No: 01-4048 DENISE LAUDERBAUGH, a single woman v. HOPEWELL TOWNSHIP, Beaver County, Pennsylvania, a first class Township organized

PRECEDENTIAL
Filed February 11, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 01-4048
DENISE LAUDERBAUGH,
a single woman;
LARRY’S HOMES OF PENNSYLVANIA, INC.,
a Pennsylvania Corporation
v.
HOPEWELL TOWNSHIP, Beaver County, Pennsylvania, a
first class Township organized and existing under the
laws of Pennsylvania; JOHN M. BATES, individually, and
in his capacity as Hopewell Township Zoning Officer;
PATRICIA L. YANNESSA-BATES, individually, and in her
capacity as Manager of Hopewell Township; PATSY
D’ERAMO, individually, and in his capacity as a member
of the Hopewell Township Board of Commissioners;
STEVE RODICH, individually, and in his capacity as a
member of the Hopewell Township Board of
Commissioners; TED PAJAK, individually, and in his
capacity as a member of the Hopewell Township Board of
Commissioners; MARIO LEONE, JR., individually, and in
his capacity as a member of the Hopewell Township
Board of Commissioners; TIM FORCE, individually, and in
his capacity as a member of the Hopewell Township
Board of Commissioners
Hopewell Township, John M. Bates, Patricia L.
Yannessa-Bates, Patsy D’Eramo, Steve Rodich,
Ted Pajak, Mario Leone, Jr., and Tim Force,
Appellants
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 99-cv-01359)
District Judge: Honorable Gustave Diamond
Argued May 1, 2002
Before: ROTH, NYGAARD and WEIS, Circuit Judges
(Opinion filed: February 11, 2003)
Pamela Beck Danner, Esquire
(Argued)
Paula Brodeur Haefner, Esquire
Danner & Associates
1364 Beeverly Road, Suite 101
McLean, VA 22101-3628

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Counsel for Appellees
Eric P. Reif, Esquire (Argued)
Jeanette H. Ho, Esquire
Pietragallo, Bosick & Gordon
One Oxford Centre, 38th Floor
301 Grant Street
Pittsburgh, PA 15219
Counsel for Appellants
OPINION OF THE COURT
ROTH, Circuit Judge:
Denise Lauderbaugh wants to install her manufactured
mobile home, which complies with standards established by
the Department of Housing and Urban Development (HUD),
in the "R-2" residential district in the town of Hopewell. The
HUD standards were created by the National Manufactured
Housing Construction and Safety Standards Act
(NMHCSSA), 42 U.S.C. SS 5401-5426, an act that prohibits
municipalities from imposing construction and safety
2
standards on manufactured homes that differ from the
federal standards.1 Hopewell has prohibited Lauderbaugh
from installing her HUD home on her lot because the
Hopewell zoning ordinance does not allow mobile homes in
the R-2 district. Hopewell interprets its ordinance to
exclude a mobile home from the R-2 district whether or not
it complies with the NMHCSSA. Hopewell also interprets its
ordinance to permit in the R-2 district manufactured
modular homes, which comply with the BOCA/CABO
Codes. We must determine if Hopewell’s treatment of HUD
compliant mobile homes is preempted by NMHCSSA. For
the reasons stated below, we conclude that it is not clear
whether Hopewell has excluded HUD homes from the R-2
district on the basis of safety and construction standards or
if the exclusion is based on aesthetics and impact on
property values. We will, for that reason, reverse the
District Court’s grant of summary judgment and remand
this case for further proceedings.
I. Facts
In May of 1998, Denise Lauderbaugh prepared to
purchase a home. She examined manufactured mobile
homes sold by Larry’s Homes of Pennsylvania, Inc., and
selected a multi-section manufactured home which would
be placed on a permanent foundation with wheels and axles
removed. The home Lauderbaugh selected was a HUD
home, complying with the NMHCSSA. Lauderbaugh also
looked at property in Hopewell Township and discussed
acquiring building permits with Hopewell’s zoning officer,
John Bates. Bates informed Lauderbaugh that the property
she was considering was zoned "R-2" and that mobile

