STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
June 10, 1975
Ms. Mary Dell Cody
States Attorney's Office
Box 203
Yankton, South Dakota 57078
OFFICIAL OPINION NO. 75-103
Yankton County’s Land Use Plan-mobile homes
Dear Ms. Cody:
You have requested an official opinion on behalf of the Yankton County Planning Commission based on the following information:
The Yankton County interim plan provides that only one-family dwellings are allowed in particular areas. Certain individuals within the county are desirous of placing mobile homes within those areas. Their contention is that by removing the wheels and tongue from the mobile home and affixing it to a permanent foundation, it loses its character as a mobile home.
The plan provides the following definitions:
Dwelling-any building or part thereof, other than a mobile home, which is designed or used exclusively for residential purposes by one (1) or more human beings either permanently or transiently.
Dwelling, One Family-a dwelling designed for, or occupied exclusively by, one family.
Mobile Home-any occupied vehicle used or so constructed as to permit its being used as a conveyance on the public streets or highways and duly licensed as such, and shall include: self-propelled or non-self-propelled vehicles so designed, constructed, reconstructed or added to by means of an enclosed addition or room in such manner as will permit the occupance thereof as a dwelling or sleeping place for one (1) or more persons. Nothing in this definition shall be construed so as to include prefabricated, precut residences or those manufactured in sections or parts away from the site and transported thereto for erection, provided that when completely erected, said prefabricated, precut or manufactured residences shall be on a permanent foundation and in all respects comply with the Uniform Building Code, 1970 Ed. and amendments thereto, recommended by the International Conference of Building Officials.
The specific question is:
Does a mobile home which has been permanently affixed by foundation to the land upon which it is located become a single family dwelling for purposes of the Yankton County Land Use Plan?
Although similar questions have been addressed by former Attorney General Gordon Mydland (dictum in 1971-1972 AGR 93) and the South Dakota Supreme Court, City of Sioux Falls v. Cleveland, 75 S.D. 548, 70 N. W. 2d 62 (1955), neither of these opinions has value as precedent for the issue presented here. Definitions in the Fort Pierre and Sioux Falls zoning ordinances, construed in the above opinions, are not at all similar to those included in the Yankton County Land Use Plan.
Case authority from other states offers little guidance. First, there is a marked split of authority. Courts in some of the Atlantic coast states tend to differentiate between mobile homes with permanent foundations and mobile homes which are only temporarily anchored. Morin v. Zoning Board of Review of Town of Lincoln, 102 R.I. 457, 232 A. 2d 393 (1967). Yokley, ZONING LAW AND PRACTICE, 3d Ed. (1967), § 28-71. Several recent cases, however, largely from the northeastern states, have been espousing the view that no matter how immobilized and permanent a mobile home has become, it is nonetheless a mobile home for purposes of zoning. Rathkopf and Rathkopf, THE LAW OF ZONING AND PLANNNING, Volume 1, 3d Ed., 1973 Cumulative Supp., p. 327, People v. Clute, 18 N.Y. 2d 999, 278 N.Y.S. 2d 231 (1966). The second reason why case authority has limited precedential value is this: No zoning ordinance in any case is exactly like the Yankton County Plan.
Determination of the issue, then, will depend on interpretation of definitions and provisions of the plan, with special emphasis on the intent of the drafters:
The construction of zoning ordinances is governed by the general rules applicable to the construction of statutes, and the cardinal rule in such construction is to ascertain and give effect to the intention of the lawmaking body. 101 C.J.S., Zoning, § 128, p. 881.
Express intent can be determined by looking to the plain meaning of terms used in the plan.
The references to certain "mobile homes" as real property found in the tax statutes are not controlling for purposes other than taxation. SDCL 10-4-2 provides:
Real property, for the purposes of taxation, shall be construed to include the land itself ... and all ... mobile homes as they are defined in subdivision (1) of § 34-34A-l ... which are permanently affixed by foundation to the land upon which they are located. .. . (Emphasis added.)
It is significant that even when deemed to be real property the tax statute refers to permanently immobilized mobile homes as mobile homes.
Having eliminated other definitions the task now becomes one of dissecting the definition provided in the Yankton County Plan.
The definition requires a "vehicle used or so constructed as to permit it being used as a conveyance ... and duly licensed as such." A mobile home which is later permanently anchored nevertheless was "so constructed" to permit it being towed, and it was at one time duly licensed as such. Even though a real property tax assessment is paid in lieu of a licensing fee, the structure nevertheless retains its original character as a "mobile home."
The definition clearly indicated that even if modifications are made by construction, reconstruction or adding an enclosed addition of rooms, the mobile home is still a "mobile home."
In referring to the Uniform Building Code in the exemptions for prefabricated homes, the intent of the framers becomes more readily apparent. Something is a "dwelling" if it is constructed or "erected" on site, or if several prefabricated or precut sections are erected on site. Something is a "mobile home" if it was constructed in such a manner as to allow easy towing to a permanent, semi-permanent or temporary site, even if subsequent alterations are made:
Erection.... this term does not include repairing, altering, enlarging or removal. BLACKS LAW DICTIONARY, Revised Fourth Ed., p.636.
I therefore concur in the conclusion of the advisory opinion issued by the Yankton county States Attorney's Office on May 2, 1975, that the intent of the planners was "once a mobile home, always a mobile home" for purposes of zoning.
It is therefore my opinion that a mobile home which has been permanently affixed by foundation to the land upon which it is located does not become a "single family dwelling" for purposes of the Yankton County Land Use Plan, and that only those structures which are erected on site fall within the classification of "dwelling."
Respectfully submitted,
William Janklow
Attorney General
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