3: Control of Land Use by Zoning
C. The Basic
Zoning Techniques: Use, Bulk, and Density Controls
ROBINSON TOWNSHIP v. KNOLL
410 Mich. 293, 302 N.W.2d 146
In this case we revisit the holding of Wyoming Twp. v. Herweyer,
[33 N.W.2d 93 (Mich. 1948),] and consider whether a municipality
constitutionally may provide that mobile homes are to be sited only
in mobile home parks and exclude all mobile homes from other residential
Robinson Township commenced this action against Donald and Merle Knoll,
seeking removal of a mobile home from their 80-acre parcel of land.
Count I of the complaint alleged that the use of the mobile home was
contrary to §_307.1 of the township's zoning ordinance,
(1) which provides that mobile homes may be located only in
mobile home parks, and to §_1302.1 of the ordinance, which requires
that a building permit be obtained before the erection of a building
or structure on any property in the township. Count II alleged that
because of violation of the same sections of the ordinance, the mobile
home was a nuisance per se.
The answer raised affirmative
defenses based on the unconstitutionality of the ordinance in that it
arbitrarily and capriciously prohibits a proper land use, and is overbroad,
failing to establish clear standards to be observed by property owners
and citizens of the township.
Trial was had on stipulated
facts, including: the home had been placed on the parcel; the parcel
was not a mobile home park; no building permit had been obtained; and
the Knolls had dug a well, obtained a septic permit, applied for power
from Consumers Power Company, cleared trees for a roadway and erected
a rail fence around the site. No claim was made that the dwelling was
not a mobile home within the meaning of the ordinance.
The trial judge, citing
Wyoming Twp. v. Herweyer, held that "unless and until such
decision is reversed," the provision that mobile homes are permitted
only in mobile home parks was valid, and accordingly ordered removal
within 30 days....
We agree with the Court
of Appeals that the ordinance is unconstitutional, but on other grounds.
(1) The per se exclusion
of mobile homes from all areas not designated as mobile home parks has
no reasonable basis under the police power, and is therefore unconstitutional.
[Const. 1963, art. I, §_17.]
The reasoning on which
the rule of Wyoming Twp. v. Herweyer was based is no longer
valid in light of improvements in the size, quality and appearance of
mobile homes, and that decision and cases to the same effect are overruled
as to housing that is not a "trailer."
We add, however, that a
municipality need not permit all mobile homes, regardless of size, appearance,
quality of manufacture or manner of on-site installation, to be placed
in all residential neighborhoods. A mobile home may be excluded if it
fails to satisfy reasonable standards designed to assure favorable comparison
of mobile homes with site-built housing which would be permitted on
the site, and not merely because it is a mobile home.
The Robinson Township ordinance
embodies a per se rule segregating mobile homes from residential zones
that are not mobile home parks, and is therefore unconstitutional.
(2) The complaint also
alleged violation of the provision of the zoning ordinance relating
to building permits. A building permit could not have issued because
of the per se rule confining mobile homes to mobile home parks. It necessarily
would have been futile for the Knolls to apply for one. For this reason,
the township is entitled to no relief based on the Knolls' failure to
apply for a building permit.
(3) We intimate no opinion
whether building code provisions may now be invoked against the Knolls,
leaving that question for consideration by the circuit court should
the township seek further relief on that basis.
We vacate the judgment
of the Court of Appeals, and remand to the circuit court for further
proceedings not inconsistent with this opinion.
the state have assumed the continuing validity of the rule of Wyoming
Twp. v. Herweyer in drafting their ordinances. We reserve the question
whether our decision overruling that opinion as applied to housing other
than "trailers" should be applied retroactively in other pending cases
or to other ordinances and, if so, whether retroactivity should be conditioned
upon compliance with reasonable standards designed to assure favorable
comparison of the mobile home in question with site-built housing which
would be permitted on the site. (2)
In Kropf v. Sterling
Heights, [215 N.W.2d 179 (Mich. 1974),] this Court said that "[a]
plaintiff-citizen may be denied substantive due process by the city
or municipality by the enactment of legislation, in this case a zoning
ordinance, which has, in the final analysis, no reasonable basis for
its very existence."
