Mobile loopholes? Part 1
My post a few weeks back on mobile homes and the relations between mobile home owners and landlords fetched an unexpected response, in the form of a nice email from Lori Dibble, president of the Paradise Park Homeowners Association, whose homes are under a complicated and indirect threat.
A lively electronic conversation ensued (forgive me for finding Ms. Dibble’s predicament so intriguing), in which I discovered there’s way more here than first met the eye, indeed an excellent example of a developer’s dance:
To begin with, one must look and act the part.
As we are dealing with waterfront within easy commuting distance of New York City, with abutting uses of a marina and high-end homes, accept for the moment the hardly-heroic assumption that this land will be worth much more if it could be redeveloped, but that is blocked by current zoning and current mobile home owner occupants. A developer seeking to make the most money would thus be led to the following three-step waltz:
Dancing around the statutory provisions?
- Changing the land’s permissible uses.
- Conversion to a marina or townhouses.
Knowing this might be coming, what is the appropriate public policy? What protections, if any, do or should the mobile home owners have against eviction?
As it happens there is a
A safety net, Ms. Dibble and the tenants are discovering, with a potential huge loophole.
You could drive a townhouse through it!
Before we examine the law, because the term ‘loophole’ is frequently misused, we will open with a precise definition.
Loophole
A loophole is a failure of drafting that allows an unintended escape hatch or exemption.
Some things often called loopholes are in fact not, including:
· Customized relief (one-armed-man-with-a-limp laws as they are called). A provision exempting all cities over six million people with at least five boroughs may hide its light under a bushel, but no one can say its definitions are accidental.
· Targeted incentives. We can debate their wisdom or effectiveness, but no one can say they were inadvertent.
· Earmarks. Much in the news these days, earmarks are the antithesis of a loophole: rather than allowing someone out, they specifically bring someone in for funding.
All of the foregoing are conscious policy and political choices, whereas a loophole is simply a concatenation of circumstances that, when applied to the law in question, yields a result that its drafters would categorically have rejected, had they but realized it could occur.
“I should have checked the cross-references.”
The
While I lay out the MHP Law’s protections, see if you can spot the loophole.
Get your daily allowance of eight essential quibbles and qualifiers every day!
Under the MHP Law, mobile home owners in a leasehold park have at least three types of rights:
1. Leases and full disclosure. Owners are protected from deceptive, arbitrary, or exploitive practices, with language such as this:
46:8C-2. Mobile home park fees
c. A mobile home park owner or operator shall be required to fully disclose in writing all fees, charges, assessments, rules and regulations prior to a mobile home dweller assuming occupancy in the park.
In addition, all fees, charges or assessments, including but not limited to entrance, membership or association fees, however denominated, disclosed by said mobile home park owner or operator, must be specifically related to and identifiable with actual costs incurred by the mobile home park owner or operator. [ …]
d. Failure on the part of the mobile home park owner or operator to fully disclose all fees, charges or assessments shall prevent the park owner or operator from collecting said fees.
All perfectly sound public policy seeking to allow park owners to develop and lease/ operate plots, while protecting owners from loss of choice caused by gradual ossification of their homes’ former mobility, but it has the effect of making land ownership in a mobile home into almost a regulated utility, where increases are tied to costs rather than to market alternatives.
2. Relocation on change of permissible use via variance. By themselves, the preceding provisions protect home owners against eviction-by-price-jacking, but what about simple change of use? That tool is covered, by a 1991 addition:
46:8C-21.
12. No agency of municipal, county or State government, or of any agency or instrumentality thereof, shall approve or take any other final action upon any application for a variance which would result in the removal of homes or relocation of homeowners residing in a private residential leasehold community, without first determining that adequate private residential facilities and circumstances exist for the relocation of those homeowners.
This section makes government — state, county, or local — a home owner defender, for it quite clearly precludes them from allowing a change of use via variance without making a finding that the homeowners can be relocated.
Although not specifically stated, one can infer that the relocation must be within the jurisdiction of the agency giving approval, so if a town approves the variance, relocation must occur within the town, county within county, and so on.
Strong stuff, yes?
We’re the sort who can write tough laws!
[Continued tomorrow in Part 2.]
