Ask the typical business professional or sales agent this. Do they want to sell more or less of their product or service? Do they want more profits, or lower profits? The typical answer will be ‘More, of course.’
The background of this story is the profitable sale of more new HUD Code manufactured homes. But the foreground of this report is the headline question, because it explains a vital path to achieve the sale of more new homes for the manufactured housing industry.
Stating the obvious can clarify an issue.
Journalists are about seeking answers to questions. Associations are about agendas. A reasonable question is, what is an association’s agenda? Not just the Manufactured Housing Institute (MHI), but any association? How does a specific trade group go about promoting a stated agenda? Is a trade group or association successful? If not, why not? If so, how so?
Consider these possible goals.
- Selling more new manufactured homes.
- Closing more loans.
- Providing more of the products and services your firm or others in the industry may wish to sell.
- These are worthy and logical goals – an agenda – for every forward-looking business.
- They are also logically at the heart of the P.E.P. of every good post-production trade group, with P.E.P = Protect, Educate, and Promote.
Investors in publicly traded companies operating in manufactured housing, may wonder in the wake of the Cavco stock brouhaha, are publicly traded firms in MHVille doing all that they can to maximize shareholder value? Are some trade groups that a given company supports working toward more growth and profitability, or not?
With the backdrop of those interests, questions, and possible agendas, consider the following facts, quotes, and insights.
Rick Robinson, JD
During the 2017 battle in the state of Ohio over their state’s manufactured home regulatory commission, the Manufactured Housing Institute (MHI) Senior Vice President (SVP) and General Counsel, Rick Robinson made an argument on behalf of the industry in that state’s House of Representatives.
That argument included a mention of the federal preemption that HUD Code manufactured housing enjoys. The text of that talk by Robinson is linked here as a download. While one could argue that the way it was phrased by Robinson could have been stronger and more compelling, the fact that Robinson mentioned federal preemption makes it clear that MHI grasps that aspect of the law. Indeed, Robinson’s and MHI’s efforts in Ohio fell short.
It is widely acknowledged, including by MHI, that zoning and related challenges are a concern that is hampering the sales of more HUD Code manufactured homes. This is no secret. It’s been a challenge for many years. MHLivingNews, in an article by award-winning journalist Jan Hollingsworth, linked from the text-image box below, spotlighted that problem some years ago.
Local Star Chambers Wage War on Affordable Housing – manufacturedhomelivingnews.com
“The one issue that will prohibit affordable housing in the future – not only manufactured homes, but site-built – is local zoning and covenants.” – Jay Hamilton, executive director of the Georgia Manufactured Housing Association Armed with facts, figures and studies, he explained that manufactured homes were as well or better built, more fire resistant, more wind resistant – and far more affordable – than their site-built counterparts.
In an interview for that article by Hollingsworth, a Texas retailer told our journalist that zoning and placement issues were a bigger challenge to the industry than
Pause and ponder that for a moment. A volume retailer, in the number one state selling for manufactured housing, said that the biggest issue at that time wasn’t fewer lenders or points and fees on manufactured housing loans. The biggest issue wasn’t the MLO rule, which has since been rolled-back as part of the Trump Administration’s deregulatory agenda.
The biggest issue for retailers – per Gary Adamek, of Fayette Country Homes – was zoning and placement related woes.
The Manufactured Housing Association for Regulatory Reform (MHARR) has likewise spotlighted the issue for several years. Indeed, one might say that MHARR fought for this issue over 20 years ago, in the run up to what became the Manufactured Housing Improvement Act of 2000 (MHIA 2000).
Associations in the same industry normally monitor each other’s work. MHI was also part of the process of getting the MHIA 2000 passed into law. So, there is no denying that MHI would institutionally know about federal enhanced preemption.
Furthermore, MHI hired an attorney to attempt to threaten – some might say, attempt to bully – MHProNews, and their attorney said they will be monitoring our website. Okay, it’s a public site for industry professionals. Put differently, MHI stated via said outside counsel that they read what MHProNews publishes. We already knew that from a variety of other MHI sources. But MHI’s contracted outside attorney from Ohio made their close reading of the MHProNews website official.
