Issue link: https://read.dmtmag.com/i/576094
OCTOBER 2015 20 THE JOURNAL Stand Up For Your Property Rights! BY FRANK ROLFE COMMUNITY CONSULTANT Early in my career, I put under contract the perfect manufactured home community in McK- inney, Texas. It had a terrific location in the middle of downtown, was the right size, had municipal water and sewer, and the numbers worked all day long. So I went down to City Hall to make sure that everything was in fine shape regarding permits, and a good old boy city in- spector tells me "if you buy that park, we're going to shut you down. It doesn't meet any of our current codes, and we want it out of here. It's ruining the neighborhood". So, thinking that I had no rights, I dropped the deal, only to watch a more seasoned community buyer pick up my contract, do everything that I was told couldn't be done, and make a raving success using the exact same steps that I would have taken – all without any push back from the city at all. Basically, he knew that they were just bluffing and had no legal grounds to make good on any of their threats. I learned a valuable les- son from that missed opportunity: you have to understand your legal rights as a community owner and never back down on them. A grandfathered "use" The main feature of a manufactured home community, that gives you unique property rights, is that it is a grandfathered "use" and not a grandfathered "structure". In most states, a manufactured home community is defined the same as a "parking lot" – you don't own the per- sonal property that sits in your "parking spaces", just the land. As a result, you have the right to bring "vehicles" into your "parking spaces" in perpetuity, as long as the "parking lot" was built in accordance with the law initially, as evi- denced by all the necessary permits. Although the specifications of "parking spaces" may have changed over time (such as setbacks, density, or even the zoning of the land) you are not bound by any new ordinances, only those in ef- fect when your property was built. This is called "legal non-conforming" or "grandfathered" sta- tus. You cannot lose this status, in most states, unless you abandon the use for six months (which in many states is defined as having not a single resident and ceasing a ll marketing efforts). Why inspectors often get this wrong Manufactured home communities represent what percent of a city's zoning -- maybe ½ of 1%? So most inspectors are classically trained in the rules regarding those other forms of housing, such as single-family and apartments. Those are grandfathered "structures": they were built legally initially, and the rules have changed over time such that the same building can't go back on that same lot if it's destroyed or removed. When a grandfathered single-family home burns down, you can't put it back on the lot, so you take your insurance money and buy a different house somewhere else, or build a new house on your lot subject to the current rules. To those type of structures, a vacant lot has no rights. But this has absolutely nothing to do with manufactured home communities. How to deal with the city that wo n't leave you alone So if the inspector tells you that you can't use that vacant lot because you lost your grandfa- thering when the last home was removed, you need to try and educate them on the laws of a "grandfathered use". Good luck. That works maybe 5% of the time. The other 95% requires a more aggressive posture – you need to have your attorney talk to the city attorney and get it worked out. The city attorney is normally a lot smarter, and understands the difference between a grandfathered "use" and "structure". This one step resolves about 99% of our problems on this issue (we get about three cases like this a year, due to our size). On the ones that can't be re- solved in one phone call, you may have to even file litigation but, to date, the city crumples the minute they get served. If they didn't under- stand grandfathered "use" before you file the suit, they suddenly co mprehend it when there's legal fees and punitive damages at stake. Case law is on your side – and getting more powerful every day One reason that cities are more prone than ever to back down on their stupidity is the fact that there is case law all around them that con- firms your position. Just recently, for example, the Ohio Supreme Court struck down the City of Lodi's attempt to block allowing new manu- factured homes into vacant lots inside a "grand- fathered" community. Meanwhile, the State of Missouri also established such case law in Octo- ber of 2014, when it ruled that the City of Pa- cific, Missouri could not do a similar attempt to take away that community owner's property rights, with the judge eloquently stating "zoning ordinances must permit continuation of non- conforming uses in existence at the time of en- actment to avoid violation of constitutional provisions preventing the taking of private prop- erty owners without compensation." Well said. Conclusion The days of city officials pushing around man- ufactured home community owners appear to be coming to an end. Good old boy inspectors and administrators must be biting their nails nation- wide, knowing that the truth is coming out that you have property rights far beyond their ability to harass you. That's not to say that the law is the same throughout the U.S. Any good com- munity owner needs to learn and understand the laws regarding "grandfathering" in their state. But the next time that you hear "you can't use that lot!" don't be afraid to stand up for your rights and beat down the bureaucratic bluffing that has prevailed in many markets for far too long. Hanging a "Don't Tread on Me" flag from your car antennae, however, is optional. Frank Rolfe has been a manufactured home community owner for almost two decades, and currently ranks as part of the 6th largest community owner in the United States, with more than 17,000 lots in 20 states in the Great Plains and Midwest. His books and courses on community ac- quisitions and management are the top-selling ones in the industry. To learn more about Frank's views on the man- ufactured home community industry visit www.Mobile- HomeUniversity.com. T J