                                                          [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                    ________________________
                                                      FILED
                           No. 97-8207
                    ________________________ U.S. COURT OF APPEALS
                 D. C. Docket No.3:94-CV-51-GETELEVENTH CIRCUIT
                                                      2/19/03
                                                 THOMAS K. KAHN
GEORGIA MANUFACTURED HOUSING, INC.,                  CLERK
DESTINY INDUSTRIES, INC., et al.,

                                             Plaintiffs-Appellees,
                                                 Cross-Appellants,
                              versus

SPALDING COUNTY, GEORGIA,
MARTHA W. MCDANIEL, et al.,

                                            Defendants-Appellants,
                                                  Cross-Appellees.

                    ________________________

          Appeals from the United States District Court
               for the Northern District of Georgia
                     _________________________

                        (August 6, 1998)

Before BLACK and BARKETT, Circuit Judges, and HENDERSON, Senior
     Circuit Judge.

BLACK, Circuit Judge:
       Spalding County, Georgia (County), amended its Zoning Ordinance to require

that manufactured homes be built with a 4:12 roof pitch to qualify for placement in

most residential districts. The district court struck down the 4:12 requirement, holding

that the 4:12 requirement violates equal protection, substantive due process, and the

dormant Commerce Clause and that the 4:12 requirement is preempted by federal law.

We reverse.

                                     I. BACKGROUND

       On January 4, 1994, Spalding County adopted the 4:12 requirement as part of

an amendment to its Zoning Ordinance. The amendment established three classes of

manufactured housing, two of which are relevant here. “Class A” manufactured

homes are homes1 that meet HUD standards for manufactured housing2 and satisfy

various additional criteria, including the following: the roof must have a pitch of at

least 4:12 (measured as the ratio of the roof’s rise to its horizontal run); the home must

have a width greater than 16 feet; the roof must be finished with shingles common to

residential construction; the exterior siding must be similar to common residential

construction; the area underneath the home must be enclosed by a masonry curtain


       1
           Manufactured homes are sometimes referred to as “mobile homes.”
       2
        Manufactured housing is regulated by the National Manufactured Housing Construction
and Safety Standards Act of 1974, 42 U.S.C. §§ 5401-5426, pursuant to which the Department of
Housing and Urban Development (HUD) promulgated regulations related to construction and safety.
24 C.F.R. §§ 3280.1-3280.904.

                                               2
wall; and the wheels and other transportation apparatus must be removed.3 “Class B”

manufactured homes are homes that meet HUD standards but do not satisfy the

additional criteria. The Zoning Ordinance permits placement of Class A homes in any

residential district as a matter of right; Class B homes are allowed in residential

districts only as exceptions. As a result of the Zoning Ordinance, most Class B homes

are placed in planned manufactured home communities.4

       Appellees brought this action against the County to challenge the amended

Zoning Ordinance as it relates to manufactured housing. The district court struck

down the 4:12 roof-pitch requirement and held a bench trial to determine damages.5

The district court awarded $28,580 in damages pursuant to 42 U.S.C. § 1983, and




       3
         The Zoning Ordinance lists three additional requirements for Class A manufactured homes:
the homes must be installed in accordance with certain provisions of the Official Code of Georgia;
the landings must comply with the requirements regarding size and composition listed in Section
1113 of the Standard Building Code of the Southern Building Code Congress International; and the
homes must not be used as storage facilities.
       4
         Planned manufactured home communities are sometimes referred to as “mobile home
parks” or “trailer parks.”
       5
         Although Appellees challenged all provisions of the Zoning Ordinance relating to
manufactured housing, the district court specifically limited its order to the 4:12 requirement. After
declaring the 4:12 requirement unconstitutional, the district court entered a series of orders resolving
various procedural issues. On appeal, we address only the initial order striking down the 4:12
requirement.

                                                   3
awarded $236,715.60 in attorneys’ fees and $17,878.99 in expenses pursuant to 42

U.S.C. § 1988. After the district court issued its order, the County filed this appeal.6

                                       II. DISCUSSION

       We review the district court’s finding of fact for clear error; we review the

district court’s legal conclusions de novo. Corn v. City of Lauderdale Lakes, 997 F.2d

1369, 1373 (11th Cir. 1993).

