Can a Washington city or county shut down an existing mobile home park by rezoning the area, even when the rezoning is meant to protect a nearby military base under the Growth Management Act?

Plain-English summary

Spokane County and the cities around Fairchild Air Force Base have eight mobile home parks adjacent to the base. The Growth Management Act, RCW 36.70A.530(3), tells local governments not to allow incompatible development near military installations. The local plan would rezone the parks' area from Manufactured Housing Residential to I-2 Heavy Industrial. If that happened, the parks would become a nonconforming use, and the question for the AG was whether the local governments could then phase the parks out, both by stopping new tenants from moving in and by ordering existing tenants to leave.

Senator Jeff Holy asked. AG Ferguson said no. The 2004 mobile-home-park protection statutes, RCW 35.63.161 (cities), RCW 35A.63.146 (code cities), and RCW 36.70.493 (counties), are categorical: a local government cannot order the removal or phased elimination of an existing manufactured housing community based on its nonconforming-use status. The 2011 amendment added an equally categorical rule that a local government cannot prohibit the entry of a new manufactured or mobile home into the community on that basis either. The protection statutes apply regardless of the underlying reason for nonconforming-use status. Even a Growth Management Act mandate to protect a military installation does not enable removal authority.

The opinion is careful about the structural relationship between the two statutory schemes. RCW 36.70A.530(3) governs what plans and development regulations local governments can adopt. The mobile-home-park protection statutes govern what enforcement actions local governments can take against existing communities once those communities exist. Different operative provisions, no direct conflict, but together they leave local governments with no zoning-based tool to wind down an existing manufactured housing community.

The opinion closes by inviting the legislature to consider clarifying language: whether the GMA's military-mission concern reaches existing housing as well as future development, and whether a health-and-safety or military-mission exception should be added to the mobile-home-park protections.

What this means for you

If you live in a manufactured housing community in Washington

Your community has substantial protection from being zoned out of existence. A city or county cannot order the park to close down or be phased out because a rezoning made it a nonconforming use, and cannot prohibit new tenants from moving in. That protection sits in three parallel statutes, RCW 35.63.161, RCW 35A.63.146, and RCW 36.70.493, depending on whether you are in a city, code city, or unincorporated county. The protection does not stop a private park owner from selling the land, redeveloping the site, or going out of business; the statutes constrain government action, not the private owner's choices. A different statute, RCW 59.20.080 and the Manufactured/Mobile Home Park Tenants chapter, governs the private side and notice obligations to tenants.

If you are a city or county planning director near a military base

Your zoning toolkit is constrained on the existing-community side. You can plan land use to direct future development away from incompatible mixes near the base under RCW 36.70A.530(3), but you cannot use a rezoning to phase out an existing manufactured housing community. Tools that may still be available (the opinion expressly does not address them, but flags them in a footnote): outright purchase of the land, federal Department of Defense buffer programs (REPI, ACUB), voluntary relocation incentives. Anything that adjusts the use of the land through the consent of the owner sidesteps the prohibition; an order based on nonconforming-use status does not.

If you are a state legislator on the local government or housing committee

The opinion explicitly invites clarifying legislation. Two questions are open. Does RCW 36.70A.530(3) reach existing housing, or only new development? And, if it does reach existing housing, what exceptions to the mobile-home-park protection statutes (health, safety, military mission) should be added to harmonize the two?

If you advise a private park owner or developer

The protections in RCW 35.63.161 etc. run to the owner of the manufactured housing community. They do not mandate that the owner keep operating. The statutes constrain the government's ability to terminate the use through nonconforming-use enforcement, and constrain the government's ability to prohibit new entries. Your client's discretion to close the park (subject to the Manufactured/Mobile Home Park Tenants chapter and lease obligations) is a separate question.

Common questions

Why are mobile home parks specially protected?

The 2004 legislature was concerned that local governments were using zoning as a tool to displace lower-cost housing. The Final Bill Report on SB 6476 (2004) frames the protection statutes as a response to that pattern. The 2011 amendments tightened the rule so that even attrition-based phase-out is barred, by adding the no-prohibition-on-new-entries clause.

What exactly is a "nonconforming use"?

