“The only reason to ban smaller homes is to artificially inflate housing costs and exclude hardworking residents who do not make enough money to afford a larger home, which are not legitimate government interests.” So says part of the pleadings by the Institute of Justice (IJ) which along with another attorney acting pro-bono, has filed suit against officials in Calhoun, Georgia. Per the pleadings, “The City’s [Calhoun, GA] irrational ban on homes smaller than 1,150 square feet thus denies THHU due process of law, in violation of Article I, Section I, Paragraph I of the Georgia Constitution, because it does not bear a substantial relationship to the public health, safety, or general welfare. This Court should therefore declare that the Minimum Floor Area Requirement is unconstitutional both as applied to THHU and on its face, and enjoin the City from enforcing the requirement. Alternatively, or in addition, this Court should grant a Writ of Certiorari and find that the Defendants’ denial of THHU’s application for a variance from the Minimum Floor Area Requirement was based on errors of law and was not supported by substantial evidence.” Arguments like that, in tandem with enhanced preemption found in the Manufactured Housing Improvement Act of 2000 (MHIA), could be ground-breaking for liberating manufactured housing. During an affordable housing crisis, which is near the heart of the Calhoun case, manufactured housing is being denied coast-to-coast by local zoning issues. If the Tiny House Hand Up (THHU) nonprofit, IJ, and a pro-bono attorney can enter into such a suit in Calhoun, where is the Manufactured Housing Institute (MHI) doing something similar? Why hasn’t MHI – for example – supported or entered into similar such efforts – such as the manufactured home Plant A Home case involving the Taft’s in Ayden, NC?
“But excluding lower income people is not a permissible zoning objective,” is just one of several points in the pleadings by IJ on behalf of this tiny house project. Arguments by IJ and their local counsel against size, appearance, etc. are made too.
Per the IJ connected pleadings on behalf of THHU et al:
- “Georgia’s constitution provides that “[n]o person shall be deprived of life, liberty, or property except by due process of law.” Ga. Const., art. I, § 1, para. I”
- “A zoning restriction comports with due process of law only if it bears a “substantial relationship” to the public health, safety, or general welfare. Barrett v. Hamby, 235 Ga. 262, 265, 219 S.E.2d 399 (1975).”
This report and analysis will provide the following elements.
- An example of media coverage of this Tiny House Case in Calhoun, GA.
- The posted overview statements of this same matter from the Institute of Justice (IJ) website.
- A video by the IJ.org
- The lawsuit filed obtained by MHProNews from IJ.
- Additional Information, Manufactured Housing Related MHProNews Analysis and Commentary
Part I. From the WND Newscenter to MHProNews, with their permission is the following.
City sued for banning smaller, and more affordable, homes
Project planners propose 600-square foot residences for $95,000
By Bob Unruh
Published October 30, 2021 at 5:12pm
In the economy of 2021 where homes prices are rising in some parts of the country by thousands of dollars per week, not everyone can afford a typical suburban home of 2,000 square feet with three beds, two baths and a two-car garage.
So a nonprofit in Calhoun, Tiny House Hand Up, planned to build homes of some 600 square feet that would be more affordable, take up less land and fill a need for homes.
Until the city banned them.
Now the organization has filed a lawsuit, in Superior Court for Gordon County, with the help of the Institute for Justice, challenging that restriction.
“Your home is your castle. But in cities and towns throughout Georgia, the kind of home you are allowed to buy is limited not just by the price tag but by something unexpected: the government,” the institute explained.
“Tiny House Hand Up (THHU), a Calhoun nonprofit that wants to use donated land to fill a niche for smaller, less costly homes, has been blocked by the town despite demand for these homes. Why? Not because the proposed homes fail any health or safety standard, but simply because they are smaller than the government wants.”
“There is no health or safety reason to ban smaller homes,” said IJ Senior Attorney Erica Smith Ewing. ”People around the country live in smaller homes without any issues, even in Calhoun in homes built before the ban.”
The city’s poverty rate has made the problem worse than it is in some other locations, and Cindy Tucker’s plan for a nonprofit to address those needs grew out of her own recognition of the problem.
“The Georgia nonprofit is ready to break ground on the ‘Cottages at King Corner,’ a community of beautiful, Southern-style cottages with 540 to 600 square feet of living space each. They have housing plans, support from a financial institution to help finance mortgages, and contractors at the ready. All they need is for the government to get out of the way,” the IJ explained.
