Issue link: https://read.dmtmag.com/i/370270
SEPTEMBER 2014 14 THE JOURNAL A Second Chance To Do The Right Thing MHARR VIEWPOINT BY DANNY GHORBANI Bad ideas are a bit like the "Energizer Bunny," they just keep going … and going …and going. As the first – and so far only appointed administrator of the HUD manufactured housing program – Mr. Bill Matchneer, with a fresh new law and support from all stakeholders, had a golden opportunity to fully and properly implement all the crucial pro- gram reforms of the Manufactured Housing Im- provement Act of 2000, but failed to do so while, at the same time, promoting some really bad ideas. Now, given a second chance in his new role as a consultant for the Manufactured Housing In- stitute (MHI) and other HUD Code organizations to correct these failures and help the industry, consumers and all other program stakeholders overcome their consequences, he seems instead to be committed to the same flawed views he held at HUD, as the following example – concerning the vital issue of federal preemption -- demonstrates. According to a recent trade press article by Mr. Matchneer, the industry should be clamoring for a "voluntary" federal sprinkler standard that he claims is necessary to federally preempt state and/or local sprinkler requirements. Not surpris- ingly, he blames unnamed "people" for stopping a "voluntary" sprinkler standard advanced by HUD and MHI during his tenure, by spreading "dark warnings" that HUD was "planning to require fire sprinkler systems in all homes." Since MHARR is the only national industry organization to oppose a "voluntary" (or mandatory) federal sprinkler stan- dard and consistently maintain that such a provi- sion is not needed for HUD's existing "Fire Safety" standards to preempt state and/or local sprinkler mandates under the "broad and liberal" preemp- tion of the 2000 reform law, we can only assume that he means us. His article, though, uses the same flawed approach that he pursued while at HUD. Federal preemption is vitally important – and always has always been part of federal manufac- tured housing law -- for two reasons: (1) if en- forced properly, it prevents thousands of non-federal jurisdictions around the country from adopting a myriad of differing standards that would needlessly increase regulatory compliance costs, needlessly increase the purchase price of manufac- tured housing and needlessly exclude millions of lower and moderate-income Americans from all the benefits of home owner- ship; and (2) if enforced properly, it protects manufac- tured home owners from dis- criminatory and exclusionary mandates that not only drive up prices, but often are noth- ing more than economic or class discrimination dressed- up as something else. The entire premise of Mr. Matchneer's recent article, that some type of direct federal sprinkler standard – in this instance a supposedly "voluntary" federal standard -- is required to preempt state or local sprinkler requirements is not new. As shown by HUD documents disclosed to MHARR under the Freedom of Information Act (FOIA), the whole idea dates back to the mid-1990s and is based on what the HUD documents concede is a "narrow analysis" and "narrow construction" of federal pre- emption by the Department. And the idea that a "voluntary" federal standard could be used to pre- empt state and/or local sprinkler mandates is di- rectly linked to this "narrow" interpretation as the same documents state: "the Department … can enact specific federal standards that will result in preemption. The specific standard could … provide for [the] optional use of sprinklers." The foundation of Mr. Matchneer's argument was thus developed long before he arrived at HUD and well before Congress, in the 2000 reform law, over- ruled HUD's narrow approach to federal preemp- tion by stating that preemption "shall" be construed "broadly and liberally." When Mr. Matchneer did arrive at HUD, the record shows that he embraced the Department's old, extremely narrow interpretation of preemp- tion notwithstanding the "broad and liberal" pre- emption directive of the very law under which he was appointed program administrator. Indeed, the program's web page at the time, in a segment long since deleted, stated: "Does the 2000 Act Expand Federal Preemption? No, though revised language [in the 2000 law] does require that … preemption … be 'broadly and liberally construed,' HUD does in fact take a broad and liberal view with regard to preemption *** [a] good example is fire sprinklers." (Emphasis added). Mr. Matchneer, therefore, continued HUD's historically narrow approach to sprinkler preemption, while denying that he was doing so, and still maintains now that a "voluntary" sprinkler standard is necessary to trig- ger federal preemption, a position that is directly contrary to the 2000 law and HUD's evolving new position on preemption. When Congress passed the 2000 reform law, it was well aware of HUD's microscopic approach to federal preemption and sprinkler preemption in particular. Thus, the "broad and liberal" provi- sion of the 2000 reform law directly overruled HUD's unduly narrow pre-2000 interpretation of federal preemption. To accept Mr. Matchneer's "voluntary" federal sprinkler standard argument now, therefore, would effectively reverse Congress' enhancement of federal preemption under the 2000 reform law and validate – retroactively -- HUD's extremely narrow pre-2000 law approach to preemption. To do so would forfeit more than a decade of hard work by the industry, consumers and other pro- gram stakeholders to develop and enact the re- forms of the 2000 law, and the additional decade-plus that has been spent trying to fully and properly implement those reforms. Indeed, this would be true not only for preemption, but all of the reform provisions of the 2000 law that took 12 years, a National Commission, unanimous approval by both houses of Congress and President Clinton's signature to enact as law -- bearing in mind that \ 23