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67th Montana Legislative Session

HB 599: Generally revise opencut laws
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LC1883
Steve Gunderson (R) HD 1
Transmitted to Senate
3/4/21

A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING OPENCUT MINING LAWS; PROVIDING LESS STRINGENT APPLICATIONS FOR CERTAIN OPENCUT OPERATIONS; DEFINING “OCCUPIED DWELLING UNIT”; PROVIDING EXEMPTIONS; AMENDING SECTIONS 82-4-403, 82-4-431, 82-4-432, 82-4-434, AND 82-4-439, MCA; REPEALING SECTION 82-4-440, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND A RETROACTIVE APPLICABILITY DATE.“

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HB 527: Draft proposals before initiating Part I Zoning board
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LC2923
Fiona Nave (R) HD 57
Transmitted to Senate
3/4/21

A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING LAWS RELATED TO PLANNING AND ZONING DISTRICTS; REQUIRING THE SUBMISSION OF DRAFT PROPOSALS OF DEVELOPMENT PATTERNS AND ZONING REGULATIONS BEFORE DETERMINING THE NUMBER OF PETITIONS NECESSARY TO CREATE A CITIZEN-INITIATED ZONING DISTRICT; EXTENDING THE PERIOD TO PROTEST THE CREATION OF A PLANNING AND ZONING DISTRICT; REQUIRING THE SUBMITTAL OF DRAFT RESOLUTIONS TO THE BOARD OF COUNTY COMMISSIONERS; PROVIDING THAT PETITIONERS ARE LIABLE FOR EXTRA COSTS RELATED TO THE VALIDATION OF SIGNATURES OF MINERAL RIGHTS OWNERS; AND AMENDING SECTION 76-2-101, MCA.”

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HB 498: Clarify jurisdiction of board of oil and gas conservation
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LC2499
Steve Gunderson (R) HD 1
Transmitted to Senate
3/4/21

A BILL FOR AN ACT ENTITLED: “AN ACT CLARIFYING THE PRIMACY OF THE MINERAL ESTATE; CLARIFYING THE JURISDICTION OF THE BOARD OF OIL AND GAS CONSERVATION; AMENDING SECTIONS 76-2-209 AND 82-11-112, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.“

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SB 349: Revise zoning laws
oppose
LC2033
Steve Fitzpatrick (R) SD 10
Tabled
3/1/2021

On February 26th, MAP testified in opposition to SB 349 which would have mandated either 0.5 acre or 1.5 acre minimum lot sizes in all residentially zoned areas zoned under “Part 2” zoning.  Our understanding is that this bill was a response to one or two specific zoning efforts going on around Montana.  MAP stated that this broad brush approach was not the right solution and emphasized that changing existing residential zoning standards could have a significant impact on the predictability that landowners thought they had when they purchased a zoned property, the value of property, property rights, and quality of life issues.  We also pointed out that SB 349 would make it nearly impossible for counties to undergo meaningful zoning efforts that consider site-specific characteristics of property, infrastructure, and services, that other legislative efforts see as having a potential to streamline the subdivision review process.  MAP was pleased with the Senate Local Government Committee’s decision to table the bill.

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HB 528: Revise county planning, zoning, and subdivision laws
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LC2796
Julie Dooling (R) HD 70
Tabled
3/1/2021

MAP Opposes HB 528 because this bill creates a planning framework for Montana that is overly complex, burdensome, full of vague language and rife with redundant requirements. It will create a regulatory environment in Montana that will adversely affect the private sector as much as local governments and it will put small towns and counties at a distinct disadvantage.

The private sector will bear a significant burden of these new requirements. Our state planning statutes establish the process for planning, zoning, and subdivision that both the local governments and the public must follow. Private development is subject to these state statutes.  By placing extraneous restrictions on planning authority, we are making it exponentially more difficult for private citizens to operate in the regulatory environment, which increases the risk faced by local developers and it makes it all the more challenging to provide affordable housing and increased economic opportunity in local Montana communities. This is especially important to consider because most land use actions in this state are initiated by private citizens, not local government.

This bill puts small towns and counties at a distinct disadvantage. Most jurisdictions in Montana rely on consultants to provide planning services or have one planner on staff that may play other roles besides as the planner. The complicated and vague requirements and layers of redundant analysis will make updating plans and regulations out of reach for most small cities, towns, and counties. Only the largest jurisdictions with the funding and capacity will be able to afford operating within this new regulatory framework.  Planning provides many benefits to communities through economic development, grant competitiveness and infrastructure management.  The benefits planning provides and the ability to update rules and regulations to adjust to changing economic and social conditions will no longer be within the capacity of many small jurisdictions, and they are at risk of being left behind. This is especially problematic given the retroactivity clause associated with this bill.