A.     Substantive Due Process and Equal Protection

       Appellees assert the 4:12 requirement violates their Fourteenth Amendment

rights to substantive due process and equal protection. Because the 4:12 requirement

does not target a protected class, the substantive due process and equal protection

claims both turn on the rational basis test; specifically, the 4:12 requirement must be

rationally related to a legitimate government purpose. Restigouche, Inc. v. Town of

Jupiter, 59 F.3d 1208, 1214 & n.6 (11th Cir. 1995).

       The rational basis test consists of a two-prong inquiry:


       6
         Appellees filed a cross-appeal asserting, as an alternative basis for affirming the judgment
of the district court, that the 4:12 requirement violates the Fair Housing Act, 42 U.S.C. §§ 3601-
3631 (FHA). Specifically, Appellees argue that the price increase resulting from the 4:12
requirement makes housing less affordable for two classes protected by the FHA: (1) families; and
(2) African Americans. The district court rejected this argument. The district court found that the
evidence presented by Appellees did not constitute a prima facie case of discrimination against
families. The district court also found that the overwhelming number of manufactured housing
residents in Spalding County are not African-American, demonstrating that the Zoning Ordinance
did not target this protected group. We agree with the district court and find no merit to the
arguments in Appellees’ cross-appeal.

                                                 4
             The first step in determining whether legislation survives
      rational-basis scrutiny is identifying a legitimate government purpose–a
      goal–which the enacting government body could have been pursuing.
      The actual motivations of the enacting governmental body are entirely
      irrelevant. . . .

             The second step of rational-basis scrutiny asks whether a rational
      basis exists for the enacting governmental body to believe that the
      legislation would further the hypothesized purpose. The proper inquiry
      is concerned with the existence of a conceivably rational basis, not
      whether that basis was actually considered by the legislative body. As
      long as reasons for the legislative classification may have been
      considered to be true, and the relationship between the classification and
      the goal is not so attenuated as to render the distinction arbitrary or
      irrational, the legislation survives rational-basis scrutiny.

Haves v. City of Miami, 52 F.3d 918, 921-22 (11th Cir. 1995) (internal quotations and

citations omitted); see also, TRM, Inc. v. United Sates, 52 F.3d 941, 945-46 (11th Cir.

1995). The first prong of this test is satisfied because the County could have been

pursuing the goal of “aesthetic compatibility,” seeking to reduce friction between the

appearance of site-built homes and manufactured homes by requiring manufactured

homes to conform with standard characteristics of site-built homes, such as roof pitch

and foundation. The goal of aesthetic compatibility is a legitimate government

purpose. Haves, 52 F.3d at 923 (approving “aesthetic uniformity” as a legitimate

rationale to support municipal zoning decisions).

      The second prong of the rational basis test is also satisfied. The County

rationally could have believed that the 4:12 requirement would advance the goal of


                                          5
aesthetic compatibility among houses in residential districts by setting a minimum

roof pitch requirement for manufactured homes that conforms with the standard

characteristics of site-built homes. Although the demarcation of 4:12 as the threshold

of acceptability for the roof pitch of manufactured homes may seem no more

appropriate than 3:12 or 5:12, the County has the discretion to select a minimum ratio

to advance its goal of aesthetic compatibility. Reasonable minds may differ as to

where the line should be drawn or whether a line should be drawn at all, but the

discretion to resolve that disagreement lies with the County, not the courts.7 Haves,

52 F.3d at 923-24. Accordingly, the 4:12 requirement does not violate Appellees’

rights to substantive due process or equal protection.

B.     Commerce Clause

       The district court ruled that the 4:12 requirement violates the dormant

Commerce Clause, concluding that the resulting burden on commerce clearly

outweighs the putative benefit of aesthetic compatibility. In reaching this result, the

district court focused on the burden on commerce in general rather than examining the

specific burden on interstate commerce.




       7
        The district court based its conclusion in large part on evidence that the 4:12 requirement
does not actually advance the goal of aesthetic compatibility. That inquiry imposes an
inappropriately high level of scrutiny on the County’s decisions. Haves, 52 F.3d at 922-23.