“We know that the market is there. We know that people are interested in purchasing these homes,” said Cindy. “I don’t care if it’s one percent, if we can help that one percent, we need to do that.”
The institute reported other Georgia cities have similar restrictions that need to be addressed, from Marietta’s decision not to allow homes smaller than 1,200 square feet, and College Park’s lower limit of 1,600 square feet for a home.
In those locations, median housing prices have risen 14.6% and 55% from September 2020 to September 2021, alone.
“People have different reasons for wanting to live in a smaller house, from downsizing and simplicity to affordability,” said IJ Attorney Joe Gay. “Calhoun shouldn’t make these personal choices illegal.”
The lawsuit charges Calhoun’s ban violates the Due Process Clause of the state Constitution, because under that standard, zoning restrictions that limit the use of private property are only allowed if they bear a “substantial relation to public health, safety or general welfare.”
The court filing charges that its goal is to vindicate the constitutional rights of property owners to use their property in a way in which it has traditionally been used.
Calhoun’s actual minimum size for a home is 1,150 square feet of interior floor area.
“Forcing people to build and live in unnecessarily large homes does not serve any legitimate government interest,” the filing charges. “Smaller homes are perfectly healthy and safe: while zoning codes regulate the use of land, building codes provide standards for construction safe buildings, and the cottages THHU wants to build would comply with all state and local building code requirements.”
Actually, the case charged, “the only reason to ban smaller homes is to artificially inflate housing costs and exclude hardworking residents who do not make enough money to afford a larger home….”
The court filing points out that for the first 149 years it was a city, Calhoun didn’t need a minimum square footage for homes.
The plan is to sell the homes for less than $95,000.
“THHU is ready to build,” the filing explains. “They have housing plans, support from a financial institute to finance mortgages, and contractors at the ready.”
The project planners say the city has refused to negotiate over the size of the homes in order to serve lower-income populations.
The case asks that the city’s minimum home size be thrown out, and the city be barred from enforcing it. ##
##
Part II. Institute for Justice, https://IJ.org/ posted information on Calhoun, Georgia Tiny House Case.
Homeownership is financially unfeasible for too many in Calhoun, Georgia. Its poverty rate is more than twice the national average and its rate of homeownership is over 36% lower. 1
Unsurprisingly, almost 20% of homeowners and 40% of renters in Calhoun live in unaffordable housing, which typically means housing that costs more than 30% of household income. 2
A few years ago, Cindy Tucker grew tired of talking about the problem and decided to act. She is the executive director of a nonprofit called Tiny House Hand Up, Inc., or THHU, which was formed by concerned residents to fill the void left by what they perceived to be Calhoun’s ineffectual efforts to address housing affordability.
Cindy and THHU seek to help hardworking residents of Calhoun and surrounding Gordon County achieve their dreams of homeownership by building smaller, Southern-style cottage homes. This housing would occupy a crucial niche in the housing market. The city of Calhoun rents a limited number of subsidized government-owned apartments, but that does not provide a path to homeownership and wealth accumulation, nor does it help those who are not eligible for a subsidy but are priced out of the current housing market. Focusing on smaller cottage homes is a simple and elegant solution to housing affordability: smaller homes cost less to build, so they are inherently affordable and can be sold at market rates without relying on limited government subsidies.
Cindy and THHU are ready to build. They received a donation of about eight acres of undeveloped land where they want to build a community of beautiful homes called the “Cottages at King Corner.” They will start with six homes with one to two bedrooms and between 540 to 600 square feet each and hope to eventually grow the community to between about 20 to 30 homes. They have housing plans, financial support from a bank, and contractors at the ready. All they need to start building is for the government to get out of the way. After Tiny House Alliance USA connected THHU to IJ, they started working to make that happen.
Calhoun bans smaller homes from being built
Instead of applauding their citizens’ bottom-up, market-based solutions to housing affordability, the city of Calhoun has stood in the way. Cindy and THHU cannot build their planned community of cottage homes because the city of Calhoun has banned smaller homes from being built. Calhoun’s zoning code includes “minimum floor areas” that prohibit building single-family homes unless they exceed a certain size. The smallest home permitted in areas zoned for single-family homes is 1,150 square feet. (Some zones require even larger homes of 1,800 square feet!) Complying with the 1,150 square feet requirement would add $65,000 to $90,000 to THHU’s costs to build each home.