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homes were not permitted in the R-2 district. In a
December 1998 letter, Bates explained that to qualify for
the R-2 district, a home must be a "BOCA/CABO" home;
_________________________________________________________________
1. NMHSSCA was enacted by Congress as a consumer protection
measure. See, e.g., Scurlock v. City of Lynn Haven, 858 F.2d 1521, 1524
(11th Cir. 1988). The original language of the act provided that its
purposes were "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. S 5401 (1981).
3
that is, it must meet the following building codes: the 1993
BOCA building Code, the 1992 CABO One and Two Family
Dwelling Code, the 1993 BOCA National Plumbing Code,
and the 1993 BOCA National Fire Prevention Code. He also
explained that "HUD Homes" were considered"mobile
homes" and could not be located in the R-2 district, but
only in the R-1 district. Bates claims that Lauderbaugh
then told him that she planned to install, not a mobile
home, but a BOCA/CABO compliant manufactured
modular home.2 Hopewell interprets its zoning ordinance to
permit BOCA/CABO compliant modular homes in the R-2
district.
The Hopewell zoning ordinance allows "mobile homes" in
the R-1 district, but not in any other residential district.
The ordinance defines mobile homes in S 310(60) as:
A transportable, single-family dwelling intended for
permanent occupancy, office or place of assembly
contained in one unit or in two units designed to be
jointed into one integral unit capable of again being
separated for repeated towing which arrives at a site
complete except for minor and incidental unpacking
and assembly operations, and constructed so that it
may be used without a permanent foundation.
After her contact with Bates, Lauderbaugh arranged to
purchase the HUD home. She contracted to buy a parcel of
land in an R-2 district in Hopewell and to have the site
prepared with a permanent foundation and a basement.
She also applied for a building permit. The permit was
issued, identifying the structure to be built as a
"mason/frame" building proposed to be used as a single-
family home. Hopewell claims that Lauderbaugh obtained
her permit by misrepresentation because she had stated
that she planned to place a modular home, not a mobile
home, on the property. Bates contends that Lauderbaugh
told him she needed the permit immediately to go to closing
_________________________________________________________________
2. A "modular" home is built off-site in modular components that are
transported to a residential site and erected on a permanent foundation.
Unlike a "mobile" home, a "modular" home is not built on a permanent
chassis. See Texas Manufactured Housing Assn, Inc. v. City of Nederland,

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101 F.3d 1095, 1098-99 (5th Cir. 1996).
4
on the land and that she would deliver the plans for the
modular home when she picked up the permit. Bates was
not present when Lauderbaugh came in for the permit, and
she did not deliver plans for a modular home.
Lauderbaugh, on the other hand, contends that she was
told by Larry’s Homes that the Chief of the Pennsylvania
Manufactured Housing Division had said that "the
[Hopewell] ordinance did not preclude the siting of a HUD-
Code home in either Zoning District R-2 or anywhere else
in Hopewell Township."
On June 2 and 15, 1999, the two halves of
Lauderbaugh’s home were delivered to the lot. When Bates
saw that she was attempting to locate a HUD home in the
R-2 district, he verbally revoked her building permit and
forbade the placing of the home on the foundations. He
formally revoked her permit in a letter, dated July 2, stating
that the permit was revoked because the home was built to
the HUD Code rather than in compliance with
BOCA/CABO. Soon thereafter, Lauderbaugh hired legal
counsel and began to dispute the revocation of the building
permit.
Lauderbaugh first filed an appeal from the formal
revocation of her building permit with the Hopewell
Township Zoning Hearing Board on July 19. The Zoning
Hearing Board began a hearing on August 12 but continued
it indefinitely for reasons that are not clear. The day after
the hearing began and, despite the fact that the appeal was
still pending before the Zoning Hearing Board, Bates sent a
letter to Lauderbaugh demanding that she immediately
remove her home because it posed a danger to the safety of
neighborhood children and it was partially located on the
public right of way.3 Several days later, Lauderbaugh filed
an appeal from that letter with the Zoning Hearing Board.
On August 17, despite the pending appeals, Bates sent
Lauderbaugh’s attorney another letter demanding that
Lauderbaugh remove her home. This letter recognized that
Lauderbaugh was appealing to the Zoning Hearing Board
but nevertheless threatened to institute state court
_________________________________________________________________
3. Lauderbaugh denies that either section of the home intruded into the
public right of way.
5
litigation to remove the home and to assess any costs
against Lauderbaugh. On August 18, the Chief of the
Pennsylvania Manufactured Housing Division sent a letter
to the President of the Hopewell Board of Commissioners,
informing him that Hopewell could not preclude
Lauderbaugh from siting a HUD home in the R-2 district.
Hopewell’s solicitor responded that Hopewell’s position

