Issue link: https://read.dmtmag.com/i/647244
MARCH 2016 19 THE JOURNAL countable installation contractor) seeks to use the State Plan approval and re-certification process to over-ride and replace – or compel state officials to revise, modify and replace – state-adopted installation standards in complying states. This HUD activity, thus far, has been most prominent in New York, but has the po- tential to spread much further with dire conse- quences not only for consumers and the industry, but also for the co-equal federal-state partnership that Congress envisioned for the HUD program. To make matters worse, at the same time that HUD is seeking to force its federal installa- tion standards on state authorities, a recent rul- ing by the HUD program Administrator (which never should have been issued), in a case emerging from Wisconsin, would erode state in- stallation authority – once again in a complying state --from the other end of the spectrum, while potentially subjecting industry businesses and consumers to thousands of varying and costly local installation standards. In that January 2016 ruling, the HUD pro- gram Administrator declared that the federal manufactured housing installation standards do not preempt a local installation mandate (dressed-up as a "zoning" provision) requiring that HUD Code homes in certain zones be in- stalled over a full basement or "foundation." Again, this decision arises directly from HUD's "re-codification" of installation outside of the fully-preemptive Part 3280 Federal Manufac- tured Home Construction and Safety Standards. Intervening in a matter that should have been resolved within the affected state based on state law and the adoption of a fully-compliant, HUD-approved state installation program and state installation standards, HUD has, instead, with this action, opened the floodgates for po- tentially thousands of inconsistent, costly, un- necessary and, in at least some cases, exclusionary local mandates, based its ongoing fundamental misreading and misinterpretation of the 2000 reform law (i.e., re-codification). And again, this was predicted years ago by MHARR. In a 2008 MHARR Viewpoint, enti- tled "Re-Codification … A Key Interpretation Missed by Nearly All," then-MHARR President and CEO Danny Ghorbani stated: "By legally separating the construction of the home in the factory and the place- ment of that home where it can be used by a consumer, and by controlling each part separately … HUD's interpretation of the 2000 Act prevents HUD Code homes from ever being viewed as "houses"…. *** The full impact of this interpretation will begin to be felt when thousands of localities in default states … realize that the federal installation stan- dards – because they are not "construc- tion" standards as interpreted by HUD – are not preemptive. This will open the door to the [erosion], in large segments of the country, of all three elements of the federal law that make HUD Code housing both affordable and marketable – a performance-based code, uniform standards and uniform enforcement. And once localities in default states begin to take advantage of this freedom, it will not be long before the same freedom is demanded – and exercised – by localities in compliant states. This process will emerge slowly, but it will emerge, be- cause there will be nothing to stop it un- less the law (or HUD's interpretation…) is changed." (Emphasis added). At a time when millions of Americans are re- pulsed by a Washington, D.C. "establishment" that seems to be out-of-touch with reality and the concerns of average citizens, this is a perfect example of a well thought-out, common sense law being botched by unaccountable regulators and contractors (with the continuing support of the usual industry groups), resulting in a bizarre regulatory mess that will ultimately cost the in- dustry and consumers dearly, while undermin- ing the federal-state partnership that is at the heart of the law. In MHARR's view, having failed once al- ready by letting the Department have its way on re-codification, the industry, states and con- sumers need to take a strong stand and fight both elements of this HUD effort to co-opt state au- thority on installation while burdening both the industry and consumers excessive and needless regulatory compliance costs. Mark Weiss is President & CEO of the Manufac- tured Housing Association for Regulatory Reform. MHARR is a Washington, DC-based national trade association representing the views and interests of in- dependent producers of federally-regulated manufac- tured housing. Mark can be reached at 202-783-4087. HWC M NEW HOME WARRANTIES No. 11 on Get It Quick Page T J