03-24-1994 Public Hearing and Regular Meeting ZBOA

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Page 4 of 10 Zoning Board of Adjustment Minutes of March 24, 1994 and because it is a restriction on property owner's rights, it shouldn't be taken lightly. He added that the courts say that a Zoning Ordinance should be strictly enforced. It should be literally enforced in favor of validity, but once it is determined to be valid, then the terms must be strictly enforced. If the City Council and the Planning and Zoning Commission intended to prohibit the replacement of a mobile home, then they should have used the term "replacement". He stated that this was very important since Mr. Harrington had repeatedly used the words "repair" and "rebuild" yet meant "replacement". Mr. D. Brent Wells, attorney for Ms. Stevenson introduced himself to the Board. Mr. Wells wanted to express his concern about the issue raised by Mr. Capen and Mr. Harrington as to whether the Board should give due consideration to constitutional questions and questions of pre-emption by Federal and State Law. He heard Mr. Harrington state that the applicant was free to build a conventional home on the lot. He read Mr. Lewis' letters that are in the record and he has heard him say through those letters that Ms. Stevenson is free to build a modular home on the lot. Mr. Wells stated that there is no legitimate distinction that can be made at this point in the proceedings between a manufactured home on a permanent foundation system and a modular home or a conventional home. Mr. Wells asked why a modular home is perfectly acceptable but a H.U.D. manufactured home on a permanent foundation is not acceptable under this ordinance. He added that the lines that were being drawn between the H.U.D. Code manufactured home and the modular home are not lines that will withstand scrutiny under the constitution of the United States of America. He added that issues of due process and equal protection are not frivolous. They are extremely important and fundamental. He reminded the Board they should not only make their decision in light of local ordinances but also in regards to State and Federal Law. Mr. Wells stated that Federal Law is pre-empted with regard to Building Codes and Standards for manufactured housing and the state statute under the Texas Manufactured Housing Standards Act makes it very clear that a pre-1976 mobile home can and will be replaced by a H.U.D. Code home. The logic of that statute dictates that a H.U.D. Code home manufactured post-1976 should be replaceable by a H.U.D. Code home. In closing, Mr. Wells asked the Board to consider why it is that a modular home is acceptable, but a H.U.D. Code home on a permanent foundation is not.