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remained unchanged.
To explain the basis for the exclusion of mobile homes
from R-2 districts, during the preliminary proceedings in
this case, Hopewell presented affidavits from Ray Antonelli
and Michael Kohlman. Ray Antonelli acted as a consultant
in drafting Hopewell’s zoning ordinance. Antonelli stated in
his affidavit that the restriction of mobile homes to the R-1
zoning district was based on three factors: (1)"mobile
homes" have a lower purchase price than other types of
housing and depreciate over time, eroding the Township tax
base; (2) the R-1 zoning district has different lot and area
requirements, reducing the density of number of"mobile
homes" in the Township; and (3) "mobile homes" are "not
always aesthetically comparable" to other types of housing
including modular housing. Michael Kohlman was chief
county assessor. Kohlman stated in his affidavit that
mobile homes depreciate in value each year and, unlike
other types of single family dwellings, have a unique ability
to reduce the tax base in a municipality.
II. Procedural History
On August 20, 1999, Lauderbaugh and Larry’s Homes of
Pennsylvania, Inc., filed a complaint in the United States
District Court for the Western District of Pennsylvania. The
complaint alleged that Hopewell Township had violated
Lauderbaugh’s Fifth Amendment rights, her rights to due
process and equal protection of the law, the NMHCSSA,
and Pennsylvania state law. The plaintiffs also moved
before the Zoning Hearing Board to continue indefinitely
Lauderbaugh’s appeals pending the resolution of this
lawsuit.
Hopewell moved to dismiss the complaint because the
action was not ripe for adjudication. The District Court
6
denied that motion. After further proceedings, the District
Court denied plaintiffs’ motions for summary judgment on
their procedural and substantive due process, equal
protection, Fifth Amendment Takings Clause, and state law
claims. The court did not grant summary judgment on the
substantive due process and equal protection claims
because it found that material issues of fact existed as to
whether aesthetic qualities of mobile homes and their effect
on property values had led to the revocation of
Lauderbaugh’s building permit. The District Court then did
grant summary judgment in favor of Lauderbaugh and
Larry’s Homes of Pennsylvania, Inc., with respect to their
claims under the NMHCSSA, finding that Lauderbaugh’s
"manufactured" home was excluded from the R-2 district
based solely on the fact that it was built to NMHCSSA
standards and not to BOCA/CABO standards. As a result,
the District Court ordered Hopewell to allow Lauderbaugh
to install her mobile home on her property. Hopewell
appealed.