The point is that there are no common-sense arguments that MHI can make whereby they could claim ignorance of federal preemption, or any lack of knowledge about the enhanced preemption provided under the MHIA or 2000.
Those predicates establishes these facts. MHI knows about federal preemption, and enhanced preemption.
Which brings up the following.
Author Rick’s Book…
Rick Robinson Twitter handle is @authorRick, so tweets about him are at #authorRick. Robinson wrote a book entitled “Writ of Mandamus.” The dictionary defines said writ as follows.
So, attorney and author Robinson knows this infrequently mentioned legal process — the writ of mandamus. Follow the evolving logic, because it is potentially profitable, thus worthwhile, as well as revealing.
How and why? Because properly applied, there is at hand a potent legal tool that already exits that could lead to opening more markets for manufactured housing (MH) sales. Everyone in the MH industry that benefits from more sales would benefit from the application of the details revealed in this report.
So, MHI should care about using this, and be front and center on this issue, right?
Getting a Law Enforced
The passage of a law is normally a multi-year task. Perhaps sadly, it may then become a challenge to get a law enforced. At least, that has been the experience of the manufactured housing industry on some key pieces of legislation.
Two current and practical examples of that challenge of getting an existing law enforced?
- The Duty to Serve (DTS) Manufactured Housing and underserved markets mandated for the Government Sponsored Enterprises (GSEs) of Fannie Mae and Freddie Mac under the Housing and Economic Recovery Act of 2008 (HERA).
- The routine enforcement by HUD of the “enhanced preemption” clause of the MHIA 2000. It will be recalled that Arkansas Manufactured Housing Association (AMHA) Executive Director JD Harper has sounded off on the issue of enhanced preemption several times, including here on MHProNews. By contrast to enhanced preemption, HUD vigorously enforces fair housing laws. Where is a similar level of enforcement for the MHIA of 2000 enhanced preemption by HUD?
It should be noted that a source at HUD told MHLivingNews that HUD had a staff attorney who served that agency’s manufactured housing division for years and who per sources routinely declined to enforce that enhanced preemption provision of the federal code. As a side note, the finger pointing at an attorney was not Bill Matchneer, but another lawyer who has since left the agency after several decades there.
Why did that attorney not push HUD’s preemption for manufactured housing hard?
Note that HUD’s preemption has been enforced, as Jennifer ‘Jen’ Hall from the Mississippi Manufactured Housing Association (MMHA) demonstrated. See her article about the letter she obtained from HUD regarding federal preemption. Hall’s commentary on that HUD letter are linked here, with the document from HUD on preemption linked here.
Nor is Jen Hall alone. JD Harper, with the Arkansas Manufactured Housing Association, is another example of a state association executive that has weighed in publicly on the federal preemption issue.
So, a number of state execs know about federal preemption too. At least some have previously pushed for the enforcement of said federal preemption.
There are several states associations where sales volumes are so low that their state trade groups are marginal at best in size and resources. Thus, it falls to Arlington, VA based MHI, which claims to represent “all segments of factory-built housing industry” – including after construction, a.k.a. post-production issues – to seek the enforcement of this worthwhile federal law.
Where is MHI on that potentially profitable effort?
What is the MHI agenda on seeking the robust application of federal enhanced preemption?
These are important questions that demand answers from MHI. Given months of shipment declines during an affordable housing crisis, what better time than now for them to answer those questions? The latest data and analysis on the falling numbers for manufactured home shipments are linked from the text-image box below.
So, there are good federal laws that are on the books. Why are those federal laws not being properly enforced? MHARR in their recent report on the challenges facing new manufactured home shipment levels mentioned as important factors zoning, placement, and DTS.
Those are all post-production topics. So, the spotlight logically falls on MHI.