MAP completed a review of state planning laws in North Dakota, South Dakota, Wyoming, and Idaho looking for language that is like this bill. None of our neighboring states have similar provisions. Planners understand that Montana’s planning, zoning, and subdivision laws are outdated and complex, and MAP believes we should be looking for ways to simplify our statutes, not further complicated them. This bill unnecessarily complicates our land use statutes, which will not protect property rights of the public as a whole and it will further inhibit the public’s ability to function in our regulatory framework. Let us work to simplify our planning statutes, not continue to complicate them, we urge you to oppose HB 528.

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HB 529: Revise planning, zoning, and subdivision regulation laws
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LC2797
Julie Dooling (R) HD 70
Tabled
3/1/2021

MAP Opposes HB 529 because the existing variance procedures in both subdivision and zoning regulations are a long-standing and time-tested process that works. This bill will result in a regulatory environment that is difficult for local government to administer and impossible for property owners and the general public to navigate.

A variance from a standard grants a property owner relief from that standard. They are determined based on site-specific conditions. The variance criteria found in most jurisdictions around the country have been in existence since the original enabling act was drafted almost 100 years ago. They have stood the test of time because of their simplicity, fairness, and effectiveness. If you meet the criteria, you are granted a variance. There is little room for subjectivity. This simple and effective process is the safety valve that protects the rights of property owners from standards that would prohibit the reasonable use of their property. It also protects the property rights of neighbors who expect all properties within a district to be held to the same standard and treated in the same manner. It is a familiar and effective process. Most property owners can fill out the application for a variance without hiring architects, engineers, or consulting planners.

This bill throws out the time-tested process for variances that we have used for almost a century. It attempts to make a new process, untested and unprecedented, in which the variance will become the rule. This proposed process abandons the simplicity and plain language that has stood the test of time, and instead embraces complexity and vague language. It will also disrupt the established and permitted development patterns and mixture of uses of neighborhoods and communities without undergoing a fair and open process where the property owners and residents within a district have a say in how development occurs within that district through the creation or update of regulations. The current variance process has one purpose, to protect the rights of those property owners who do not want to follow the rules, while diminishing the property rights of those who do. This new process will create a regulatory environment rife with uncertainty and difficult for the public to navigate. We urge a “do not pass” vote on HB 529.

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SB 294: Referendum to terminate a county zoning district
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LC3041
John Esp (R) SD 30
Transmitted to House
3/4/21

A BILL FOR AN ACT ENTITLED: “AN ACT REVISING COUNTY ZONING LAWS; PROVIDING FOR A REFERENDUM TO TERMINATE ZONING DISTRICTS; REMOVING CERTAIN PROTEST PROVISIONS THAT HAVE BEEN INVALIDATED BY THE MONTANA SUPREME COURT; AMENDING SECTION 76-2-205, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.“

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HB 470: Citizen initiated planning board, additional zoning criteria
oppose
LC3028
Marty Malone (R) HD 59
Tabled
3/1/2021

MAP stands in opposition to HB 470 because, although it may be well-intentioned, it does not
help clarify or improve procedural requirements or processes for local governments. In effect,
HB 470 creates new procedural requirements and substantive obstacles that unnecessarily
complicate a county’s ability to effectively plan for its future.
With respect to the creation of a county planning board, current law requires a board of county
commissioners to pass a resolution of intent to establish a county planning board, and then in
essence allow for a 60-day protest period from qualified electors residing within the jurisdiction
of the proposed planning board. HB 470 requires a majority of qualified electors to sign a
petition to create a planning board before a board of county commissioners even considers a
resolution of intention, and then requires another protest period. This implements a redundant
process.
When it comes to identifying qualified electors, the proposed language in Section 1 is
unnecessarily complicated. It would suffice to say that a qualified elector must reside within the
jurisdictional area of the proposed planning board.
MAP generally agrees that in the process of establishing a zoning district, it is appropriate for a
planning board and board of county commissioners to factor various social, economic, and
environmental considerations into their decision. However, as proposed in Section 2 of HB 470,
we are concerned that empirical data, consistent with the proposed definition of “best evidence”
may not always be available or applicable to every situation. What is most compelling,
equitable, or least biased will vary from person to person and jurisdiction to jurisdiction, so we
believe the added requirements accomplish very little, other than creating another matter to be
argued over in the zoning process.

