THE STATE OF SOUTH CAROLINA

In The Supreme Court

Bibco Corporation, Appellant,

v.

City of Sumter, Respondent.

Appeal From Sumter County

Alexander S. Macaulay, Judge

Opinion No. 24825

Heard May 14, 1998 - Filed July 27, 1998

AFFIRMED

M. M. Weinberg, Jr. and M. M. Weinberg, III, both of

Weinberg and Brown, of Sumter, for appellant.

Charles E. Carpenter, Jr. and S. Elizabeth Brosnan,

both of Richardson, Plowden, Carpenter and

Robinson, of Columbia; and Jack W. Erter, Jr., of

Lee, Wilson, Erter & Holler, of Sumter, for

respondent.

TOAL, A.J.: This case requires us to review a ruling by the City of

Sumter ("City") denying a request by Bibco to change the zoning classification

of real property owned by Bibco within the city. Bibco appealed City's ruling

to the circuit court. The circuit court dismissed Bibco's appeal, finding it

lacked merit. Bibco appeals. We affirm.

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FACTUAL/PROCEDURAL BACKGROUND

On March 20, 1996, Bibco filed with City an Application for Zoning

Reclassification.1 Bibco sought to rezone over 90 acres of its property in

Sumter from a Residential-9 ("R-9") classification to a General Residential

("GR") classification so that it could place double-wide mobile homes on its

land.2

Bibco's application was initially reviewed by the Sumter Planning

Commission Staff. The Staff recommended that Bibco's application be denied.

A public hearing was held before the Sumter City-County Planning

Commission on April 24, 1996. The Commission concluded that Bibco's

application should be denied, stating that GR zoning would be incompatible

with the R-15 zoning which surrounds three sides of Bibco's property. The

Commission forwarded its recommendation to City Council.

A final public hearing was held before the Sumter City Council on May

21, 1996. Based on its local zoning ordinance, City Council unanimously

voted to deny Bibco's application. Bibco appealed to the circuit court,

challenging the denial of its application on two grounds: (1) the local zoning

ordinance was preempted by federal law, and (2) application of the ordinance

to mobile homes violated equal protection.3 The circuit court disagreed,

dismissing Bibco's appeal.

On August 1, 1995, City approved Bibco's request to reclassify its property

as Residential-9.

2 Under the Sumter zoning ordinance, residential districts are classified

as either Residential-15, Residential-9, Residential-6, In-Town Residential

District, Residential Multi-Family District, or General Residential. Mobile

homes are only permitted in districts zoned as General Residential.

3 We note that this appeal originally arose from City's denial of Bibco's

application to rezone its property from R-9 to GR. However, Bibco's

arguments before the circuit court related to the constitutional validity of R-9

zoning, not whether City properly denied Bibco's rezoning application.

Though styled as an appeal in the circuit court, this case really involves a

direct attack on City's exclusion of mobile homes via its R-9 classification

rather than a review of the Sumter City Council's decision on May 21, 1996,

to deny Bibco's request to rezone its property.

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Bibco appeals to this Court raising the following issues:

A. Did the circuit court err in ruling that the Sumter zoning

ordinance was not preempted by the National Manufactured

Housing Construction and Safety Standards Act of 1974?

B. Did the circuit court err in ruling that the Sumter zoning

ordinance did not deprive Bibco of its right to equal protection of

the laws in violation of the Fourteenth Amendment to the United

States Constitution?

LAW/ANALYSIS

A. FEDERAL PREEMPTION

Bibco argues that the restriction in City's zoning ordinance excluding

mobile homes from R-9 districts is preempted by the National Manufactured

Housing Construction and Safety Standards Act of 1974, codified at 42 U.S.C.

§ 5401 et seq ("Federal Act"). We disagree.

The Federal Act was enacted by Congress "to reduce the number of

personal injuries and deaths and the amount of insurance costs and property

damage resulting from manufactured home accidents and to improve the

quality and durability of manufactured homes." 42 U.S.C. § 5401. Congress

has expressly defined the preemptive reach of the Federal Act:

Whenever a Federal manufactured home construction and safety

standard established under this chapter is in effect, no State or

political subdivision of a State shall have any authority either to

establish, or to continue in effect, with respect to any

manufactured home covered, any standard regarding construction

or safety applicable to the same aspect of performance of such

manufactured home which is not identical to the Federal

manufactured home construction and safety standard.

42 U.S.C. § 5403(d). The Federal Act's preemptive reach has been further

explicated in regulations promulgated by the United States Department of

Housing and Urban Development ("HUD"):

No State or locality may establish or enforce any rule or

regulation or take any action that stands as an obstacle to the

accomplishment and execution of the full purposes and objectives

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of Congress. The test of whether a State rule or action is

valid or must give way is whether the State rule can be

enforced or the action taken without impairing the Federal

superintendence of the manufactured home industry as

established by the Act.

