Could Tallulah bar new mobile homes and force existing ones to move under a zoning ordinance?

Plain-English summary

Tallulah asked whether it could restrict mobile homes by zoning and apply that restriction to homes already in the city. The AG said the city had authority to regulate locations prospectively. Retroactive enforcement against existing mobile homes, trailers, and modular homes was different: it might be unconstitutional if it forced owners to remove property without due process or just compensation.

The opinion discussed lawful preexisting uses that remain after a zoning change as nonconforming uses. It did not make a final taking determination for any specific home. It said that question depended on facts.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could Tallulah limit where future mobile homes were placed?

The AG said yes. The constitution and LSA-R.S. 33:4721 gave municipalities zoning authority over the location and use of buildings and land.

Could the city force existing mobile homes to move under the new rule?

The AG warned that retroactive application might violate constitutional property protections. It did not decide a specific owner's taking claim.

What is a nonconforming use in this opinion?

It described a use that was lawful before the zoning ordinance and remained afterward even though the new zoning rule would not permit it.

Background and statutory framework

Article VI, Section 17 of the Louisiana Constitution and LSA-R.S. 33:4721 supported municipal zoning. The opinion cited Louisiana decisions on nonconforming uses and takings and said whether Tallulah's retroactive rule was an unconstitutional taking was a factual question.

Citations

• LSA-R.S. 33:4721 (municipal zoning).
• Louisiana Constitution, Article VI, Section 17 (local zoning authority).
• Redfearn v. Creppel and Layne v. City of Mandeville (nonconforming use and takings).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/04-0047

Original opinion text

March 25, 2004
OPINION NO. 04-0047

Honorable Theodore Lindsey
Mayor, City of Tallulah
204 North Cedar Street
Tallulah, Louisiana 71282

Dear Mayor Lindsey:

Your request for an Attorney General’s opinion has been forwarded to me for research and reply. Specifically, you ask if your city council can pass a zoning ordinance which restricts the moving of mobile homes into Tallulah?

You also ask if this restriction on mobile homes can be applied retroactively?

Your first question is answered by Article VI, Section 17 of the Louisiana Constitution of 1974. This constitutional provision gives local governmental subdivisions the authority to adopt regulations for zoning and to create commissions and districts to implement those regulations. Also, LSA-R.S. 33:4721 - 4729 set forth the authority for regulating the use of buildings and land. More particularly, LSA-R.S. 33:4721 provides in pertinent part the following:

For the purpose of promoting health, safety, morals, or the general welfare of the community, the governing authority of all municipalities may regulate or restrict . . . the location and use of buildings, structures, and land for trade, industry, residence, or other purpose.

It is clear that Section 4721 grants the authority to regulate the location of mobile homes within the city limits of Tallulah.

Your second question asks if zoning restrictions can be applied retroactively. As stated above, the city council is given the authority to enact zoning restrictions prospectively. The issue of zoning ordinances which restrict property retroactively was addressed by the Louisiana Supreme Court in Redfearn v. Creppel, 455 S.2d 1356, (La. 1984). In this opinion Justice Dennis defines the term “conforming use” as:

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Honorable Theodore Lindsey
OPINION NO. 04-0047
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A use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance although it does not comply with the use restrictions applicable to the area in which it is situated.

The opinion goes on to state that nonconforming uses of property are designed to avoid hardship, injustice, and the doubtful constitutionality of compelling the immediate removal of objectionable buildings and uses already in the area.

This is the situation with the zoning ordinance which prohibits trailers, mobile homes, modular homes and metal buildings from being allowed to remain in Tallulah. Rather than retroactively applying zoning ordinances, municipalities generally allow for nonconforming uses of property. Otherwise, the City of Tallulah may be effecting an unconstitutional “taking” of private property if residents are required to move mobile homes, trailers or modular homes. This may actually be a deprivation of property without due process and without just compensation which is prohibited by the United States Constitution, Amendment V, and by the Louisiana Constitution Article 1, Section 4. In Layne v. City of Mandeville, 633 So.2d 608 (La. App. 1st Cir. 1993), writ denied, 94-0268 (La. 3/25/94), 635 So.2d 234, the court stated that a governmental taking may occur in the form of zoning or rezoning. Such is the case in Tallulah. If people are required to move their homes many questions arise. Where will these people live? Who will pay for the moving? Where will the homes be moved? Are the property owners entitled to compensation for moving expenses and for substantial diminution of the remaining property?

Therefore, it is the opinion of this office that the retroactive application and enforcement of the zoning ordinance may be unconstitutional. According to the Layne (supra) court, whether or not this zoning restriction constitutes an unconstitutional taking is a factual determination.

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Honorable Theodore Lindsey
OPINION NO. 04-0047
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We trust your questions have been sufficiently answered. However, if you should need anything further from this office, do not hesitate to call.

Very truly yours,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

BY:_______ Frances J. Pitman
Assistant Attorney General

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Honorable Theodore Lindsey
OPINION NO. 04-0047
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OPINION NO. 04-0047

174 - Zoning

LSA-Const. Art. VI, §17
LSA-R.S. 33:4721 - 4729

Local governmental subdivisions have the authority to adopt zoning regulations for the location of mobile homes; however, the retroactive application of zoning restrictions may be unconstitutional.

Honorable Theodore Lindsey
Mayor, City of Tallulah
204 North Cedar Street
Tallulah, Louisiana 71282

DATE RECEIVED BR: 12.04.03
DATE RECEIVED SH: 01.22.04
DATE RELEASED: March 25, 2004

FRANCES J. PITMAN
ASSISTANT ATTORNEY GENERAL