Section 3 of House Bill 470 proposes changes that will make it more difficult to establish zoning
or to update existing zoning codes, and in doing so, fails to recognize critical realities about
what zoning is, how zoning is used, and what zoning can do. Zoning is not just a restrictive tool.
Zoning is a tool that provides entitlements and thereby facilitates the much needed capital and
investment that is so critical to development. It is a tool that local governments use to be
proactive in accommodating, encouraging, and guiding stable, long-term growth. Private
developers rely on zoning when considering important investments, such as building new
residential neighborhoods or retail shopping centers. Making zoning authority more restrictive
will limit local government’s ability to be nimble and respond to the needs of the private sector
by making the development process more expensive and more time-consuming.
Zoning is also a tool that can be used to protect and stabilize private property values. Zoning
can limit adjacent incompatible uses that may negatively impact property values. Limiting local
government’s ability to respond to land use and development patterns via zoning has the
potential to generate instability and uncertainty for private property owners.
With the rapid population growth many of our communities are facing, the ability to effectively
plan for the future is paramount to accommodating growth, providing needed housing, and
preserving quality of life, and protecting property values. Our existing laws provide for adequate
public notice and opportunities for citizens to let their voices be heard in these processes.
There is very little to be gained by making the process to create a county planning board or
zoning district more cumbersome than it already is.
We respectfully ask you to oppose HB 470.

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SB 211: Revise 608 criteria regarding agriculture
oppose
LC0822
Steve Fitzpatrick  (R) SD 10
Referred to Committee
3/4/21

MAP is opposed to SB 211 because this bill is attempting to reverse a single jurisdiction’s
approach to subdivision review through changes to state law that affect all Montana
jurisdictions. The Montana Subdivision and Platting Act sets procedures for developing and
administering subdivision regulations. By design, the law gives the local governing body the
ability to prepare their regulations to address issues of concern and importance in their
community. The preparation of local regulations involves the public’s input at multiple points.
This bill reduces local control in the review of impacts of subdivisions and overturns local public
input which we see as being detrimental to the planning process.
When the state passes law to restrict local control of land use regulation, the law becomes more
bureaucratic, less flexible, less responsive to local issues, and less likely to provide the best
outcomes for the diverse concerns of Montana communities and their residents.
MAP believes local communities know what is best to address their local issues. Please oppose
SB 211.

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HB 395: Prohibit new zoning districts during a state of emergency
oppose
LC2794
Julie Dooling (R) HD 70
Tabled
3/1/2021

This last year has been both unique and challenging to say the least. Even in the face of a pandemic, the
Montana housing economy has experienced incredible growth and demand pressures that has drawn
national attention. We’re seeing low housing stock in many markets across the state, a high demand for
new housing units, and rapidly rising costs that are so inflated the market is becoming unaffordable for
many Montanans. Zoning plays a critical part in addressing the demand of housing by entitling property
for new uses such as housing.
If approved, SB 395 will undoubtedly cause harm to many communities. Our local governments who
were able to answer the call of developer’s and landowners over the last year should be commended.
The government’s ability to be resilient and continue on with business is essential to our citizens no
matter the circumstance. Without the ability to process and create new districts we fail to provide
services demanded from our landowners and developers.
We would like to make a few points regarding the bill itself.
The issues with 395 can be summarized by pointing out the following:
1. The reference to Zoning District is vague, it is unknown at this time whether this bill would only
affect new zoning districts placed on previously unzoned land, the creation of new districts in
already zoned land, or also apply or ordinary zone changes petitioned by landowners.
2. State of Emergencies are not just limited to pandemics, they can be flood related, wildfire
related or others. Regional environmental conditions should not dictate an entire states ability
to continue on with zoning applications and processes.
3. Many zone changes and map amendments have occurred over the last year, some have even
resulted in construction already occurring. It is estimated that nearly 6,000 new homes across
the state have been entitled through zoning. A retroactive date is arguably the most challenging
and dangerous part of the proposed bill. Properties that have obtained financing, are being
designed or already being constructed face consequences of becoming nonconforming which
can jeopardize financing and long-term viability of project that has already received its
entitlements.
4. And lastly, it is unclear that a need has been demonstrated to enact this legislation. Existing law
allows aggrieved citizens the right to protest the creation of new zoning districts and lays out a
process in which they are able to do so. This ability is unchanged by a state of emergency.

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