                                                6
      The 4:12 requirement applies equally to in-state and out-of-state business

interests and its effects on interstate commerce are incidental. The 4:12 requirement

therefore will withstand scrutiny under the dormant Commerce Clause “unless the

burden imposed on [interstate] commerce is clearly excessive in relation to the

putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844,

847 (1970).

      The district court made two findings regarding the burden on interstate

commerce:      (1) the 4:12 requirement has caused significant problems for

manufacturers both within and outside of Georgia; and (2) the 4:12 requirement

increases costs for members of the industry and consumers of manufactured housing.

These findings alone do not demonstrate the kind of economic protectionism

forbidden by the dormant Commerce Clause. First, laws that impose the same burden

on in-state and out-of-state business interest usually do not violate the Commerce

Clause. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 473, 101 S. Ct.

715, 728 (1981) (in holding that the burden posed on interstate commerce by a

Minnesota statute was not clearly excessive, the Court focused on the fact that both

in-state and out-of-state firms would be burdened equally: “there is no reason to

suspect that the gainers will be Minnesota firms, or the losers out-of-state firms.”).

As the Supreme Court explained, “[t]he existence of major in-state interests adversely


                                          7
affected . . . is a powerful safeguard against legislative abuse.” Id. at 728 n.17.

Second, the resulting price increases of manufactured homes do not weigh heavily

against the 4:12 requirement because price increases generally do not violate the

dormant Commerce Clause. See Exxon Corp. v. Governor of Md., 437 U.S. 117, 127-

28, 98 S. Ct. 2207, 2215 (1978) (in upholding a Maryland statute prohibiting oil

refiners from operating retail gas stations, the Court stated: “It may be true that the

consuming public will be injured by the loss of the high-volume, low-priced stations

operated by the independent refiners, but again that argument relates to the wisdom

of the statute, not to its burden on commerce.”).

      Appellees also assert that the 4:12 requirement discriminates against out-of-

state manufactured home producers because the entire manufactured housing market

(both in-state and out-of-state) will suffer at the expense of the site-built home market,

which, by its very nature, is local and therefore strictly in-state. The Fifth Circuit

rejected a similar argument in addressing a zoning ordinance that confined all

manufactured housing to planned manufactured home communities: “Plaintiffs have

not demonstrated that whatever mode of housing is built in lieu of HUD-code

manufactured homes, it will be provided by in-state suppliers.” Texas Manufactured

Housing Ass’n, Inc. v. City of Nederland, 101 F.3d 1095, 1104 (5th Cir. 1996), cert.

denied, __ U.S. __, 117 S. Ct. 2497 (1997). Similarly, Appellees have not proffered


                                            8
evidence that the 4:12 requirement will significantly aid the local site-built market at

the expense of the manufactured housing market, and the district court did not make

any such finding of fact.

      The relevant burden on interstate commerce is negligible and is not clearly

excessive in relation to the putative local benefits of the 4:12 requirement.

Accordingly, the 4:12 requirement does not violate the dormant Commerce Clause.

C.    Preemption

      The district court ruled that the 4:12 requirement is preempted by the National

Manufactured Housing Construction and Safety Standards Act of 1974, 42 U.S.C.

§§ 5401-5426 (Act), because the 4:12 requirement “interferes with the Act’s

construction and safety requirements and cannot be enforced without impairing the

Federal government’s superintendence of the manufactured home industry.” Congress

defined the preemptive effect of the Act as follows:

      Whenever a Federal manufactured home construction and safety
      standard established under this chapter is in effect, no State or political
      subdivision of a State shall have any authority either to establish, or to
      continue in effect, with respect to any manufactured home covered, any
      standard regarding construction or safety applicable to the same aspect
      of performance of such manufactured home which is not identical to the
      Federal manufactured home construction and safety standard.

42 U.S.C. § 5403(d). This Court has interpreted that subsection in the following

manner:


                                           9
       The language of the statute clearly precludes states and municipalities
       from imposing construction and safety standards upon mobile homes
       that differ in any respect from those developed by HUD. Thus, if the
       Lynn Haven ordinance conditioned mobile home entry into or sale in the
       town on compliance with the SSBC, thereby forcing manufacturers to
       meet construction and safety requirements other than HUD standards in
       order to do business in the City, the municipal act would be preempted.