A use that lawfully existed before a zoning ordinance changed and that is now out of step with the new zoning, but that the law allows to continue because it was already there. Washington courts treat nonconforming uses as "uniformly disfavored" because they make zoning less effective, and ordinary nonconforming uses can be subjected to phase-out or amortization regulations. The mobile-home-park statutes carve out a special category that is shielded from those ordinary tools.

Could the GMA's military-installation provision win this fight?

Probably not on the current statutory text. The opinion concludes the two statutes are not in direct conflict. The GMA tells local governments what their plans should look like; the protection statutes tell them what enforcement they cannot pursue. Both can be obeyed simultaneously. The squeeze comes from outside the statutes (the local government wants a zoning-based eviction tool that the protection statutes do not allow), not from a conflict between them.

Is there any way to remove an existing community based on health and safety concerns?

The opinion does not give one within the four corners of these statutes. The plain text covers "removal or phased elimination... because of its status as a nonconforming use," and "the basis for the nonconforming use determination" does not change the answer. If a community has serious health and safety problems, those issues might be addressed through other regulatory tools (state Health Department orders, building code enforcement, environmental cleanup, or eminent domain), not through nonconforming-use-driven zoning eviction.

Does the opinion bind the local governments around Fairchild?

No. AG opinions are persuasive, not binding. But the protection statutes are clear, and the local governments would litigate uphill against the plain text. The AG's reading is the conservative, text-anchored reading; a court would likely follow it.

Background and statutory framework

The Growth Management Act, RCW 36.70A, was enacted in 1990. RCW 36.70A.530, added in 2004 by ESSB 6401, recognizes that military installations are "of particular importance to the economic health of the state" and directs that comprehensive plans "should not allow development in the vicinity of a military installation that is incompatible with the installation's ability to carry out its mission requirements."

The mobile-home-park protection package was enacted in the same legislative session. RCW 35.63.161 (cities), RCW 35A.63.146 (code cities), and RCW 36.70.493 (counties) are parallel provisions. The 2011 amendments added the no-prohibition-on-entries clause.

The Washington case law on nonconforming uses (Rhod-A-Zalea & 35th, Inc., Seven Hills) treats nonconforming uses as legally disfavored and ordinarily subject to phase-out regulation. The mobile-home-park statutes carve a categorical exception out of that backdrop.

Citations

The harmonization principle the opinion uses, that the two schemes can both be obeyed and so do not technically conflict, is anchored in American Legion Post 149 v. Department of Health and Bank of America v. Owens. The nonconforming-use baseline (and the proposition that nonconforming-use protections are limited to the right not to have the use immediately terminated, with the use otherwise subject to reasonable police-power regulation) comes from Rhod-A-Zalea and Seven Hills.

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/phased-elimination-existing-manufactured-housing-community

Original opinion text

Attorney General

CITIES AND TOWNS — GROWTH MANAGEMENT ACT — MOBILE HOMES — ZONING — Phased Elimination Of Existing Manufactured Housing Community

RCW 35.63.161, RCW 35A.63.146, and RCW 36.70.493 prevent a local government from ordering the removal or phased elimination of an existing manufactured housing community as a nonconforming use.

January 11, 2023

The Honorable Jeff Holy
State Senator, District 6
PO Box 40406
Olympia, WA 98504-0406

Cite As:
AGO 2023 No. 3

Dear Senator Holy,

By letter previously acknowledged, you have requested our opinion on the following question:

Does RCW 35.63.161 prevent a local government from ordering the removal or phased elimination of an existing manufactured housing community for nonconforming use when the basis for the local government's nonconforming use determination is the protection of a military installation from incompatible development, as mandated by the Growth Management Act, RCW 36.70A.530(3)?

BRIEF ANSWER

Yes. RCW 35.63.161, along with RCW 35A.63.146 and RCW 36.70.493 (which are identical provisions that apply to cities, code cities and counties, respectively), prevent a local government from ordering the removal or phased elimination of an existing manufactured housing community for nonconforming use, regardless of the basis for the nonconforming use determination.

BACKGROUND

Fairchild Air Force Base (Fairchild) is a United States military installation located in Spokane County, Washington. It is the county's largest employer, with a total economic impact of over $523 million in fiscal year 2020.

