Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 99-cv-01359) District Judge: Honorable Gustave Diamond
Before: Roth, Nygaard and Weis, Circuit Judges
The opinion of the court was delivered by: Roth, Circuit Judge
Denise Lauderbaugh wants to install her manufactured mobile home, which complies with standards established by the Department of Housing and Urban Development (HUD), in the "R-2" residential district in the town of Hopewell. The HUD standards were created by the National Manufactured Housing Construction and Safety Standards Act (NMHCSSA), 42 U.S.C. SS 5401-5426, an act that prohibits municipalities from imposing construction and safety standards on manufactured homes that differ from the federal standards.*fn1 Hopewell has prohibited Lauderbaugh from installing her HUD home on her lot because the Hopewell zoning ordinance does not allow mobile homes in the R-2 district. Hopewell interprets its ordinance to exclude a mobile home from the R-2 district whether or not it complies with the NMHCSSA. Hopewell also interprets its ordinance to permit in the R-2 district manufactured modular homes, which comply with the BOCA/CABO Codes. We must determine if Hopewell's treatment of HUD compliant mobile homes is preempted by NMHCSSA. For the reasons stated below, we conclude that it is not clear whether Hopewell has excluded HUD homes from the R-2 district on the basis of safety and construction standards or if the exclusion is based on aesthetics and impact on property values. We will, for that reason, reverse the District Court's grant of summary judgment and remand this case for further proceedings.
In May of 1998, Denise Lauderbaugh prepared to purchase a home. She examined manufactured mobile homes sold by Larry's Homes of Pennsylvania, Inc., and selected a multi-section manufactured home which would be placed on a permanent foundation with wheels and axles removed. The home Lauderbaugh selected was a HUD home, complying with the NMHCSSA. Lauderbaugh also looked at property in Hopewell Township and discussed acquiring building permits with Hopewell's zoning officer, John Bates. Bates informed Lauderbaugh that the property she was considering was zoned "R-2" and that mobile homes were not permitted in the R-2 district. In a December 1998 letter, Bates explained that to qualify for the R-2 district, a home must be a "BOCA/CABO" home; that is, it must meet the following building codes: the 1993 BOCA building Code, the 1992 CABO One and Two Family Dwelling Code, the 1993 BOCA National Plumbing Code, and the 1993 BOCA National Fire Prevention Code. He also explained that "HUD Homes" were considered"mobile homes" and could not be located in the R-2 district, but only in the R-1 district. Bates claims that Lauderbaugh then told him that she planned to install, not a mobile home, but a BOCA/CABO compliant manufactured modular home.*fn2 Hopewell interprets its zoning ordinance to permit BOCA/CABO compliant modular homes in the R-2 district.
The Hopewell zoning ordinance allows "mobile homes" in the R-1 district, but not in any other residential district. The ordinance defines mobile homes in S 310(60) as:
A transportable, single-family dwelling intended for permanent occupancy, office or place of assembly contained in one unit or in two units designed to be jointed into one integral unit capable of again being separated for repeated towing which arrives at a site complete except for minor and incidental unpacking and assembly operations, and constructed so that it may be used without a permanent foundation.
After her contact with Bates, Lauderbaugh arranged to purchase the HUD home. She contracted to buy a parcel of land in an R-2 district in Hopewell and to have the site prepared with a permanent foundation and a basement.
She also applied for a building permit. The permit was issued, identifying the structure to be built as a "mason/frame" building proposed to be used as a single-family home. Hopewell claims that Lauderbaugh obtained her permit by misrepresentation because she had stated that she planned to place a modular home, not a mobile home, on the property. Bates contends that Lauderbaugh told him she needed the permit immediately to go to closing on the land and that she would deliver the plans for the modular home when she picked up the permit. Bates was not present when Lauderbaugh came in for the permit, and she did not deliver plans for a modular home. Lauderbaugh, on the other hand, contends that she was told by Larry's Homes that the Chief of the Pennsylvania Manufactured Housing Division had said that "the [Hopewell] ordinance did not preclude the siting of a HUD-Code home in either Zoning District R-2 or anywhere else in Hopewell Township."