A "reasonable basis" must
be grounded in the police power, (3)
which this Court has defined as including "protection of the safety,
health, morals, prosperity, comfort, convenience and welfare of the
public, or any substantial part of the public." [Cady v. Detroit,
286 N.W. 805 (Mich. 1939).]
The township's argument
based on the land planning principle that like uses should be grouped
and incompatible uses kept separate begs the question raised by the
appeal: do mobile homes differ from other single-family dwellings in
any constitutionally cognizable manner which would justify their per
se classification as a different use? If not, then the ordinance limiting
mobile homes to mobile home parks has "no reasonable basis for its very
In Kropf, we reaffirmed
the principle that "'[w]hile an ordinance must stand the test of reasonableness,
the presumption is in favor of its validity and courts may not invalidate
ordinances unless the constitutional objections thereto are supported
by competent evidence or appear on their face.'"
The Knolls, having failed
to produce any evidence in the circuit court, can succeed only if the
rule that no mobile home may be located outside a mobile home park is
invalid on its face.
We believe that it is.
Wyoming Twp. v. Herweyer,
holding that a municipality may constitutionally limit trailers
to trailer parks, would seem to be dispositive of this case, and was
so treated by the trial judge. We conclude, however, that it does not
That case, decided over
thirty years ago, dealt with trailers. Today, we consider the per se
exclusion not of trailers, but of mobile homes -- and more than the
label has changed with time. The mobile home today can compare favorably
with site-built housing in size, safety and attractiveness. To be sure,
mobile homes inferior in many respects to site-built homes continue
to be manufactured. But the assumption that all mobile homes are different
from all site-built homes with respect to criteria cognizable under
the police power can no longer be accepted.
Section 203 of the township's
zoning ordinance defines "mobile home" as "[a] movable or portable dwelling
constructed to be towed on its own chassis, connected to utilities and
designed without a permanent foundation for year-round living as a single-family
If mobile homes are to
be excluded from all residential zones in Robinson Township other than
mobile home parks, it cannot be because they are "movable or portable."
Site-built homes are "movable or portable," although they are rarely
We note in this regard
that §_500.2 of the township's building code (4)
specifically provides for the issuance of moving permits to allow the
relocation of one- or two-family dwellings from outside the township
or from another location within the township. Any dwelling covered by
§_500.2 is, by the township's definition, movable. It would be arbitrary
to discriminate against mobile homes on that basis.
Nor do the criteria "constructed
to be towed on its own chassis" and "designed without a permanent foundation"
identify characteristics which justify the exclusion and segregation
of mobile homes.
One can agree that a community
has a legitimate interest in safeguarding residents against, for example,
windstorm damage, justifying a requirement that a mobile home be firmly
attached to a solid foundation on the site. And a municipality may reasonably
conclude that a dwelling the wheels and chassis of which are exposed
is unsightly or is likely to lead to transience and should not be tolerated
alongside site-built homes. These and similar considerations would justify
requirements that certain on-site modifications be made as a condition
to placement of a mobile home in an area not a designated mobile home
park. The ordinance governing moving permits, discussed above, employs
such a mechanism. (5)
Just as "the reasonableness
of a zoning restriction must be tested according to existing facts and
conditions and not some condition which might exist in the future,"
[Christine Building Co. v. Troy, 116 N.W.2d 816 (Mich. 1962),]
so must an ordinance restricting the placement of mobile homes be directed
to the dwelling as it will exist on the land, and not, as here, to its
characteristics when delivered to the site.
While the characteristics
specified in the ordinance are not themselves a basis for the disparate
treatment of mobile homes, they do serve to identify "the mobile home."
If that label implies the existence of other (but unspecified) characteristics
which provide a basis for restricting mobile homes to mobile home parks,
there is a valid purpose for the ordinance.
We are unable to identify
any inherent characteristics of mobile homes that justify the per se
rule of the ordinance.
Amicus curiae Michigan
Townships Association argues that the segregation of mobile homes is
justified on aesthetic grounds.
