Lawsuit seeks repeal of zoning ordinance

By WAYNE QUESENBERRY/Staff

A modular home dealership is challenging Wytheville Town Council’s authority to regulate the placement of the dwellings it sells. In a law suit filed Oct. 29 in Wythe County Circuit Court, CMH Homes Inc., doing business as Clayton Homes 222, claims the town’s zoning ordinance 1225 is unlawful.
According to the suit, Clayton Homes 222 applied May 6 for a building permit to locate an on-frame modular home on a lot in the King Hills Subdivision which is zoned R-1. The application was denied because such homes are not permitted within an R-1, R-1A and R-1M residential district in the town.
According to the Virginia Manufactured and Modular Housing Association, there are two types of manufactured homes. The single-section home is built to completion within the factory. It is built in various lengths with usual widths of 14 to 16 feet. When completed, the single-section home is transported to the site and placed on a chosen foundation.
The multi-section home also is built in the factory but it is transported to the home site in two or more sections. Many developers and contractors prefer multi-section homes because their quality, durability and style fit perfectly with neighboring site-built homes.
A modular home is built to the state’s Uniform Statewide Building Code, the same as a site-built home. The state building code is enforced at the factory level as the home is being built rather than on the building site.
A modular home has all of the code advantages of a site-built home and all of the building condition advantages that factory construction offers.
In Virginia there is no distinction made between all off-frame and on-frame modular homes. Both are built to the Uniform Statewide Building Code and are transported to the building site by different modes of transportation.
Manufactured homes are built to the National HUD Code regulated by the Federal Department of Housing and Urban Development. Modular homes and site-built homes are built to the Virginia Uniform Statewide Code.
Under the town’s zoning ordinance, on-frame modulars homes are allowed in R-2 and R-3 residential districts.
Town council amended its zoning ordinance and adopted it March 10 following public hearings. It strictly prohibits modulars brought to the site on a steel chassis from being placed in the R-1, R-1A and R-1M residential districts.
The ordinance allows modulars brought to those sites on a flatbed trailer along with site built homes to be constructed in those three residential districts. In these three residential zoning districts where modular homes on steel chassis are prohibited, the ordinance has narrowed the permissible home foundation to a “conventional” foundation which the suit says has no basis in law and is ambiguous.
The amendment and changes further provides that modular homes on a steel chassis are allowed in four zoning districts conditioned upon the use of specified materials and construction techniques while only allowing one of the three Uniform Statewide Building Code permanent foundations.
Thomas M. Jackson Jr. of Jackson & Associates is representing CMH Homes Inc., a Tennessee corporation which owns Clayton Homes in Wytheville. He cites several ways he says the town ordinance violates the Virginia code.
According to Jackson’s claims, the town ordinance violates the state code section which states that all zoning regulations must be uniform in every class. The ordinance differentiates between site built homes and modular homes which are both built to the same uniform state building code specifications.
In the suit, Jackson says the town ordinance purports to regulate construction and material of building structures and is therefore superseded by the Uniform Statewide Building Code which would permit location of modular homes on steel chassis in that location.
He contends the ordinance unlawfully differentiates modular homes brought to the site on flatbed trailers from modular homes brought to the site on steel chassis. The ordinance, Jackson said, unlawfully attempts to regulate construction techniques used in permanent foundations which violates the state code and the Uniform Statewide Building Code.
The ordinance, according to Jackson, unlawfully discriminates between site built homes and certain kinds of modular homes on steel frames which violates state codes.
CMH Homes Inc. is asking the court to void the local ordinance and require the town to issue a building permit allowing Clayton Homes to locate a modular home in the King Hills Subdivision. It also seeks court costs from the town.
Wytheville Town Manager Wayne Sutherland said earlier this week that the town’s insurance carrier has been notified of the suit. He noted the company will decide if it will use its own attorney in the case of allow the town’s attorney Robert P. Kaase to proceed.
“I have a lot of respect for the town of Wytheville,” Jackson commented Thursday. “There is no other way to challenge an ordinance but this way.”
He also noted the suit is being carefully watched by the Virginia Manufactured and Modular Housing Association.
“They’re concerned if this type ordinance is passed in other localities,” Jackson added. “It’s an issue for people who sell on-frame modulars, too.”
Jackson noted the town passed its amended ordinance soon after controversy arose over a building permit the town issued to Eddie and Sherry Williams to locate their on-frame modular home in the Birdland Subdivision on Van Mar Drive. He is representing the Williamses in a suit brought about others in the subdivision accusing the Williamses of violating a restrictive covenant in their deed.
According to Jackson, Circuit Court Judge Josiah T. Showalter declined to dismiss the suit against the Williamses. The case is scheduled for a jury trial Feb. 10, 2009.
The Williams home is “grandfathered” by the town’s amended 1225 ordinance. It’s deemed compliant because it was in place before the ordinance was amended in March.
Wayne Quesenberry can be reached at 228-6611 or .