Cannon v. Coweta County

Hunt, Justice,

dissenting.

I agree with the majority that the plaintiff has standing to challenge the ordinance, just as would any property owner in Coweta County desiring to place a manufactured home on his property but prohibited from doing so by the ordinance. I disagree, however, with the majority’s conclusion that the ordinance is unconstitutional. The majority correctly notes the ordinance the plaintiff challenges is a valid exercise of Coweta County’s police power unless it is “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.” Village of Euclid v. Am*61bler Realty, 272 U. S. 365, 395 (47 SC 114, 71 LE 303) (1926). “[T]he power to classify in the adoption of police laws . . . admits of the exercise of a wide scope of discretion.” Lindsley v. National Carbonic Gas Co., 220 U. S. 61, 78 (31 SC 337, 55 LE 369) (1910). It is well established in this state that manufactured homes are properly subject to regulation under the police powers of local governments. Hornstein v. Lovett, 221 Ga. 279 (144 SE2d 378) (1965); Nichols v. Pirkle, 202 Ga. 372 (43 SE2d 306) (1947). The majority of courts faced with the question of the constitutionality of restricting manufactured homes to designated areas generally have upheld such ordinances. See generally Rathkoph, The Law of Planning and Zoning § 19.04; Annot., 17 ALR 4th 106, 111 § 3 (1982). Considerations such as encouragement of the most appropriate use of land and conservation of property values have been held to be proper justifications in restricting the location and use of manufactured homes for the protection of the general welfare.3 See, e.g., Duggins v. Town of Walnut Cove, 306 SE2d 186 (N.C. 1983); City of Brookside Village v. Comeau, 633 SW2d 790 (Tex. 1982); Warren v. Municipal Officers of Town of Gorham, 431 A2d 624 (Me. 1981); City of DeSoto v. Centurion Homes, Inc., 573 P2d 1081 (Kan. 1977).

Here, the county presented evidence, and the trial court found, that placement of manufactured homes next to site-built homes would adversely affect the property value of the site-built homes. While this finding might be debatable, it is not clearly erroneous and this court is not authorized to substitute its findings of fact for those of the trial court. Moreover, the majority proceeds to perform the trial court’s fact-finding function relative to the issue of whether the ordinance bears an insubstantial relation to the public health, safety and welfare. The majority then concludes that Cannon met his burden of proof and that the county failed to adequately rebut that proof. I would hold the' trial court’s findings were adequate. If findings of fact are necessary, this court should not make its own findings *62but, rather, should remand this case to the trial court for proper findings.

Decided March 13, 1990 — Reconsideration denied March 29, 1990. Dillard, Westmoreland & Wilson, Dick Wilson, Jr., Shawn D. Stafford, for appellant. Freeman & Hawkins, H. Lane Young, Robert U. Wright, A. Mitchell Powell, Jr., for appellees.

I am authorized to state that Chief Justice Clarke and Justice Fletcher join in this dissent.

The Coweta County ordinance does not exclude mobile homes entirely. Rather, the ordinance limits mobile homes to mobile home parks in the county, and does not preclude owners of mobile home parks from applying to enlarge an existing park or to build an entirely new park. Further, manufactured homes on lots containing or previously zoned for manufactured homes under the former ordinance are grandfathered. The owner of a manufactured home occupied lawfully under the previous ordinance may keep it, replace it with a new manufactured home on the same lot, or transfer it, together with its lot, to a new owner. Thus, the number of manufactured homes outside parks in Coweta County can remain the same as before the enactment of the ordinance, manufactured homes can be placed in existing parks, and owners of manufactured home parks may apply to enlarge their parks or to build new parks. Also, the record reflects that a number of mobile home parks currently in Coweta County are operating at less than full capacity and that there are existing grandfathered lots outside of parks on which manufactured homes can be placed. Under these circumstances, I cannot conclude that the county’s action is unreasonable.