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III. Jurisdiction and Standard of Review
Our jurisdiction over this case is in dispute. The District
Court exercised subject matter jurisdiction pursuant to 28
U.S.C. SS 1331 and 1367 because the claims arose under
the Constitution and laws of the United States and were
part of the same case or controversy. However, as
discussed below, the parties dispute whether these claims
were ripe for adjudication by the District Court. We have
jurisdiction to review a final order of the District Court
under 18 U.S.C. S 1292.
We exercise plenary review over both the District Court’s
ripeness determination, see Presbytery of New Jersey v.
Florio, 40 F.3d 1454, 1462 (3d Cir. 1994), and its summary
judgment ruling, see Health Maintenance Org. of New
Jersey v. Whitman, 72 F.3d 1123, 1127 (3d Cir. 1995).
IV. Discussion
A. Ripeness
Hopewell first challenges the District Court’s ruling on
the grounds that this case was not ripe for adjudication.
7
The District Court found that the case was ripe because
Hopewell has treated its zoning decision as finally resolved.
We agree with the District Court that Hopewell cannot
prevent Lauderbaugh from installing her home, threaten
state court litigation to force its removal, and, at the same
time, claim there is no controversy ripe for adjudication.
Lauderbaugh’s first contention is that we should ignore
Hopewell’s ripeness argument. She points out that
Hopewell’s Notice of Appeal does not refer to the orders of
the District Court that addressed the ripeness issue. As a
result, she argues, Federal Rule of Appellate Procedure 3(c)
denies us jurisdiction to consider ripeness. Her argument is
clearly misplaced. In Acierno v. Mitchell, 6 F.3d 970 (3d Cir.
1993), we rejected an identical argument. See id . at 974
("Although we generally decline to address arguments for
the first time on appeal, ‘ripeness affects [the] justiciability’
of plaintiffs claims, and we will address it here."). See also
Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 535
(3d Cir. 1988) ("This Court has recognized that
considerations of ripeness are sufficiently important that we
are required to raise the issue sua sponte even though the
parties do not.").
We turn, therefore, to Hopewell’s argument. It is well
established that, in S 1983 cases involving land-use
decisions, a property owner does not have a ripe claim until
the zoning authorities have had "an opportunity to ‘arrive[ ]
at a final, definitive position regarding how [they] will apply
the regulations at issue to the particular land in question.’ "
Taylor Investment, LTD. v. Upper Darby Township , 983 F.2d
at 1291 (quoting Williamson County Reg’l Planning Comm’n

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v. Hamilton Bank of Johnson City, 473 U.S. 172, 191
(1985)). We have consistently applied this finality rule to
bar constitutional claims by property owners or tenants
who have challenged the denial of a permit by an initial
decision-maker but failed to take advantage of available,
subsequent procedures. See, e.g., Sameric Corp. v.
Philadelphia, 142 F.3d 582, 597-598 (3d Cir. 1998) (finding
a substantive due process claim premature when the
plaintiff failed to complete the denial of a building permit);
Acierno v. Mitchell, 6 F.3d at 974-75 (finding unripe a
constitutional challenge to the denial of a building permit
8
because the plaintiff did not appeal the denial or seek a
variance); Taylor, 983 F.2d at 1289 (dismissing as unripe a
constitutional challenge to the revocation of a use permit
where the tenant did not reapply, appeal or seek a
variance); Midnight Sessions, 945 F.2d at 686 (holding that
a plaintiff ’s claim was not ripe where it did not appeal the
denial of a certificate of occupancy to the review board).
Hopewell urges us to dismiss Lauderbaugh’s claim as
premature. It argues that this case is like Sameric, Acierno,
and Taylor because the Zoning Hearing Board’s decision to
deny Lauderbaugh’s building permit is reviewable de novo
by the Zoning Hearing Board, which has yet to make a final
decision. See Sameric, 142 F.3d at 598, Acierno, 6 F.3d at
976; Taylor, 983 F.2d at 1292-93.
Hopewell’s argument ignores, however, that Lauderbaugh
attempted to avail herself of the appeals process. She
appealed the formal revocation of her building permit to the
Hopewell Township Zoning Hearing Board on July 19,
1999. She also appealed the August 13th letter from
Hopewell that demanded that she immediately remove her
home because it was a safety hazard. She filed this lawsuit
only after the Zoning Hearing Board had indefinitely
continued her appeals and Hopewell had informed her that,
despite those pending appeals, it would institute state court
litigation to remove her home and assess any costs against
her.
Thus, this is not a case, like Sameric, Acierno, and
Taylor, where a plaintiff ’s failure to take advantage of
available, subsequent procedures foreclosed any chance
that those procedures could resolve the controversy and
obviate the need to address the constitutional issues.
Instead, Hopewell’s decision to ignore the appeals and
enforce its zoning decision by forcing Lauderbaugh to pay
to move her home has created a justiciable controversy.
Hopewell cannot treat its zoning decision as final enough
to force a significant hardship upon Lauderbaugh by
forcing her to pay to move her home but not final enough
to be ripe for adjudication. The ripeness doctrine prevents
judicial interference "until an administrative decision has
been formalized and its effects felt in a concrete way by the