It appears that mobile
homes can be designed or modified to compare favorably in appearance
to many site-built homes. There is no longer reason to presume that
mobile homes will fail to live up to a community's aesthetic standards.
Reasonable requirements to assure favorable comparison with those standards,
of course, can be imposed by a municipality.
Concerns based in health
and safety are also illusory. A municipality, again, is free to deal
with concerns of this type in a reasonable code. Standards to assure
that mobile homes compare favorably to other housing in, for example,
insulation, adequacy of plumbing, and size of the living space exist
(6) or can be imposed. And, as we have noted, a community
may impose requirements to assure protection from windstorm damage.
Another concern that has
been voiced is that mobile homes are given to transient use. The practical
necessities attending the installation of a single mobile home in an
area in which site-built housing is allowed, along with conditions (such
as those discussed above) that a township might reasonably attach to
such mobile home use, vitiate this cause for concern. A parcel of land
of sufficient size to meet community standards probably will have been
purchased by the mobile home owner. Utility lines may be installed to
the site; the municipality may require that a foundation to which the
home will be firmly attached be laid, and other on-site modifications
may be made to bring the mobile home and the parcel on which it is located
into conformity with community aesthetic standards. In light of the
investment required to so install a mobile home as a single family dwelling,
it is unreasonable to assume the mobile home dweller will stay only
a short time. (7)
The disparate treatment
of mobile homes seems to be based on attitudes which once had but no
longer have a basis in fact:
"Community fear of blight
can be traced to the low quality of both the early trailers and their
parking facilities. Economic conditions of the 'thirties, followed by
wartime housing shortages and rapid relocations of the labor force,
pressed many thousands of unattractive trailers into permanent use.
Often these units were without running water or sanitary facilities.
There were no construction standards to insure even minimum protection
against fire or collapse. They were parked in areas which were usually
crowded, poorly equipped, and generally unsuited to residential use.
As a result, conditions in these parks seldom exceeded minimum health
and sanitation standards. The specter of such parks teeming with tiny
trailers made community apprehension understandable. But substantial
improvements in the quality of both mobile homes and park facilities
may have undermined the bases for this antipathy today. The mobile home
currently produced is an attractive, completely furnished, efficiently
spacious dwelling for which national construction standards have been
adopted and enforced by the manufacturers' associations." [Note, Toward
an Equitable and Workable Program of Mobile Home Taxation, 71 Yale
L.J. 702-703 (1962).]
Decisions from other jurisdictions,
while not directly on point, support the view that per se discrimination
against mobile homes can no longer be legitimized.
In holding that mobile
homes intended to be used as permanent dwellings are taxable as real
property, the New Jersey Supreme Court explained that '[t]he early house
trailers, which originated a half century ago, have been described as
makeshift contraptions 'not really fit for permanent human habitation.'
... That they were then viewed as personal property can have little
relevance when dealing with modern mobile homes.... These modern homes
not only have all of the facilities of conventional homes, including
sewage, water, lighting, heating and air conditioning, but also are
more and more being constructed to look like and be used as conventional
homes." [Koester v. Hunterdon County Board of Taxation, supra.]...
[The court discussed similar
holdings in other cases.]
Moreover, Robinson Township's
building code allows for prefabricated housing which is assembled at
the site. (8) There can be no reasonable
basis for distinguishing between mobile homes and other prefabricated
dwellings. Both are "movable or portable," and may be similar in appearance
and constructed of similar materials. It is not a valid basis for distinction
under the police power that one is not only prefabricated but also preassembled,
and "constructed to be towed on its own chassis."
This is not to say that
a municipality must permit all mobile homes, regardless of size, appearance,
quality of manufacture or manner of installation on the site, to be
placed wherever site-built single family homes have been built or are
permitted to be built. Nor do we hold that a municipality may no longer
provide for mobile home parks. We hold only that a per se restriction
is invalid; if a particular mobile home is excluded from areas other
than mobile home parks, it must be because it fails to satisfy standards
designed to assure that the home will compare favorably with other housing
that would be allowed on that site, and not merely because it is a mobile
We affirm the finding of
the Court of Appeals that the ordinance is unconstitutional but vacate
its judgment and remand to the circuit court for further proceedings
not inconsistent with this opinion. No costs, a public question.
