THE STATE OF SOUTH CAROLINA
In The Supreme Court
Bibco Corporation, Appellant,
City of Sumter, Respondent.
Appeal From Sumter County
Alexander S. Macaulay, Judge
Opinion No. 24825
Heard May 14, 1998 - Filed July 27, 1998
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
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.
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
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
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.
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
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
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
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
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.
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
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
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
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
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
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.
Based upon the foregoing, we AFFIRM the trial court's ruling on both
FINNEY, C.J., MOORE, WALLER and BURNETT, JJ., concur.