In 1990, the Washington Legislature enacted the Growth Management Act (GMA), RCW 36.70A, which requires cities and counties to develop comprehensive plans to manage growth. These comprehensive plans must include certain elements addressing how a variety of land uses will be allowed. The legislature added a new section to the GMA in 2004, which provides that a comprehensive plan "should not allow development in the vicinity of a military installation that is incompatible with the installation's ability to carry out its mission requirements." RCW 36.70A.530(3).

When the legislature enacted this provision in 2004, it identified several policy findings in its support. First, the legislature found that the United States military is a "vital component of the Washington state economy" and therefore protection of military installations from incompatible land development "is essential to the health of Washington's economy and quality of life." Engrossed Substitute S.B. 6401, 58th Leg., Reg. Sess., § 1 (Wash. 2004). Second, incompatible development of land near a military installation "reduces the ability of the military to complete its mission or to undertake new missions, and increases its cost of operating." ESSB 6401, § 1. Third, the United States Department of Defense evaluates the continued utilization of military installations based on their operating costs and ability to carry out missions, and to undertake new missions. ESSB 6401, § 1. Based on these findings, the statute provides that "[m]ilitary installations are of particular importance to the economic health of the state of Washington and it is a priority of the state to protect the land surrounding our military installations from incompatible development." RCW 36.70A.530(1).

After the enactment of RCW 36.70A.530 in 2004, some local governments near Fairchild began attempting to reduce residential density near the base, but the presence of eight mobile home parks adjacent to Fairchild has complicated those efforts. The zoning in the area where the mobile home parks are located is currently Manufactured Housing Residential but the local government entities have proposed rezoning to I-2 Heavy Industrial Zone to reduce population density and increase the area's compatibility with Fairchild's mission.

However, another set of statutes, RCW 35.63.161 (which applies to cities), RCW 35A.63.146 (which applies to code cities), and RCW 36.70.493 (which applies to counties) prohibit local governments from requiring the removal, or prohibiting the entry, of a manufactured or mobile home based on the community's status as a nonconforming use. Specifically, these statutes, which also took effect in 2004, provide that a local government may not "order the removal or phased elimination of an existing manufactured housing community because of its status as a nonconforming use." RCW 35.63.161(1). The Final Bill Report for these provisions indicates that they were intended to address a concern that local jurisdictions were using zoning ordinances to eliminate existing manufactured housing communities, which were a source of lower-cost housing. Final Bill Rep. S.B. 6476, 58th Leg., Reg. Sess. (Wash. 2004). A provision added to each statute in 2011 also prohibits a city from "prohibit[ing] the entry or requir[ing] the removal of a manufactured/mobile home . . . on the basis of the community's status as a nonconforming use." See RCW 35.63.161(2). Thus, even when existing mobile home owners relocate, these statutes prohibit local governments from preventing new tenants or mobile home owners from moving in.

You have asked us to address whether RCW 35.63.161 and RCW 36.70A.530(3) are in conflict, and whether clarifying legislation is needed to eliminate uncertainty about whether local governments may implement the mandate of the GMA to prevent development incompatible with Fairchild's mission.

ANALYSIS

Washington courts assume the legislature does not intend to create inconsistent statutes; therefore statutes "are to be read together, whenever possible, to achieve a harmonious total statutory scheme which maintains the integrity of the respective statutes." Am. Legion Post 149 v. Dep't of Health, 164 Wn.2d 570, 588, 192 P.3d 306 (2008) (source alterations accepted) (internal quotation marks omitted). Courts will attempt to harmonize apparently contradictory statutes prior to resorting to canons of construction that give preference to one statute over another. Bank of America, N.A. v. Owens, 173 Wn.2d 40, 53, 266 P.3d 211 (2011).

RCW 36.70A.530 and the statutes relating to phased elimination of existing manufactured housing communities do not technically conflict and may be harmonized. RCW 36.70A.530 governs the development of growth management plans and development regulations. In other words, it specifies the kinds of land use laws and regulations that counties and cities may enact. RCW 35.63.161, RCW 35A.63.146, and RCW 36.70.493 govern orders for removal and phased elimination of manufactured housing communities, as well as the entry or removal of manufactured or mobile homes in such communities. In other words, the first statute sets out requirements for land use regulations that cities and counties must enact, and the second set of statutes set out requirements regarding entry and removal of manufactured or mobile homes and vehicles in existing manufactured housing communities. Because the objects of the regulations are different, and both can be fully complied with, there is no actual conflict.