Cindy and THHU spent years trying to negotiate with the city of Calhoun for permission to build their cottage-home community. But Calhoun would not budge. City officials made clear that they did not want smaller homes built within city limits.
Cindy and THHU made one last attempt and applied for a zoning variance, an application for an exception to the zoning restrictions, that would let them build cottage homes between 540 and 600 square feet. On October 11, 2021, the City Council held a public hearing where it heard from a handful of opponents—including a developer who owned the adjoining undeveloped property and was trying to buy THHU’s property. The opponents argued that building smaller homes would lower property values and that homes that are affordable to lower-income people will invite “riff raff” into the area. After listening to these comments, the City Council denied the variance.
Throughout Georgia, large minimum square footage requirements reduce the options homebuyers have. Sometimes, the square footage requirements are even larger than Calhoun’s. For example, Powder Springs requires new homes to be at least 1,400 square feet, and median home prices rose 11.5% from September 2020 to September 2021. College Park has a minimum requirement of 1,600 square feet, with home prices rising 55% in the same period.
Calhoun’s irrational ban on smaller homes violates the Georgia Constitution
The city of Calhoun’s ban on smaller homes is not just misguided—it violates the Due Process Clause of the Georgia Constitution. 3
Under the Due Process Clause, zoning restrictions that limit the use of private property are only permissible if they bear a substantial relation to public health, safety, morality or general welfare. 4
Banning smaller homes serves none of these purposes. Small homes are just like any other home, just smaller. They are perfectly healthy and safe, and they would comply with all building code requirements.
The smaller homes that Cindy and THHU want to build would also contribute to the general welfare by creating a community of charming, Southern-style cottages and plenty of green space. The community would improve the surrounding area, which consists of warehouses, manufacturing plants, cow pastures and single-family homes. Indeed, the city of Calhoun was perfectly willing to let Cindy and THHU build a truck terminal, warehouse, or scrap metal processor on the property—just not smaller homes.
The real motivations for Calhoun’s ban on smaller homes are clear: smaller homes are more affordable. If you build more affordable homes, people who can afford to live in those homes will become your neighbors—people described as low-income and “riff raff” by one of a handful of opponents who spoke at the public hearing just before Calhoun rejected Cindy and THHU’s proposal. Conversely, larger homes also cost more to build, so forcing people to live in larger homes artificially inflates property values.
That’s not just wrong, it’s unconstitutional. People have lived in small homes in Calhoun, in Georgia, and around the country for generations without issue. Georgia’s Constitution does not allow cities to trample the right to use property in this manner in the name of excluding people and artificially inflating housing costs.
The Litigation Team
The litigation team consists of IJ Senior Attorney Erica Smith Ewing and IJ Attorney Joseph Gay. IJ is assisted by Atlanta attorney Aaron Block, who serves as local counsel in this case. Like IJ, Aaron provides his services pro bono.
The Institute for Justice
The Institute for Justice is a public-interest law firm that litigates nationwide to vindicate individual liberties. IJ fights against arbitrary government restrictions on the right to use property responsibly in ways that do not interfere with anyone else’s use of their property. IJ has successfully challenged arbitrary laws that prohibit people from using their property in ways that people have always used their property: to grow vegetables on their front lawn, to run small home businesses, and to bake and sell food from a home kitchen. Government busybodies increasingly want to say not only what you may do on your property, but also what kind of home you are allowed to live in. IJ stands ready to continue to help homeowners fight these increasingly intrusive and irrational regulations.
- 2019 data. See Data USA: United States & Calhoun, GA, https://datausa.io/profile/geo/united-states?compare=calhoun-ga, at Introduction and Housing & Living.↑[Back to Text]
- 2014-18 data. See Department of Housing and Urban Development, Comprehensive Housing Affordability Strategy Data, filtered for Calhoun metropolitan area, data on Housing Cost Burden Overview, https://www.huduser.gov/portal/datasets/cp.html↑[Back to Text]
- Ga. Const. art. I, § I, para. I.↑[Back to Text]
- Barrett v. Hamby, 235 Ga. 262, 265 (1975).↑[Back to Text] ##
##
Part III. Case related video by the IJ.org
Part IV. IJ connected Lawsuit Pleadings
The download of the case pleadings obtained by MHProNews, per the IJ, regarding the Calhoun, GA tiny house case is linked here.