Coleman, Chief Justice
[Most of the dissent is
omitted, but the following comments on the differences between mobile
and conventional homes is of interest:]
Although the construction
of some modern mobile homes has improved and the area of some has been
enlarged, basic differences between mobile homes and site-built homes
remain. By definition, a mobile home is built without a permanent foundation
and must be of a weight and dimensions that can be towed on a highway.
They are more susceptible to windstorm and fire damage, which increases
the possibility of injury to persons and property in the surrounding
area. The police power extends to imposing reasonable regulations to
safeguard residents and others against the dangers of such damage.
Plaintiff notes additional
problems caused by a general lack of storage space in mobile homes.
This lack of storage space may result in personal property being stored
outside or the addition of lean-tos. Plaintiff notes that various practical
problems result from these conditions.
Also, because a mobile
home is designed to be towed on its chassis, they may lead to transience.
Increased transience may also result in unsightly and possibly dangerous
conditions in the land when the mobile home is removed. Even if the
mobile home remains in one spot, it is generally subject to more rapid
deterioration than a site-built home. Further, it would be unreasonable
to assume or take judicial notice of the conclusion that all mobile
homes compare favorably with site-built homes.
As provided in the statute,
classifications may take into consideration the preservation of property
values. (9) Accordingly, one widely acknowledged,
reasonable governmental interest is the preservation of property values.
The value of a piece of property or of property in a zone is dependent
not only on the intrinsic nature of the property but also upon the nature
and uses of neighboring property. For the most part, even the best of
mobile homes (e.g., double-width homes towed in two parts,
mobile homes with bay windows on the ends, a porch attached or decorator
steps, etc.) are significantly different from site-built homes or are
so perceived by many. This perception can have a significant effect
on property values if mobile homes are scattered throughout any residential
district. Regardless of whether the perception is valid, restricting
mobile homes to designated areas furthers governmental interests by
furthering the safety, sanitary and recreational needs of the occupants
and others, and by grouping like uses together.
With only these surface
considerations, it becomes apparent that the defendants have not overcome
the burden of proving that there is no room for a legitimate difference
of opinion concerning the reasonableness of this classification. The
defendants have not overcome the presumption of constitutionality.
"Mobile Homes -- Where Permitted: Mobile homes are considered
as dwelling units and are not permitted as an accessory use to a permitted
principal use and are permitted only in approved mobile home parks."
Robinson Township Zoning Ordinance, §_307.1.
This case was tried on a stipulation of facts. The record shows that
the mobile home placed on the Knolls' land is 14_ x 70_, and that some
improvements have been made. There is no indication that this mobile
home is of a kind that the township could exclude. Our decision, however,
is not based on a determination that this mobile home could not constitutionally
power of the city to enact ordinances is not absolute. It has been given
power by the State of Michigan to zone and regulate land use within
its boundaries so that the inherent police powers of the state may be
more effectively implemented at the local level. But the state cannot
confer upon the local unit of government that which it does not have.
For the state itself to legislate in a manner that affects the individual
right of its citizens, the state must show that it has a sufficient
interest in protecting or implementing the common good, via its police
powers, that such private interests must give way to this higher interest."
The section provides in part: "Moving Permit: Any person desiring
to move any one or two-family dwelling and/or accessory building from
outside of the Township limits to any location within the township or
from one location to another location within the township shall file
a written application for a moving permit with the Township Board of
Appeals. Said application shall set forth the present location of said
building and/or buildings, the location of [sic] which said building
or buildings are proposed to be moved within the township, the age of
the building or buildings, a statement as to whether or not the building
or buildings comply with the requirements of the building code and if
not what improvements applicant proposes to make to bring said building
or buildings in compliance with the building code. The application shall
be accompanied by a site map as required by Sec. 501.1 of the Building
Code and said map shall clearly indicate front, side and rear yards
as required by Sec. 501.2 of the Building Code." Robinson Township Building
Board of Appeals shall make or cause to be made an investigation in
regard to such application, and if it be determined that the building
and/or buildings complies with and is in conformity to the Robinson
Township Building Code or will be brought into conformity with said
code by the applicant and that such building and/or buildings at the
proposed new location will not be injurious to the contiguous property
and the surrounding neighborhood, the Board of Appeals may grant a moving
permit, and if the applicant is required to make any improvements or
changes to bring said building or buildings into conformity with the
Building Code the permit shall specify such requirements. If any improvements
or alterations in the amount of $200.00 or more are required, the applicant
shall apply for and secure a permit for such alterations pursuant to
this ordinance before moving said building and/or buildings under the
moving permit issued by the Board of Appeals.