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9
challenging parties." Abbott Labs., Inc. v. Gardner, 387 U.S.
136, 149 (1967). The finality rule is designed to enforce this
requirement, not to require the exhaustion of
administrative remedies. See Williamson Planning Comm’n
v. Hamilton Bank, 473 U.S. 172, 192 (1985) ("the question
whether administrative remedies must be exhausted is
conceptually distinct . . . from the question whether an
administrative action must be final before it is judicially
reviewable."). Thus, the finality rule allows a suit whenever
a "decision maker has arrived at a definitive position on the
issue that inflicts an actual, concrete injury." Id. Hopewell’s
threat to institute state court litigation to remove
Lauderbaugh’s home and tax any costs against her is
clearly a definitive position that threatens a concrete injury.
This case is therefore ripe for adjudication.
Hopewell agues that this analysis is incorrect, claiming
that it is not treating its zoning decision as finally decided.
Despite its threats of litigation, Hopewell contends that it
ordered Lauderbaugh to remove her home for safety
reasons, not because it considered its zoning decisions
final. But, it was Hopewell’s own stop work order that
created the danger by preventing Lauderbaugh from
installing her home, and that stop work order was
predicated on Hopewell’s finding that Lauderbaugh’s home
could not be installed in the R-2 district. Thus, although
Hopewell has not denied the Zoning Hearing Board’s
authority to oversee all zoning decisions, it is treating its
own zoning decision as final enough to inflict a concrete
injury on Lauderbaugh. As a result, we will affirm the
District Court’s ruling that this case is ripe for
adjudication.
B. Preemption
The substantive issue in this case is whether the District
Court properly held that the NMHCSSA preempted
Hopewell’s zoning ordinance. The District Court granted
summary judgment in favor of plaintiffs because it found,
as a matter of law, that Hopewell used safety and
construction codes that conflict with the NMHCSSA to
exclude from the R-2 district some manufactured homes,
i.e., HUD homes which comply with the NMHCSSA, but not
10
other manufactured homes which comply with
BOCA/CABO. We must determine whether Hopewell is
excluding HUD homes from its R-2 district solely because
HUD homes fail to meet the BOCA/CABO safety and
construction standards, as opposed to the NMHCSSA safety
and construction standards, or because HUD homes fail to
meet some other, permissible, zoning criteria.
The NMHCSSA was enacted to protect consumers by
reducing accidents, lowering insurance costs, and

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improving the quality and durability of manufactured
homes. See Scurlock v. City of Lynn Haven, Florida, 858
F.2d 1521, 1524 (11th Cir. 1988). The NMHCSSA states its
purpose as the protection of quality, durability, safety, and
affordability of manufactured homes by providing for
performance based construction standards and cost-
effective construction techniques. See 42 U.S.C. S 5401(b).
In other words, the act’s aim is to set standards for how
manufactured homes will be built; it does not attempt to
determine where they will be located.
In order to achieve the consumer protection goal of
providing for minimum construction and safety standards
in the construction of manufactured homes, the NMHCSSA
explicitly preempts state and local safety and consumer
protection regulations regarding manufactured homes. The
act provides:
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. S 5403(d). See also, 24 C.F.R. S 3282.11(a)
(Manufactured Homes Procedural and Enforcement
Regulations that effectuate S 5043(d)). Thus, the NMHCSSA
prohibits localities from imposing any safety and
construction standard upon manufactured homes that
differs from the federal standard.
11
The preemptive effect of NMHCSSA extends to safety and
construction standards used to define zoning regulations.
Thus, although localities may legitimately regulate land use
to advance a myriad of different interests, including
property values, aesthetics, health, and the general welfare,
see Penn. Cent. Transp. Co. v. City of New York , 438 U.S.
104, 128 (1978) and cases cited therein, they may not use
safety and construction standards that conflict with the
NMHCSSA as a regulatory tool. See Scurlock v. City of Lynn
Haven, 858 F.2d 1521, 1525 (11th Cir. 1988).
The distinction between safety and construction
standards and zoning regulations intended to promote
aesthetic and property value standards may not be
immediately evident from the language of a zoning
ordinance. For example, in Georgia Manufactured Housing
Assn, Inc. v. Spalding County, 148 F.3d 1304 (11th Cir.
1998), a zoning regulation required that a manufactured
home be built with a 4:12 roof pitch in order to be placed
in most residential districts. The District Court held that
the regulation was preempted by NMHCSSA because it was