24 C.F.R. § 3282.11 (d) (emphasis added).

The interaction between local zoning ordinances and the Federal Act

was addressed by the Eleventh Circuit Court of Appeals in Scurlock v. City

of Lynn Haven, Fla., 858 F.2d 1521 (11th Cir. 1988). The Scurlocks

attempted to place their mobile home on residentially zoned property in the

city of Lynn Haven, Florida. Their mobile home was covered by the Federal

Act and met the minimum standards imposed by it. However, in order to get

into the zoned area, their mobile home also had to comply with other local

construction and safety standards. The Eleventh Circuit found the local

zoning ordinance was preempted because it ultimately imposed greater safety

requirements than the Federal Act. The court noted, however, that it would

be permissible to restrict a zoned area to conventionally-built residences,

while excluding mobile homes altogether.

In Texas Manufactured Housing v. City of Nederland, 101 F.3d 1095

(5th Cir. 1996), the Fifth Circuit addressed an ordinance which regulated the

placement of "trailer coaches" within the city limits. Under the ordinance,

a home covered by the Federal Act ("HUD-code manufactured home") was

considered a trailer coach and, therefore, was excluded from the zoned area.

In finding no federal preemption, the court observed that plaintiffs had failed

to present any evidence that the placement of a HUD-code manufactured

home in a residential zone was conditioned upon compliance with any local

or State construction or safety standard.

In this case, City, through its zoning ordinance, excludes mobile homes

from R-9 districts. However, structures defined as "modular homes" are

permitted into such districts if they comply with the South Carolina Modular

Buildings Construction Act, S.C. Code Ann. § 23-43-10 et seq. Bibco argues

that the only difference in the definition of a mobile home and a modular

home under City's ordinance is the method of construction of the mobile

home. This, Bibco argues, is an attempt to dictate State construction

standards for HUD-code manufactured homes.

Bibco's argument must fail for the simple reason that City's ordinance

does not impose any construction or safety standard on mobile homes. The

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ordinance simply distinguishes between structures built on a permanent

chassis and those that are not and excludes the former from R-9 residential

districts. Bibco's attempt to characterize this distinction as a construction

standard is unavailing,

City's ordinance defines "mobile home" in the following manner:

A mobile home is a transportable structure of one or more

sections built on a permanent metal chassis and designed to be

towed. The term "mobile home" as used in this Ordinance shall

not include prefabricated, modular, or unitized dwellings placed

on permanent foundations, nor shall it include travel trailers,

motor homes, campers, or similar units designed for recreation or

other short term uses.

(emphasis added). Sumter's definition of mobile home tracks the Federal

Act's definition of manufactured home, which provides in pertinent part:

"'manufactured home' means a structure, transportable in one or more

sections ... and which is built on a permanent chassis. . . ." 42 U.S.C. §

5402(6).4 Thus, a HUD-code manufactured home would be considered a

"mobile home" under City's ordinance.

As for a "modular home," City's ordinance supplies the following

definition:

A building including the necessary electrical, plumbing, heating,

ventilating, and other service systems, manufactured off-site and

"manufactured home" means a structure, transportable in one or

more sections, which, in the traveling mode, is eight body feet or

more in width or forty body feet or more in length, or, when

erected on site, is three hundred twenty or more square feet, and

which is built on a permanent chassis and designed to be used

as a dwelling with or without a permanent foundation when

connected to the required utilities, and including the plumbing,

heating, air-conditioning, and electrical systems contained therein;

except that such term shall include any structure which meets all

the requirements and with respect to which the manufacturer

voluntarily files a certification required by the Secretary and

complies with the standards established under this chapter.

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transported to the point of use for installation or erection, with

or without other specified components, as a finished building and

not designed for ready removal to another site. This term is

not to be limited to residential dwellings. When meeting the

requirements of the Modular Building's [sic] Construction Act (23-

43-10 of the South Carolina Code of Laws), said building or

structure may be located in any of the county's several zoning

districts.

This is in contrast to a mobile home which, under City's ordinance, is a

structure built on a permanent chassis and, therefore, designed for ready

removal. The effect of the ordinance is to exclude from R-9 districts all

mobile homes built on a permanent chassis, i.e., HUD-code manufactured

homes. In other words, Bibco's mobile homes are excluded from R-9 districts

not because they fail to comply with some State construction or safety

standard but because they are built on a permanent chassis and designed to

be towed. This exclusion is permissible under Scurlock.