"The foundations and all
other new portions, improvements or alterations to said building or
buildings shall be constructed in conformity with the Township Building
Code and the use, location of said building or buildings and yard areas
shall conform to the Robinson Township Zoning Ordinance and Building
Code." Id., §_500.2.
See Department of Housing and Urban Development, Mobile Home Construction
and Safety Standards, 24 CFR §_3280.
See A Comparison Between
HUD's Mobile Home Construction and Safety Standards (1975) and Building
Officials and Code Administrators (BOCA) Single Family Dwelling Code
(1975), which is Appendix C in the brief of amicus curiae Manufactured
Housing Institute, Inc.
"At their location [mobile homes] are removed from the axles and wheels
and placed on concrete pads and piers each about 6 to 7 feet apart.
In addition, with units constructed during the last 3 years, hurricane
bands built into the walls of the units are anchored with bolts augered
3 to 4 feet into the ground.
"[O]nce put in place and
made immobile, they are often skirted around their bases. According
to plaintiffs' witness, between 75 and 80 percent of mobile homes once
located are never moved. When they are moved, it takes approximately
three days to dismantle the mobile home and set it up for moving, and
several more days to replace it in its new location. At present prices
moving expenses will range from $500 for a single-wide, to $1000 for
a double-wide." Gates v. Howell, 282 N.W.2d 22 (Neb. 1979).
"It need hardly be pointed
out that these double width homes are intended to remain on site permanently,
and that their removal by cranes or other heavy machinery would undoubtedly
entail considerable difficulty and oftentimes considerable damage to
the landscape. Insofar as the single width homes are concerned their
removal would also entail some difficulty since in their current models
they may be as much as seventy feet long and fourteen feet wide. Here,
as with the double width homes, the intent that they remain on site
permanently is entirely evident." Koester v. Hunterdon County Board
of Taxation, 399 A.2d 656 (N.J. 1979).
Transient use could be
expected, if at all, only of mobile homes located in, rather than away
from, mobile home parks. But even this expectation is not supportable
in fact, for "[w]hile mobile homes were originally for transient purposes,
today about 60% of all mobile homeowners never move their home. The
MHMA [Mobile Home Manufacturers' Association] reports that the average
stay in one location by mobile home owners is 58 months, which is approximately
the same residency duration as in conventional housing. About 70% of
the mobile homes used since World War II have been used as permanent
dwellings." Neithercut, The Mobile Home: Problems With Its Recognition
as a Valid Housing Source, Newsletter, Real Property Section, State
Bar of Michigan (No. 10, Dec., 1975), p. 25.
"Approval of Alternate Types of Construction and Materials. --
The building inspector may approve the use of types of construction
such as prefabricated houses or materials that vary from the specific
requirements of this Code if, (1) such alternate types of construction
or materials comply with the recommended standards of government agencies
or other national organizations which publish recognized standards relative
to building materials and workmanship, or, (2) reports of agencies or
laboratories generally accepted as competent by engineering authorities
indicate that alternate materials or construction equal or exceed the
applicable Code requirements." Robinson Township Building Code, §_102.
Although the preservation of surrounding property values and characteristics
may not be sufficient by itself to justify these zoning restrictions,
see Senefsky v. Huntington Woods, 12 N.W.2d 387 (Mich. 1943),
these factors may be taken into consideration along with the other factors
mentioned above, see M.C.L. §_125.273; M.S.A. §_5.2963(3).
This Site Articles
Technical problems? Email