03-24-1994 Public Hearing and Regular Meeting ZBOA

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united states constitution, an ordinance must have a rational basis. See Horizon concepts. Inc. v. city of Balch sorinqs, 789 F.2d 1165, 1167 (5th Cir. 1986). An ordinance which excludes manufactured homes as a class, without referring to size or appearance, is unconstitutional. See Cannon v. Coweta county, 389 S.E.2d 329 (Ga. Sup. ct. 1990}i Robinson Township v. Knoll, 302 N.W.2d 146 (Mich. Sup. ct. 1981}i Town of Chesterfield v. Brooks, 489 A.2d 600 (N.H. Sup. ct. 1985}i Luczvnski v. Temole, 497 A.2d 211 (N.J. Super. Ch. 1985). Since the ordinance excludes all manufactured homes as a class in certain zones, the ordinance is unconstitutional. Second, the ordinance permits modular housing in R-1 zones while simultaneously excluding manufactured homes. Under the Equal Protection Clause, a municipality must have a rational basis for treating two classes differently. The method by which the structure is transported to the site, the method of construction, aesthetics and the preservation of property values are all unconstitutional reasons for treating modular housing differently than manufactured homes. See Bourqeois v. Parish of st. Tammanv, 628 F.Supp. 159 (E.D. La. 1986}i Geiqer v. Zoning Hearina Board, 507 A.2d 361 (pa. Sup. ct. 1986) i Robinson TownshiD v. Knoll, supra, 302 N.W.2d 146. Even the Supreme Court of Texas has suggested that an ordinance may be unconstitutional if it treats mobile home owners differently. See city of Brookside Villaqe v. Comeau, 633 S.W.2d 790, 796 (Tex. 1982) ("Because all mobile home owners are treated alike under [the ordinance in question], no denial of equal protection is presented"). Negative attitudes and irrational prejudices are not acceptable reasons. for treating manufactured homes differently than modular housing. See City of Cleburne. Texas v. Cleburne Livinq Center, 473 U.S. 432, 446-48, 105 S. ct. 3249, 3258-59 (1985). There is no logical basis for treating modular housing differently than manufactured homes in order to achieve a legitimate goal; therefore, the ordinance is unconstitutional. Third, Paragraph 3 of section 4-201 violates the Takings Clause of the United States Constitution because it is a per se restriction. In addition to looking at the percentage of damage, the city must look at other factors before prohibiting Ms. Stevenson from replacing her manufactured home. Specifically, the City must determine whether Ms. Stevenson's lawful, non-conforming use is a nuisance or is harmful to public health, safety, morals or welfare. See Adcock v. Kinq, 520 S.W. 2d 418, 422-23 (Tex. civ. App. -- Texarkana 1975, no writ). Since Paragraph 3 of Section 4- 201, on its face and as applied to Ms. Stevenson, does not require the City of La Porte to look at other factors before determining whether she may continue her lawful non-conforming use, the ordinance is unconstitutional under Adcock, supra. Rl124.93 - 3 -