We conclude that City's differentiation between mobile homes and

modular homes does not impair the federal superintendence of the

manufactured home industry. Thus, there is no federal preemption.

II. EQUAL PROTECTION

Bibco argues that Sumter's ordinance, as applied in this case, violates

the Federal Equal Protection Clause in that there is no rational basis to

allow modular homes into the zoned area, while at the same time excluding

mobile homes. We disagree.

A municipal ordinance is a legislative enactment and is presumed to be

constitutional. Town of Scranton v. Willoughby, 306 S.C. 421, 412 S.E.2d 424

(1991). The burden of proving the invalidity of a zoning ordinance is on the

party attacking it, and it is incumbent on the attacking party to show the

arbitrary and capricious character of the ordinance through clear and

convincing evidence. Id.

The Equal Protection Clause proclaims, "No State shall ... deny to any

person within its jurisdiction the equal protection of the laws." U.S. Const.

amend. XIV, § 1. If there is no suspect or quasi-suspect class and no

fundamental right is involved, zoning ordinances should be tested under the

"rational basis" standard. Haves v. City of Miami, 52 F.3d 918 (11th Cir.

1995). There are three steps in determining whether an ordinance survives

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rational basis scrutiny under the Equal Protection Clause: (1) whether

plaintiff was treated differently than others similarly situated; (2) whether

defendant intentionally discriminated against plaintiff and had a rational

basis for doing so; and (3) whether the discrimination/classification bears a

rational relationship to a legitimate government purpose or goal. Baggs v.

City of South Pasadena, 947 F. Supp. 1580 (M.D. Fla. 1996); accord Peoples

Program for Endangered Species v. Sexton, 323 S.C. 526, 476 S.E.2d 477

(1996).

In determining whether there is a legitimate government purpose, the

actual motivations of the enacting governmental body are entirely irrelevant.

A reviewing court need only decide what goals the government body could

have been pursuing. Haves v. City of Miami, 52 F.3d 918 (citing F.C.C. v.

Beach Communications, 508 U.S. 307, 113 S. Ct. 2096, 124 L. Ed.2d 211

(1993)).

In addition to the purpose stated in the ordinance -- preserving land for

low density, single-family dwellings -- City offers the following justifications

for excluding mobile homes from certain residential districts in Sumter:

protection of surrounding property values, guarding against increased crime,

guarding against increased traffic flow and congestion, and maintaining

aesthetics. Other courts have sustained the exclusion of mobile homes from

residential districts based on these and other concerns. See Texas

Manufactured Housing Assn, 101 F.3d 1095 (affirming the grant of summary

judgment where it was "at least debatable" that zoning protected surrounding

property values); Clark v. Winnebago Co., 817 F.2d 407 (7th Cir.

1987)(regulating population density); Colby v. Hurtt, 509 P.2d 1142 (Kan.

1973)(concern that mobile homes might stunt growth of city); Duggins v.

Town of Walnut Cove, 306 S.E.2d 186 (N.C. Ct. App. 1-983)(Protection of value

of surrounding homes); Brookside Village v. Comeau, 633 S.W.2d 790 (Tex.

1982)(concerns about potential waste and sewage problems).

In the instant case, Bibco relies upon Cannon v. Coweta County, 389

S.E.2d 329 (Ga. 1990) in arguing Sumter's ordinance violates equal

protection. In Cannon, an ordinance excluded mobile homes from all

residential zones except manufactured-home parks. The Georgia Supreme

Court concluded that the ordinance violated substantive due process because

it was arbitrary and unreasonable. The court found the party challenging the

ordinance satisfied its burden of proof based on evidence that there was a

public need for manufactured housing in residential districts; that the modern

manufactured home is as safe and attractive as site-built housing; that

manufactured homes do not devalue nearby site-built homes; and that

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manufactured homes should not, if valued properly, adversely affect the

county's tax base. Cannon, 389 S.E.2d at 331.

We find that Bibco has not shown through clear and convincing

evidence that City's ordinance is arbitrary and capricious as applied to mobile

homes. In this case, unlike Cannon, mobile homes are not excluded from all

residential districts. They are merely limited to General Residential districts.

Moreover, in Town of Scranton, 306 S.C. 421, 412 S.E.2d 424, we upheld a

municipal ordinance even more restrictive than the one challenged in this

case. There, the municipal ordinance excluded mobile homes from all areas

except mobile home districts.

CONCLUSION

Based upon the foregoing, we AFFIRM the trial court's ruling on both

issues.

FINNEY, C.J., MOORE, WALLER and BURNETT, JJ., concur.

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