MHI and Their Photo Ops with Federal Officials
MHI enjoys touting their connections with high-level officials. Photos ops, like the one illustrated here, are shown to their readers, which are presumably supposed to impress their members and demonstrate visually MHI’s self-proclaimed ‘clout.’
But where is the use of that claim by MHI of ‘clout?‘
MHI has complained periodically about zoning and placement that hinders more manufactured housing sales. At least by word, HUD Secretary Carson promised a “new era of cooperation” with manufactured housing at an MHI event. Certainly, Pam Danner was exited from the program – which was achieved in large part by the efforts of MHARR, per the Washington Post.
Was enhanced preemption raised by MHI at their various meetings with Secretary Carson or other key HUD staffers? If so, to what effect? If the topics were not broached, why not?
In the words of the classic Wendy’s ad, “Where is the beef?”
Or consider Western Communities association executive director Sheila Dey, JD, in her recent Op-Ed complaining about a lack of placement parity in her state. Dey is correct that manufactured housing is a smart option for affordable housing, and she made useful points on the need for that parity in placement.
But why is Dey left pleading with state officials for a state law at all? Why not make what can be viewed as a more logical plea? Why isn’t her trade group and MHI jointly going to HUD, and ask, ‘What’s up with the lack of enforcement of federal preemption for manufactured homes?’
Those local zoning issues would arguably vanish, if federal preemption were robustly enforced. One logical result is that manufactured home sales could soar.
Countering False Narratives Against the Placement of Manufactured Homes
Beyond the preemption law itself, the article linked below outlines compelling facts that explain why it is in the state or local governments’ best interests to push for more affordable manufactured homes. The report below lays out the logic as to why local and state governments ought to embrace manufactured homes, why it would be an economic boon to them, good for their residents, why it is proven not to harm neighbors values, and thus compliments the legal side of the enhanced preemption argument. An illustrated version of the mainstream media article linked below is found at this link here.
These realities beg these questions. Why aren’t MHI, Dey, or others routinely raising those points? They apparently know, based upon several sources, correct? So, why would they not use their best arguments? Yet as recently as this week, and for weeks on end, MHProNews has spotlighted the fact that the words “enhanced preemption” are not to be found on the MHI website.
How to explain this troubling oversight? Or is it rather, indicative of what is taking place in Arlington?
Occam’s Razor
It is the job of post-production associations to protect, educate, and promote (PEP) solutions to advance their industry. That PEP mantra is standard fare, according to an executive director of an MHI state affiliate.
So why isn’t MHI:
- Using their self-proclaimed ‘clout‘ to ask HUD to enforce enhanced preemption?
- If hypothetically HUD refused or declined for any reason to enforce enhanced preemption, then why didn’t MHI’s general counsel ask a court to issue a “writ of mandamus,” to compel the Feds to enforce the law?
- Since MHI’s staff, general counsel, outside counsel, and numerous – if not all – state associations know about MHARR and our publishing about Enhanced Preemption, then why isn’t the enforcement of enhanced preemption even on MHI’s own website?
Here again is Robinson’s testimony that mentions federal preemption, linked here.
Troubling Answers?
There are only a few reasonable conclusions that the facts, evidence, quotes, and logic herein and step-by-step reasoning reveals.
1) Perhaps MHI is inept. Maybe they are too lazy to put articles about enhanced preemption on their website, and maybe they are too unmotivated to actually make the case in Washington, or with local jurisdictions. That’s a possibility, right?
2) Or, MHI is trying to posture action – what MHARR’s Mark Weiss, JD called the “Illusion of Motion” – performing what seems like activity, while actually keeping the manufactured home industry at lower sales levels.
3) If #2 is true, one must ask, why would MHI work against more growth? Why would MHI fail to use sound legal arguments?
One proposed reason for #3 above that some in manufactured housing have advanced is that lower sales levels reduces business’ values. That in turn allowed Berkshire Hathaway and other corporate consolidators of smaller firms to acquire firms at a “discount.” That’s a Machiavellian charge, but in the light of recent incidents and allegations against Clayton Homes’ threat aimed at a prominent independent, is it unbelievable?