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a construction or safety requirement. The Eleventh Circuit
Court of Appeals reversed, holding that the regulation was
not preempted. The court distinguished the Spalding
County regulation from the Lynn Haven regulation that that
court had previously found to be preempted in Scurlock
because the Spalding County regulation could have been
based on aesthetics, rather than being a construction or
safety standard protecting consumers from "various
potential hazards associated with manufactured housing."
Id. at 1310. The court determined that because the
regulation established an aesthetic standard and did"not
have any purported basis in consumer protection," it was
not preempted by NMHCSSA. See also Texas Manufactured
Housing Assn v. City of Nederland, 101 F.3d 1095, 1100
(5th Cir. 1996) (holding that ordinance that excluded
"trailer coaches" from the city except in"authorized trailer
parks" was for the purpose of protecting property values
and did "not expressly link its provisions in any way to
local safety and construction standards.").
The language of the Hopewell Zoning Ordinance 95-2
does not refer to NMHCSSA or to any other construction or
12
safety standards for manufactured homes. Section 600 of
the ordinance sets out the permitted uses for the R-1
Residential-Agricultural District, which include"single
family dwelling unit," "mobile homes on individual lots"
(with certain provisos not relevant to the case before us),
"municipal recreation facilities," "educational and religious
uses," "municipal facilities," and "agriculture, horticulture
and/or silviculture." Section 700 describes the permitted
uses for the R-2 Residential-Low District as "single-family
dwelling units," "municipal recreation facilities,"
"educational and religious uses," and "municipal facilities."
Hopewell Township interprets "single-family dwelling units"
as permitted in the R-2 district to be those that comply
with BOCA/CABO. This definition, as it applies to
manufactured homes, includes modular homes but not
mobile homes. We must determine whether the basis for
that distinction is a safety and construction standard or a
desire to promote aesthetics and to protect property values
in the R-2 district.
The District Court considered this distinction in ruling on
plaintiffs’ motions for summary judgment. In connection
with plaintiffs’ substantive due process and equal
protection claims, the District Court found genuine issues
of material fact. In reviewing the substantive due process
claim, the court determined that, despite Lauderbaugh’s
contention that the revocation of her building permit was
an irrational application of the zoning ordinance, a jury
must determine whether HUD homes are aesthetically
similar to modular homes and whether HUD homes have
an adverse effect on the tax base or on property values. The
court noted that, based on the evidence before it, including
the Antonelli and Kohlman affidavits, "a reasonable fact
finder could reach either conclusion." The court found the

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same material question regarding aesthetic and property
value issues existed with regard to the equal protection
claim.
The court then found as a matter of law that, because
Lauderbaugh’s "manufactured" home was excluded from
the R-2 district based solely on the fact that it was built to
NMHSSCA standards and not to BOCA/CABO standards,
the ordinance contravened the express preemption
13
provision of the NMHSSCA. In making its preemption
analysis, the District Court found that there was no
genuine issue of material fact as to the reason that
Hopewell refused to allow Lauderbaugh’s home in the R-2
district. The court reasoned that even if the ordinance was
enacted to protect aesthetics and property values, no
mention of these concerns was made in the decision to
exclude Lauderbaugh’s manufactured home from the R-2
district.
This ruling by the District Court implies that, despite the
fact that aesthetics and property value considerations
might lie behind the enactment and overall interpretation of
the Hopewell zoning ordinance, these factors cannot be
considered relevant to the revocation of Lauderbaugh’s
building permit unless specifically mentioned as such. We
do not accept this distinction. If in fact the zoning
ordinance was established and has been interpreted to
protect aesthetics and property values, we see no need for
its enforcers to proclaim that a decision is based on
aesthetics and property values each time the ordinance is
invoked. It is the underlying purposes of a zoning ordinance
that are determinative of its susceptibility to preemption by
the NMHCSSA. See Georgia Manufactured Housing Assn,
148 F.3d at 1310 (holding that "a zoning requirement [as to
roof pitch] related to aesthetics is not preempted [by
NMHCSSA] because the goals and effects of such a
standard have nothing to do with consumer protection
. . . ." (emphasis added)).
On remand, the District Court must determine whether
Hopewell’s ordinance, insofar as it pertains to mobile
homes, was enacted solely to establish safety and
construction standards or whether there was an underlying
purpose to protect aesthetics and property values in certain
residential districts. The NMHCSSA preempts only safety
and construction standards. It is focused on consumer
protection, see 42 U.S.C. S 5401, and does not strip a
township of its authority to make land use decisions
regarding, for example, aesthetics or property values. Thus,
although the NMHCSSA prevents localities from using
safety standards to exclude manufactured homes from a
zoning district, it does not stop them from excluding certain
14

