It Begins-And the Montana Miracle Glitches

January 8, 2024 by Nicole Masson
Policy/Legislative

By Wilf Sommerkorn, The Utah Land Use Institute Blog

The start of the legislative session is now only a little more than a week away, and bills are beginning to pop out.  One that has just come out is the same as one that was introduced near the end of last year’s session, H.B. 135 County Land Use Amendments.  The bill is a response to the crazy action taken last session when the legislature in essence gave approval for a proposed development in Summit County because the county had not taken action to establish an HTRZ (see March 4 blog posting).  This bill would rescind that action.

There is also a new, revised bill on developer-initiated infrastructure districts, H.B. 13 Infrastructure Financing Districts, which is still being carefully worked over by local government officials.  And a bill that would essentially do away with the Scenic Byway Committee and reassign and restructure how the program would work – S.B. 28 Scenic Byway Program Amendments.

There is also a bill in the works titled “Local Government Zoning Amendments” by Rep. Ray Ward, which I suspect may be similar to a bill he sponsored in the 2022 legislative session that would have prohibited cities and counties from enacting ordinances that would require lawn or turf landscaping.  The bill failed to pass.

Not to be a “told you so” snitch, but…  The famous Montana land use bills that were adopted in 2023 (see blog posts dated March 7 and May 8), that have earned that state a reputation nationally for the “Montana Miracle”, are facing strenuous legal challenges.  According to a January 2 story in the Montana Free Press, a court order keeps two of the four laws passed by the Montana state legislature from taking effect January 1.

The legal action is a restraining order intended to keep the laws from taking effect until the issues claimed in the suit challenging the bills can be heard and ruled upon, so a determination as to the legitimacy of the bills has not yet been decided.  But there are some interesting and ominous threads in what has been happening so far.

To be fair and accurate, the ruling does not affect the pivotal Montana Land Use Act bill, at least not yet.

Left in effect for the time being is the new Montana Land Use Planning Act, the broader land use planning framework that passed as Senate Bill 382, and Senate Bill 245, which requires cities of 7,000 residents or more to allow apartment-style housing in most areas zoned as commercial.

The two blocked laws are Senate Bill 323, which would require cities with 5,000 residents or more to allow duplex housing on any home lot, and Senate Bill 528, which would require cities to adopt regulations allowing more construction of accessory dwelling units, or secondary housing structures that share parcels with larger homes.

Readers of previous blog postings will know that I have been documenting for some time the rough go that top-down state land use reforms have had in being implemented at the local level as communities push back on measures they feel they have had little input on.  While the bigger Montana Land Use Planning Act was passed with bipartisan support and buy-in from local governments (much of the bill was written by Montana League of Cities and Towns Executive Director Kelly Lynch), that was not the case for the two injuncted bills.

.. Lynch … drew a distinction in an interview between the Land Use Planning Act, which she said her organization had been working to develop for years, and the other three bills, which city governments had generally opposed as legislative mandates that they regarded as preempting local control.

“These are really, really complicated issues — and that’s why they are best dealt with, in detail, through the community process and through local elected officials,” she said.

However, the legal action that prompted the injunction came, not from any of the local governments, but from a Bozeman area homeowners association.

The Bozeman-based plaintiff group, Montanans Against Irresponsible Densification, or MAID, describes itself as a group of members who live in neighborhoods “characterized by single-family homes, attractive well-maintained yards, and quiet streets.”

The new housing laws, the group argues in the complaint filed in Gallatin County District Court, aim to impose “top-down ‘densification’” that will force them to live in more densely populated areas with larger buildings, more traffic and “any number of other changes that spur uninterrupted development under the guise of affordable housing.”

This shows once again how imposition of top-down measures may well run into opposition, delay, and foot-dragging at the local level and will have a hard time being implemented to achieve their ostensibly laudable goals.

While the problem with the two bills that are stayed appears to be unequal treatment of neighborhoods that have restrictive covenants vs. those that don’t, the Montana Planning Act bill may not be safe either.  The issue there seems to be when public involvement is most appropriate, and when it is not.

The homeowners group has taken specific issue with provisions of the Land Use Planning Act intended to focus public land use debates on the policy-level conversations that produce growth plans while scaling back the number of project-specific public hearings.

The bill expands the role of public involvement during the development of community plans phase, but then reduces or eliminates such involvement when specific projects are proposed under the newly adopted land use regulations.  Lynch said,

“Once you make zoning decisions for particular sites based on what the community wanted to happen there, if the developer comes in with a proposal that fits that, why are we making them go through the wringer again?”

The judge noted, however, that he agreed with the plaintiffs contention that public involvement at the project-specific level may be as important.

“Plaintiff has established,” he wrote, “that one of the main intents behind the new measure was to cut back on public participation at the project-specific stage — i.e., the stage at which new developments most imminently threaten Montanan’s living in single-family neighborhoods.”

This case will be well worth watching for how it plays out and what effect it may have in other places around the country.