Meaning, is there a hidden agenda at MHI? If so, is it an agenda that may violate antitrust or other laws, and that violates their advertised claim of representing all segments of factory-built housing?
Inept. Or a hidden agenda. Does either conclusion look good for Arlington, VA based MHI?
As to state association executives, don’t forget what certain executives previously told MHProNews.
The above concerns raise even more vexing questions.
Why did MHI sound no alarms over the letter and related documentation linked below about 21st Mortgage, Warren Buffett, and the video with Kevin Clayton? After all, MHI claims to represent all segments of the industry, not just the big boys.
If MHI were ignorant about these issues, then their answer is to get educated. If they were ignorant before, they are now hereby educated, as they will read this along with their attorneys. Other readers should better grasp this issue, because it is posted on the most read-trade media site in all of manufactured housing.
There has been silence for a while from MHI’s outside lawyers. Will they, after this report, once more threaten MHProNews for calling MHI out for their purportedly false and misleading claims? One might ask, why doesn’t MHI use that same money spent on outside attorneys to contact cities and towns that violate enhanced preemption?
As noted, MHARR’s job is not post-production focused. But going above and beyond, MHARR’s President, Mark Weiss, JD, has at times been looped in or teamed up with MHProNews’ publisher to address certain test issues. Those include specific tests of enhanced preemption. Each test proved successful.
See the reports linked here below, with still more found further below, after the bylines, offers, and notices.
At the approaching Tunica Manufactured Housing Show, will Rick Robinson or any other MHI representative(s) be willing to publicly discuss, clarify, and debate these issues in front of hundreds of independents and other industry members?
If not, why not?
The solution for the affordable housing crisis is hiding in plain sight. Dey is correct in saying that manufactured homes are an important part of that solution. But there is growing evidence that the post-production voices that are supposed to represent all segments of the industry, are perhaps only representing the interests of the few.
That’s why NAMHCO members broke from MHI.
That’s why MHARR broke from MHI years before.
Isn’t it time now for the rest of the industry’s independents to seriously view this multiyear pattern of behavior and failures to truly implement good laws, to do the same as NAMHCO and MHARR have done? Meaning, should independents break with MHI, and to the degree possible, with those who support the Arlington based trade group?
Facts are #NettlesomeThings
Let MHI exist for the sake of big companies. It is their right. Let MHI cheerleaders kiss the MHI donkey all they want to, that’s arguably odd, but it is their right.
But it seems entirely wrong for MHI to claim clout, posture action, and assert that they care about growth, when in fact the solutions for the industry are already in hand.
Near the heart of that should be efforts to enforce laws already on the books. Those laws should be enforced, even if they may run counter to the interests of big companies that happen to be MHI members.
- Omaha-Knoxville and their surrogates in trade publishing can mouth whatever Arlington based MHI wants, that’s their right.
- But it is not MHI’s right to claim one thing, and do another. That’s deceptive. And there are legal sources that say that laws that relate to deceptive trade practices can be applied to trade associations.
If MHI were doing their job, our firm would still be a member. The fact that numbers have left or broken away from MHI to form new trade groups should speak volumes.
The facts laid out and linked from herein should reveal that the remaining independents may be feeding the hands that bites their own interests.
Some in MHVille – who are often associated with MHI – for their own reasons, purportedly want to mitigate sales growth. The reason stated is that lower sales volumes – or in the case of communities, more vacant home sites – makes buying out independents less costly.
Why are only MHARR and MHProNews raising such issues?
The logic of this is hard to avoid, once the facts are laid out in this fashion. But if MHI wants to issue a written statement that explains this, we are once more inviting them to correct or confirm the record.
Only the truth known and acted upon will set the industry free to achieve more robust sales. DTS and Enhanced Preemption are two of those tools. Why isn’t MHI using their clout to move them in a way that benefits the maximum number of industry professionals?
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