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types of manufactured housing from a zoning district using
some other, permissible, criteria -- even if, by using that
permissible criteria, the locality bans most, or even every,
manufactured home.
Moreover, if a township has decided that certain types of
manufactured homes -- which it has defined as"mobile
homes" -- are aesthetically unpleasing, or harmful to local
property values, but that other types of manufactured
homes -- which it has interpreted to be "modular homes" --
are not, the township may bar "mobile homes" from a
zoning district and allow "modular homes." It may do so
even if a "mobile home" is built in compliance with
NMHCSSA standards. See Scurlock v. City of Lynn Haven,
858 F.2d at 1525 (stating that a municipality could
"undoubtedly" prohibit mobile homes from a residential
district).
Because we are reviewing the grant of a summary
judgment motion, we must view all the facts in the light
most favorable to the non-moving party, in this case,
Hopewell Township. See Goodman v. Mead Johnson & Co.,
534 F.2d 566, 573 (3d Cir. 1976). In that light, we accept
the statements of Ray Antonelli and Michael Kohlman that
the restriction of mobile homes to the R-1 district was for
aesthetic and property value considerations. On remand,
the finder of fact will have to determine whether the
exclusion of NMHCSSA compliant mobile homes, but not of
BOCA/CABO compliant modular homes, from the R-2
district was based solely on safety and construction
standards or was based, at least in part, on property value
and aesthetic considerations.
V. Conclusion
For the above stated reasons, we will reverse the
judgment of the District Court and remand this case for
further proceedings consistent with this opinion.
15
NYGAARD, Circuit Judge, dissenting:
I believe that the District Court’s thorough analysis, and
conclusion with respect to the preemption issue, are
entirely correct. Indeed, I can add to Judge Diamond’s
opinion only the following references and observations. The
Township’s zoning ordinance expressly permits the
placement of mobile homes only in its R-1 (residential-
agricultural) district, and placing them in other districts is
excluded by implication.1 The purported basis for this
restriction is to preserve the aesthetics, property value and
tax base of the Township, a legitimate governmental
interest. The District Court observed in its opinion that "the
Township could have thought that an ordinance prohibiting
traditional mobile homes from certain zoning districts was
a rational way to achieve" these interests (citing Affidavits
of Ray Antonelli, zoning ordinance consultant, and Michael
Kohlman, chief county assessor).2

