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-l (residential-agricultural) district, and placing them in other districts is excluded by *579implication.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
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 “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 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. § 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 *580excluding 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 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 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 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.
. 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.
. 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.