Part V Additional Information, More Manufactured Housing Related Facts and MHProNews Commentary
ICYMI, MHProNews and MHLivingNews have been doing periodic reports on the controversy in the Ayden, NC “Plant a Home” issue. The Taft’s, a black family, were initially approved for a new home by local officials. But once the family decided that they wanted to pursue a manufactured home, they were later denied. This is even though, per local sources, that a manufactured home is already in place on the same block that the Taft’s wants their home.
These three local reports and column set the context of the Plant A Home controversy.
- https://www.reflector.com/news/local/plant-a-home-program-helps-ayden-grow/article_16c6317b-c6ba-5a1c-a56d-a365de56607e.html
- https://www.reflector.com/standard/features/local/ayden-denies-special-use-permits-for-manufactured-homes/article_5406d4ff-3d7a-549f-a432-c543be08e82a.html
- https://www.reflector.com/standard/opinion/editorial_columnists/legal-moral-and-pragmatic-reasons-support-affordable-home-ownership-and-aydens-plant-a-home-program/article_378be022-22ca-11ec-8b8f-433a5b26a726.html
Please read that third linked column above on the Reflector carefully. One link may be bad, but the linked items are important, and set the context for manufactured housing industry professionals.
One, the Taft family and Rev. Ivory Mewborn, a local elected official working on behalf of his constituents that also include numbers of minorities. They could have used the support of HUD, the Manufactured Housing Institute (MHI), and MHI’s local affiliate. Per local sources, so far, there has been no engagement by MHI, their NC-MHA.org local affiliate, or HUD.
In no particular order of importance, are the following related reports.
With that backdrop, here is the simple, over 64 billion dollar question. If Calhoun’s THHU nonprofit and the IJ could sue on behalf of a tiny house project, why hasn’t MHI sued on behalf of manufactured housing’s “enhanced preemption” under the Manufactured Housing Improvement Act (MHIA) of 2000?
MHI and their corporate leaders can’t have it both ways. For several years, MHProNews and MHLivingNews have led the charge among all industry trade media in spotlighting the apparent disconnect between MHI’s claims and MHI’s lack of action in support of those claims. Other than MHARR, MHProNews, and MHLivingNews, who else has consistently and persistently exposed the disconnect between MHI’s words and their deeds among nonprofits, publishers, or bloggers?
MHI can’t have it both ways. If they are serious about advancing manufactured housing, as Lesli Gooch and their board claims, then let them get engaged on issues such as the one in Ayden, NC or elsewhere. MHI should put their money where their mouth is. They should sue to get enhanced preemption enforced. They should sue, if needed, to get FHFA, Fannie Mae, and Freddie Mac to follow the law that on paper MHI claims they want enforced.
Or, by extension and implication, MHI is quite apparently doing what Samuel Strommen from Knudson Law accused them of doing. Namely, working with their dominating brands to consolidate the industry while posturing working for “all segments” of the industry.
At what point will one or more MHI board members step up and call out their own trade association for failing to do what they mission statement calls for – yet apparently ignore? Time will tell. But there are several developing items that suggest that MHI’s role in a range of purported posturing without appropriate action will become a serious issue in Washington, D.C. and beyond. Stay tuned as we report on developments others in our profession all too often ignore, perhaps due to their own ties to MHI? ##
Our thanks to you, our sources, and sponsors for making and keeping us the runaway number one source for authentic “News through the lens of manufactured homes and factory-built housing” © where “We Provide, You Decide.” © ## (Affordable housing, manufactured homes, reports, fact-checks, analysis, and commentary. Third-party images or content are provided under fair use guidelines for media.) (See Related Reports, further below. Text/image boxes often are hot-linked to other reports that can be access by clicking on them.)
By L.A. “Tony” Kovach – for MHProNews.com.
Tony earned a journalism scholarship and earned numerous awards in history and in manufactured housing.
For example, he earned the prestigious Lottinville Award in history from the University of Oklahoma, where he studied history and business management. He’s a managing member and co-founder of LifeStyle Factory Homes, LLC, the parent company to MHProNews, and MHLivingNews.com.
This article reflects the LLC’s and/or the writer’s position, and may or may not reflect the views of sponsors or supporters.
Connect on LinkedIn: http://www.linkedin.com/in/latonykovach
Related References:
The text/image boxes below are linked to other reports, which can be accessed by clicking on them.