Scurlock v. City of Lynn Haven, 858 F.2d 1521, 1524 (11th Cir. 1988) (footnote and

citation omitted). The district court appears to have relied in large part on the HUD

regulations that interpret the preemptive effect of the Act. The HUD regulations

provide:

       No State or locality may establish or enforce any rule or regulation or
       take any action that stands as an obstacle to the accomplishment and
       execution of the full purposes and objectives of Congress. The test of
       whether a State rule or action is valid or must give way is whether the
       State rule can be enforced or the action taken without impairing the
       Federal superintendence of the manufactured home industry as
       established by the Act.

24 C.F.R. § 3282.11(d). In Scurlock, a panel of this Court cited § 3282.11(d) as the

overarching test for preemption. 858 F.2d at 1525.8



       8
         We are bound by Scurlock's approval of § 3282.11(d). See Cargill v. Turpin, 120 F.3d
1366, 1386 (11th Cir. 1997) (“The law of the circuit is ‘emphatic’ that only the Supreme Court or
this court sitting en banc can judicially overrule a prior panel decision.”), cert. denied, __ U.S. __,
118 S. Ct. 1529 (1998). Nevertheless, we are not entirely convinced that the regulation is valid. The
HUD regulation seems to expand the scope of the unambiguous preemption provision enacted by
Congress. Compare 42 U.S.C. § 5403(d), with 24 C.F.R. § 3282.11(d); see also Cipollone v. Liggett
Group, Inc., 505 U.S. 504, 517, 112 S. Ct. 2608, 2618 (1992) (“Congress’ enactment of a provision
defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-
empted.”).

                                                  10
      Scurlock held that the Act preempted a local ordinance that forbade placement

of manufactured homes in residential districts unless the manufactured homes met

certain safety codes or had the seal of the Florida Department of Community Affairs.

Id. at 1522-23. Like the present case, manufactured homes could freely be placed in

planned manufactured home communities. Id. at 1523. In considering the validity of

that ordinance, the Court explained that the City has broad discretion in enacting

zoning ordinances:

      The law is well-settled that governmental bodies like Lynn Haven “have
      the right to set minimum standards for housing in residentially-zoned
      districts.” Grant v. County of Seminole, Fla., 817 F.2d 731, 736 (11th
      Cir.1987). Municipalities may zone land to pursue any number of
      legitimate objectives related to the health, safety, morals, or general
      welfare of the community. See generally 1 R. Anderson, American Law
      of Zoning 3d §§ 7.01- 7.03 (1986).

Id. at 1525. We concluded, however, that the City’s ordinance sought to control land

use through its safety code, and held that the ordinance was therefore preempted:

      The City is attempting to exclude the Scurlock’s mobile home from its
      R-AA section based solely on its safety code. The City building
      inspector agreed that if the home met the Southern Building Code
      requirement, a permit would be issued. Thus the City apparently wishes
      to apply its safety code to enforce land use.

Id.

      After Scurlock, we must decide whether the 4:12 requirement is a “construction

or safety standard” within the meaning of the Act, the enforcement of which would


                                        11
impair the federal superintendence of the manufactured home industry. In defining

the preemptive scope of the Act, Scurlock detailed the Act's legislative history and the

HUD regulations as follows:

      In considering the federal legislation and its impact upon the ordinance
      enacted by Lynn Haven, we must turn to the legislative history and the
      HUD regulations in order to resolve the federal preemption issue.
      According to Congress, the purposes of the Act “are to reduce the
      number of personal injuries and deaths and the amount of insurance costs
      and property damage resulting from [mobile] home accidents and to
      improve the quality and durability of [mobile] homes.” 42 U.S.C.
      § 5401. The Act undoubtedly represents consumer safety legislation.
      See 1974 U.S. Code Cong. & Admin. News 4279, 4340. Under its
      provisions, manufacturers of mobile homes must notify purchasers about
      any construction or safety defects and correct many at no charge to the
      consumers. See id. § 5414(a), (g). If a manufacturer discovers a defect
      before the mobile home is purchased by the consumer, it must
      “immediately repurchase” the home from the dealer or provide for
      repairs. Id. § 5412(a). Moreover, HUD is authorized to release to the
      public information concerning construction and safety defects present in
      particular homes, id. § 5413(c)(5), and manufacturers must provide
      purchasers with manuals explaining the operation, maintenance, and
      repair requirements of their mobile homes, id. § 5416. Finally, the Act
      states that “[t]he rights afforded [mobile] home purchasers under this
      chapter may not be waived, and any provision of a contract . . . to the
      contrary shall be void.” Id. § 5421. However, while consumer
      protection represents the primary goal of the legislation, complete safety
      is not to be obtained at all expense: in promulgating regulations, HUD
      must “consider the effect of [the standards] on the cost of [mobile]
      home[s] to the public.” Id. § 5403(f)(4).

