Issue link: https://read.dmtmag.com/i/609009
DECEMBER 2015 14 THE JOURNAL Combating Discriminatory Exclusion – Part One MHARR VIEWPOINT BY MARK WEISS The Manufactured Housing Improvement Act of 2000, as one of its primary legislative purposes, directs the Department of Housing and Urban De- velopment to "facilitate the availability of afford- able manufactured homes and to increase homeownership for all Americans." As a funda- mental statement of national housing policy, this objective applies to all aspects of the 2000 reform law, and all elements of the 2000 law, including its enhanced federal preemption (as detailed later), must be construed and applied in light of this purpose. Since the enactment of the 2000 re- form law, though, production and shipments of HUD Code manufactured homes, on a per annum basis, have declined by more than 74 percent. While HUD, to be certain (and to be fair), can- not be blamed for all of this contraction, the in- dustry's severe decline -- together with other indisputable evidence -- shows that the Depart- ment has not lived-up to Congress' direct man- date to expand the availability and use of affordable manufactured housing by Americans nationwide. Having reached this conclusion, the next necessary step is to identify how and why HUD has failed, and what must be done to rectify and reverse that failure. The issue, however, is an exceedingly complex one, as illustrated by mis- conceptions reported among some more recent ar- rivals in the industry, who were not around for the ultimate development of the 2000 reform law. In actuality, the 2000 reform law contains two "facilitation" directives – the broad facilitation di- rective of section 602(b), quoted above, which instructs HUD to facilitate the availability of man- ufactured homes for all Americans, and the more targeted facilitation directive of section 623(a), which instructs HUD to "facilitate[e] the accept- ance of the quality, durability, safety and afford- ability of manufactured housing within the Department." (Emphasis added). Consistent with this statutory structure, HUD's failure to comply with the twin "facilitation" directives of the 2000 reform law can be divided into two distinct – but related (from a causal perspective) – analyti- cal categories: (1) internal failures (i.e., failures within HUD itself); and (2) external failures (i.e., failures outside of HUD), including fail- ures in the proper application and use of enhanced federal preemption under the 2000 law. These failures are causally related as they derive from HUD's broader refusal to fully and properly im- plement all reform aspects of the 2000 law, in- cluding its mandate for an appointed, non-career manufactured housing program administrator, which has denied the industry and consumers the type of accountable representation and policy clout within HUD that the law intended. In turn, the resulting amalgam of negative marketing, place- ment, financing and other outcomes, are an out- growth of long-standing industry weakness in Washington, D.C., including the absence of in- dependent national representation for the indus- try's post-production sector. Examples of "internal" HUD failures to "facili- tate" the acceptance of manufactured housing contrary to the 2000 reform law are legion, and continue to mount daily. They include, but are not limited to: (1) the strategic – i.e., the total exclusion of HUD-regulated manufactured hous- ing (as an affordable housing and homeownership resource) from HUD's own 2014-2018 Strategic Plan (and the 2010-2015 Strategic Plan before that); (2) the structural – i.e., the consignment of the federal manufactured housing program to a policy "no-mans' land," buried in a "risk manage- ment" office all but cut-off from mainstream hous- ing policy development and decision-making within the Department; and (as a consequence of both previous factors) (3) the programmatic -- i.e., the glaring failure to include HUD-regulated manufactured housing in a multitude of affordable housing programs administered by HUD and other federal agencies. To illustrate the latter, HUD, on October 21, 2015, announced a joint program with the Veter- ans Administration "to offer a permanent home and supportive services to Native American vet- erans who are experiencing or at risk of experi- encing homelessness." (Emphasis added). Given the wide-scale presence and community accept- ance of manufactured homes in tribal areas, the inclusion of HUD Code homes in this initiative – as a source of "permanent" homeownership -- should have been a given. Instead, though, the Department, ironically citing "the limited availabil- ity of housing stock on or near reservations," plans to provide "rental assistance" (through "vouchers") and other undescribed "supportive services" to the veterans. Not one word, though, about inher- ently affordable manufactured housing – and this is just one minor example, among many. On the "external" side of the ledger, matters are, if anything, even worse, as the industry reaps the consequences of its prolonged failure to ag- gressively advance full compliance, not only with production-related aspects of the 2000 reform law but, just as importantly, aspects related to the post-production environment, leading to a long and debilitating string of marketing, placement, zoning and financing calamities for the industry and consumers. In particular, the absence of a dedicated, independent national representation in Washington, D.C. for the industry's post-pro- duction sector, has allowed HUD and other gov- ernment (and government-sponsored) entities that effectively control the flow of housing avail- ability throughout the nation, to engage in -- or turn a blind eye toward – pervasive discrimination against the industry, its product(s) and its home- buyers. And it is an aspect of that discrimination --discriminatory exclusion – that will be addressed by the balance of this article. Simply put, the availability of affordable man- ufactured homes cannot be facilitated and home- ownership cannot be "increased for all Americans," as commanded by the 2000 law, if manufactured homes are effectively excluded from large swaths of the nation – and particularly from areas where the largest concentrations of home- owners and the largest concentration of Americans in need of affordable housing and homeownership are to be found. Typically dressed-up and passed- off as "zoning" measures, these exclusionary edicts discriminate against HUD Code manufactured homes as such – segregating HUD Code homes as a separate and (presumptively) inferior class apart from all other types of single-family homes. More importantly, though, they discriminate against manufactured home owners – segregating them, along de facto economic, class, age and racial lines from owners of other types of single-family homes in a manner that is tantamount to govern- ment-sponsored "red-lining" – a practice outlawed decades ago. The link between such exclusion- ary edicts and illegal discrimination is explained in numerous legal and policy publica- \ 21