However, compliance with both sets of statutes can lead to counter-intuitive results. In this case, local governments wish to rezone an area adjacent to Fairchild where mobile home parks are located from Manufactured Housing Residential to I-2 Heavy Industrial Zone to reduce population density and increase the area's compatibility with Fairchild's mission. They would like to ensure that the parks eventually stop operating by prohibiting the proprietors of the parks from accepting new tenants, ordering existing tenants to leave, or both. If such rezoning occurred, the existing manufactured housing communities would become a nonconforming use, which is "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 [current] zoning restrictions applicable to the district in which it is situated." Rhod-A-Zalea & 35th, Inc. v. Snohomish County, 136 Wn.2d 1, 6, 959 P.2d 1024 (1988).

Without the prohibition on removal or phased elimination in RCW 35.63.161, RCW 35A.63.146, and RCW 36.70.493, Washington case law would likely permit a gradual relocation of residents under these circumstances. Nonconforming uses are "uniformly disfavored" because they limit the effectiveness of land-use controls, imperil the success of community plans, and injure property values. Rhod-A-Zalea & 35th, Inc., 136 Wn.2d at 8. The right to continue a nonconforming use despite a zoning ordinance that prohibits such a use, although sometimes referred to as a protected or vested right, only refers to the right not to have the use immediately terminated pursuant to the ordinance that prohibits the use. Id. at 5-6 (citing 1 Robert M. Anderson, American Law of Zoning § 6.01 (Kenneth H. Young ed., 4th ed. 1996); Richard L. Settle, Washington Land Use and Environmental Law and Practice § 2.7(d) (1983)); Seven Hills, LLC v. Chelan County, 198 Wn.2d 371, 398, 495 P.3d 778 (2021). Courts have consistently recognized that nonconforming uses are subject to subsequently enacted reasonable police power regulations; it is generally only when a regulation would immediately terminate the nonconforming use that courts have found the regulation invalid. Rhod-A-Zalea & 35th, Inc., 136 Wn.2d at 9-10 (citing cases).

However, the prohibition in RCW 35.63.161(1), RCW 35A.63.146(1), and RCW 36.70.493(1) is clear, and a court would likely find it applies here to prevent the local governments from ordering a phased elimination of the existing mobile home parks if the community became nonconforming due to a rezoning of the area, even if the relocation of residents took place gradually due to attrition. Nor could a local government prohibit the entry of a new tenant into a manufactured or mobile home park on the basis of the community's nonconforming use status. These provisions would apply regardless of the basis for the nonconforming use status, and would seem to permanently prevent the removal or phased elimination of the mobile home parks through zoning ordinances.

Because the focus of RCW 36.70A.530(3) is on development in the vicinity of a military installation, whereas RCW 35.63.161(1) and its sister provisions apply to existing manufactured housing communities, the statutes are not technically in direct conflict. However, that does not mean the dilemma faced by the local governments in Spokane County is easily resolved, or that clarifying legislation would not be helpful. Even apart from any impact on Fairchild's ability to carry out its mission, the local governments have safety concerns that they say they cannot effectively address given the restrictions in RCW 35.63.161, RCW 35A.63.146, and RCW 36.70.493 that prevent the removal or phased elimination of the mobile home parks through zoning ordinances. Additional legislation to clarify whether and when any exception for health, safety, and welfare, or to permit a military installation to carry out its mission, would apply may be helpful.

Similarly, given RCW 36.70A.530(3)'s focus on development, legislative clarification regarding whether its provisions also apply to existing housing or other structures that may interfere with the ability of a military installation to carry out its mission could help local governments properly balance competing priorities. Of course, if the legislature were to clarify that the statute does apply to existing housing, it may well create a conflict with RCW 35.63.161, RCW 35A.63.146, and RCW 36.70.493, making it all the more important that those provisions also be clarified to identify any applicable exceptions.

For these reasons, we conclude that RCW 35.63.161, RCW 35A.63.146, and RCW 36.70.493 prevent a local government from ordering the removal or phased elimination of an existing manufactured housing community for nonconforming use, regardless of the basis for the nonconforming use determination.

ROBERT W. FERGUSON
Attorney General

CYNTHIA ALEXANDER
Deputy Solicitor General