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The preemption problem arises from the manner in which
the Township’s ordinance has been applied in this case,
rather than its underlying purpose. I can agree that on its
face, the ordinance does not distinguish between
manufactured and modular homes, but only between
_________________________________________________________________
1. The ordinance defines a "mobile home" as a "transportable, single-
family dwelling . . . contained in one unit or in two units designated to
be jointed into one integral unit . . . which arrives at a site complete and
ready for occupancy except for minor and incidental unpacking and
assembly operations, and constructed so that it may be used without a
permanent foundation."
The record is undeveloped as to whether transportability is a workable
distinction between mobile and modular homes. Of course, the burden
was on Defendants to come forward with evidence to create a triable
issue as to that distinction, or some other non-Code based distinction,
being the actual basis for permit denial. Nowhere in Defendants’ brief do
they mention the transportability distinction; rather they consistently
distinguish permitted and excluded housing on the basis of code
compliance.
2. The District Court concluded that conflicting evidence regarding the
aesthetic similarity of Plaintiff ’s home to others in the neighborhood,
and the effect of HUD Code homes on property values and the tax base,
raised genuine issues of material fact as to Plaintiff ’s substantive due
process claim, to be resolved at trial.
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"mobile homes" as defined in the statute and other types of
single-family dwelling units. There is, however, no doubt
from this record that the ordinance has been (albeit
inconsistently) interpreted by the Township to preclude the
permanent siting of factory-built mobile or "manufactured"
homes built to the HUD Code, but to allow the placement
of factory-built "modular" homes built to the BOCA/CABO
Codes, in the R-2 district. The evidence establishes that
Bates was enforcing the ordinance against Appellee based
on the fact that her home is a HUD Code, rather than a
BOCA/CABO Code home. Indeed, even on appeal,
Appellants continue to distinguish between excluded
mobile, or "manufactured", homes and permitted factory-
built, or "modular" homes on the basis of Code compliance.
See Brief on Behalf of Appellants at 27-28 (discussing how
mobile homes are built in conformity with HUD standards,
unlike modular homes that are constructed in accordance
with CABO standards). This distinction by Code is
improper.
The NMHCSSA preemption statute provides, in pertinent
part:
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

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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. S 5403(d). In addition, HUD’s guidelines on
preemption specifically provide that "a locality is free to
adopt and enforce ordinances that regulate the appearance
and dimensions of homes so long as the criteria . . . do not
have the effect of excluding manufactured homes based on
the construction and safety standards to which they were
built." 62 Fed. Reg. 3456, 3457 (1997). Moreover,"if a
locality . . . is attempting to regulate, and even exclude,
certain manufactured homes through zoning enforcement
that is based solely on a construction and safety code
17
different from that prescribed by the Act, the locality lacks
such authority." Id. (emphasis added). Thus, the statute
forbids the Township from applying zoning ordinances on
the basis of any construction or safety code requirement
that differs from the HUD Code. By permitting the siting of
factory-built houses that comply with the BOCA/CABO
Code and excluding those that instead comply with the
HUD Code, Appellants are clearly violating this express
prohibition.
Appellants claim that the District Court’s finding that
exclusion was predicated on non-compliance with the
BOCA/CABO Codes is inconsistent with its finding that a
jury could conclude that exclusion of mobile homes from
the R-2 zones was motivated by aesthetic and tax
considerations. As the District Court was careful to point
out, however, preemption under the NMHCSSA turns not
on motive but on the effective imposition of a construction
or safety code differing from the federally-approved HUD
Code. Here, the mechanism for distinguishing between
permitted and forbidden uses turns on Code compliance.
The resulting practice is statutorily-preempted, regardless
of the motive for the underlying distinction. In other words,
although the Township is free to exclude certain types of
housing based on aesthetic and tax considerations, when it
in practice defines what housing is deemed aesthetically
dissimilar and economically undesirable by the construction
and safety codes to which such housing has been
manufactured, it runs afoul of the NMHCSSA.
Notwithstanding the parties’ evident disagreement as to
the purpose behind the appellants’ attempted exclusion of
HUD mobile homes, it appears there is no material issue of
fact on how the exclusion was applied. Indeed, Appellant
conceded at oral argument that it has used the HUD code
compliance as a "short-hand" or proxy for its aesthetic and
tax concerns. I believe this concession proves the
correctness of Judge Diamond’s analysis. The Act forbids
local governments from using non-compliance with a

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competing code as a criterion, no matter what their motive
in doing so may be.
As the District Court stated, "under both case law and
HUD policy, a locality cannot exclude or restrict
18
manufactured homes that meet the federal standards if the
locality accepts manufactured homes meeting other
differing standards." It was correct in concluding that
because, as a matter of law, "the Township’s zoning
ordinance [was] being enforced to restrict homes from being
sited in certain zoning districts based solely on the building
code to which they were constructed," such application was
preempted by the express provisions of the NMHCSSA.
For these reasons, and those given by the District Court,
I would affirm.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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