactured housing can be shown to produce imbalances in living patterns and the availability of state and local services by segregating HUD Code homes as a separate and (presumptively) inferior class apart from all other types of single-family homes. Just as importantly, under the "disparate impact" stan- dard established by the U.S. Supreme Court in its recent Texas Department of Hous- ing v. Inclusive Communities Proj- ect decision, such edicts discriminate against manufactured homeowners \ 10 \ 15