Request By:
Thomas M. Bertram, II, Esq.
317 Second Street
Vanceburg, Kentucky 41179
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning the interpretation and application of a municipal ordinance. The ordinance deals with the remodeling of residential and commercial property in the flood plain. The ordinance requires a building permit and sets out requirements for structures which are placeed or constructed in the flood plain.
Your question concerns the placement of mobile homes in trailer parks located within the city limits. You ask whether a trailer park, which was already existing before the ordinance was enacted, must comply with the ordinance. You are concerned with a particular trailer park located on property subject to flooding. Since the ordinance was enacted one trailer that had been in the park was moved out and another trailer was moved in. While in your opinion the ordinance would not affect any trailers which were in the trailer park prior to the passage of the ordinance, you are not sure how to handle mobile homes moved into the trailer court after the effective date of the ordinance.
Section 6 of the ordinance (Provisions for Flood Hazard Reduction), under General Standards (A), sets forth requirements pertaining to "Anchoring. " There are provisions stating that all mobile homes shall be anchored by providing over-the-top ties to ground anchors. The ordinance also defines "mobile home, " includes a mobile home within the definition of a "structure" and states that no structure or land shall hereafter be located, extended, converted or structurally altered without full compliance with the terms of the ordinance. The ordinance requires that the lowest floor of a structure, including mobile homes, be elevated to or above kthe base elevated to or above the base flood elevation. Furthermore, all new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage and all new construction and substantial improvements shall be constructed by methods and practices that minimize flood damage.
As you know, the Kentucky Building Code became mandatorily effective on a countywide basis in Lewis County on August 15, 1981. While mobile homes are not covered by the K.B.C., there is a section (424.3.1) which requires that every parking space for mobile units be provided with devices for anchoring the unit to prevent overturning or uplift. The owner of the parking space is required to anchor all mobile units located on the parking space.
In addition, while not directly related to the subject matter of your inquiry, you may also wish to examine the provisions of KRS 219.310 to 219.410 and 902 KAR 15.010 and 15.020, dealing with mobile home parks, and KRS 227.550 to 227.660, dealing with mobile homes and the construction standards and requirements for mobile homes. The actual construction of mobile homes is controlled by state law.
The general rule of statutory construction in connection with the application of legislation is set forth in 82 C.J.S. Statutes § 319, as follows:
"Statutes framed in general terms ordinarily apply to cases and subjects within their terms subsequently arising, and, unless plainly indicating the contrary, are to be construed prospectively, especially where substantive rights are involved. Accordingly, it is a usual rule of statutory construction that legislative enactments in general and comprehensive terms, prospective in operation, apply alike to all persons, statutes, and business within their purview and scope coming into existence subsequent to their passage. . . ."
In Peach v. 21 Brands Distillery, Ky.App., 580 S.W.2d 235, 236 (1979), the Court said in part as follows:
". . . A retrospective law is one which creates and imposes a new duty in respect to transactions or considerations already past. 73 Am.Jur.2d Statutes § 348. Whether a statute is to operate retrospectively, or prospectively only, may depend on legislative intent, but courts apply a strict rule of construction against retrospective operation and presume that legislatures intended a prospective application, especially when new rights and duties are created . . . ."
While buildings and the trailer court itself are somewhat permanent in nature, mobile homes, because of their mobility, their tendency to deteriorate and depreciate much more quickly than buildings, and the frequently itinerant nature of their inhabitants, present some rather unique problems to local officials. We concur with your analysis that the ordinance does not apply to mobile homes located in the trailer park on the effective date of the ordinance. The ordinance states that no structure (which under the ordinance includes a mobile home) shall hereafter be located, altered, etc., without complying with the terms of the ordinance. If only buildings were involved, the general rule would be that the ordinance would not affect those buildings already constructed and would only apply to those buildings constructed or substantially improved or altered after the effective date of the ordinance.
However, after examining the provisions of the city's ordinance, recognizing the unique problems presented by mobile homes as opposed to more permanent structures, knowing the reluctance of the courts to approve retroactive legislation and attempting to arrive at a somewhat practical solution, it is our opinion that the city's ordinance applies to those mobile homes moved into the trailer park after the effective date of the ordinance. We cannot find any reported court decisions dealing with the specific situation you have presented; so, ultimately, the matter is one for the courts to resolve.