On June 2 and 15, 1999, the two halves of Lauderbaugh's home were delivered to the lot. When Bates saw that she was attempting to locate a HUD home in the R-2 district, he verbally revoked her building permit and forbade the placing of the home on the foundations. He formally revoked her permit in a letter, dated July 2, stating that the permit was revoked because the home was built to the HUD Code rather than in compliance with BOCA/CABO. Soon thereafter, Lauderbaugh hired legal counsel and began to dispute the revocation of the building permit.
Lauderbaugh first filed an appeal from the formal revocation of her building permit with the Hopewell Township Zoning Hearing Board on July 19. The Zoning Hearing Board began a hearing on August 12 but continued it indefinitely for reasons that are not clear. The day after the hearing began and, despite the fact that the appeal was still pending before the Zoning Hearing Board, Bates sent a letter to Lauderbaugh demanding that she immediately remove her home because it posed a danger to the safety of neighborhood children and it was partially located on the public right of way.*fn3 Several days later, Lauderbaugh filed an appeal from that letter with the Zoning Hearing Board.
On August 17, despite the pending appeals, Bates sent Lauderbaugh's attorney another letter demanding that Lauderbaugh remove her home. This letter recognized that Lauderbaugh was appealing to the Zoning Hearing Board but nevertheless threatened to institute state court litigation to remove the home and to assess any costs against Lauderbaugh. On August 18, the Chief of the Pennsylvania Manufactured Housing Division sent a letter to the President of the Hopewell Board of Commissioners, informing him that Hopewell could not preclude Lauderbaugh from siting a HUD home in the R-2 district. Hopewell's solicitor responded that Hopewell's position remained unchanged.
To explain the basis for the exclusion of mobile homes from R-2 districts, during the preliminary proceedings in this case, Hopewell presented affidavits from Ray Antonelli and Michael Kohlman. Ray Antonelli acted as a consultant in drafting Hopewell's zoning ordinance. Antonelli stated in his affidavit that the restriction of mobile homes to the R-1 zoning district was based on three factors: (1)"mobile homes" have a lower purchase price than other types of housing and depreciate over time, eroding the Township tax base; (2) the R-1 zoning district has different lot and area requirements, reducing the density of number of"mobile homes" in the Township; and (3) "mobile homes" are "not always aesthetically comparable" to other types of housing including modular housing. Michael Kohlman was chief county assessor. Kohlman stated in his affidavit that mobile homes depreciate in value each year and, unlike other types of single family dwellings, have a unique ability to reduce the tax base in a municipality.
On August 20, 1999, Lauderbaugh and Larry's Homes of Pennsylvania, Inc., filed a complaint in the United States District Court for the Western District of Pennsylvania. The complaint alleged that Hopewell Township had violated Lauderbaugh's Fifth Amendment rights, her rights to due process and equal protection of the law, the NMHCSSA, and Pennsylvania state law. The plaintiffs also moved before the Zoning Hearing Board to continue indefinitely Lauderbaugh's appeals pending the resolution of this lawsuit.
Hopewell moved to dismiss the complaint because the action was not ripe for adjudication. The District Court denied that motion. After further proceedings, the District Court denied plaintiffs' motions for summary judgment on their procedural and substantive due process, equal protection, Fifth Amendment Takings Clause, and state law claims. The court did not grant summary judgment on the substantive due process and equal protection claims because it found that material issues of fact existed as to whether aesthetic qualities of mobile homes and their effect on property values had led to the revocation of Lauderbaugh's building permit. The District Court then did grant summary judgment in favor of Lauderbaugh and Larry's Homes of Pennsylvania, Inc., with respect to their claims under the NMHCSSA, finding that Lauderbaugh's "manufactured" home was excluded from the R-2 district ...