             Pursuant to this congressional mandate HUD has developed
      standards covering “all equipment and installations in the design,
      construction, fire safety, plumbing, heat-producing and electrical systems
      of [mobile] homes.” 24 C.F.R. § 3280.1(a). The HUD regulations seek
      to establish performance requirements, see id. § 3280.1(b), in order to

                                          12
      protect the public against any unreasonable risk of death, injury, or the
      occurrence of accidents due to the design or construction of mobile
      homes, see id. § 3280.2(a)(18).

858 F.2d at 1524-25.

      By defining the scope of the federal superintendence of the mobile home

industry, Scurlock established that the construction and safety standards preempted

by the Act are those standards that protect consumers from various potential hazards

associated with manufactured housing. In contrast, a zoning requirement related to

aesthetics is not be preempted because the goals and effects of such a standard have

nothing to do with consumer protection, but instead seek to control the aesthetic

quality of a municipality’s neighborhoods.

      The 4:12 requirement is not preempted because it is not a construction or safety

standard within the meaning of the Act. Instead, the 4:12 requirement is an aesthetic

condition for placement of manufactured homes in residential districts. Unlike the

ordinance in Scurlock, the 4:12 requirement does not have any purported basis in

consumer protection, but is a straight-forward declaration that the County does not

want low-pitched roofs in its residential areas.9

      9
        This conclusion is supported by the district court’s quotation of the County’s
comprehensive land use plan adopted on April 4, 1994:
      Unfortunately, uncontrolled development has led, in many instances, to incompatible
      land uses being located next to each other. Several of these instances involve the
      location of mobile homes in the County.
      ....

                                           13
       Furthermore, the 4:12 requirement does not impede the HUD standards because

it does not alter or excuse the requirements for HUD certification, but simply imposes

an aesthetic condition for placement of manufactured homes in certain localities

within the County.10 The preemptive scope of the Act is not so broad as to limit the

County’s authority to regulate aesthetics through its Zoning Ordinance.                         See

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S. Ct. 2240, 2250 (1996) (in

performing preemption analysis, the Court explained that “we start with the

assumption that the historic police powers of the States were not to be superseded by

the Federal Act unless that was the clear and manifest purpose of Congress” (internal

quotations and citations omitted)).            Accordingly, the 4:12 requirement is not

preempted by the Act.



       In order to alleviate some of the friction caused by the development of mobile home
       sites and subdivisions, the County is in the process of adopting a new Unified
       Development Ordinance which will allow new mobile homes but requires that they
       conform with standard stick built home characteristics such as roof pitches and
       foundations.
       10
           The district court found that the 4:12 requirement forces builders to construct homes with
hinged roofs, i.e., roofs that are hinged to fold down during transportation. Pursuant to this method
of construction, ventilation and interior support mechanisms are not put in place until the home
arrives at its destination and the roof is straightened. Although HUD inspections normally occur at
the construction site, hinge-roofed homes receive HUD inspection and approval after arriving at
their destination through the issuance of an “alternate construction letter.” The 4:12 requirement
does not excuse compliance with the HUD standards. If it is impossible to satisfy both the HUD
standards and the County’s additional criteria, no manufactured homes will be designated Class A
and, therefore, all manufactured homes will be excluded from residential zones. Scurlock
recognized that such a result is permissible: “Undoubtedly [the City] could limit Zone R-AA to
conventionally-built residences and exclude mobile homes.” 858 F.2d at 1525.

                                                 14
                                III. CONCLUSION

      The district court erred in declaring the 4:12 requirement invalid. We reverse

the district court’s order, vacate the judgment, and remand for entry of judgment

consistent with this opinion.

      REVERSED, VACATED, and REMANDED.




                                        15
