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67th Montana Legislative Session

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
Sent to Enrolling
4/1/21

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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HB 292: Revise subdivision title insurance procedure
support
LC3127
Geraldine Custer (R) HD 39
Sent to Enrolling
4/1/21

MAP offers our support for HB 292. This simple change better aligns language in the Montana Code Annotated to industry terminology. Simple alignments between public and private processes, as this bill proposes, can prevent unnecessary delays in the subdivision approval process. For these reasons, we ask you to please support HB 292.

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SB 231: Revise exempt well laws for family transfer parcels
oppose
LC0763
Mark Blasdel (R) SD 4
Passed House Committee
4/1/2021

MAP is opposed to SB 231 because we do not believe specific zoning standards belong in the Montana Subdivision and Platting Act, and we do not believe the State of Montana should be imposing specific standards of zoning on local communities. We also believe the retroactive nature of the bill will have unintended consequences on parcels created through family transfer.
Adding specific zoning standards into the Montana Subdivision and Platting Act (MSPA) will further complicate an already complex law. The MSPA establishes the process and procedures in which property can be subdivided in the State of Montana. Chapter Two of Title 76 establishes the process and procedures for the establishment and administration of zoning regulations. Nowhere in the MSPA can you find specific zoning standards. Mixing specific zoning standards into the MSPA will further complicate and confuse the purpose of that act. A reference to the applicability of zoning regulations is already included in the exemptions section of the MSPA, and it is the ideal reference back to that chapter of law.
This bill not only confuses zoning and subdivision, but it also sets specific standards of zoning. Local control is a critical tenet of zoning. Local control ensures zoning regulations are tailored to a community’s individual needs and ensures that elected officials at the local level are accountable to zoning decisions. Chapter Two of Title 76 sets the process and procedures for administering and adopting zoning regulations. With rare exception does this chapter address specific standards. Those rare exceptions always have an objective public purpose related to the purpose of the act, like ensuring youth group homes are permitted in residential districts or ensuring compliance with federal communications laws. The specific zoning standards proposed in lines 18-22 on page 2 of this bill serve no identifiable or objective public purpose related to the public health, safety, or general welfare.
The retroactive nature of the bill will have unintended consequences on individuals who have created family transfer parcels in the past. If an individual created a family transfer in the past, then sold it within two years, they would be in violation of the law and subject to the $5,000 fine.
Chapters Two and Three in Title 76 are meant to guide process and procedure, not dictate local standards. Specific zoning standards should never be introduced in the MSPA. In the rare occasion a specific zoning standard is included in Chapter Two, it must have an objective public purpose related to the purpose of that Chapter. The Montana Association of Planners opposes the language in lines 18-22 of page 2 of the draft, and the retroactive nature of the bill.

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SB 135: Allow BCC to hold BOA appeal hearings de novo
watch
LC0313
Steve Fitzpatrick  (R) SD 10
Enrolling
4/1/21

A BILL FOR AN ACT ENTITLED: “AN ACT REVISING THE APPEAL PROCESS FOR COUNTY ZONING DECISIONS; CLARIFYING THAT AN APPEAL FROM A BOARD OF ADJUSTMENT TO A BOARD OF COUNTY COMMISSIONERS IS A DE NOVO REVIEW; AND AMENDING SECTION 76-2-227, MCA.“

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SB 174: Revise laws related to local subdivision review
oppose
LC2326
Greg Hertz (R) SD 6
Hearing
3/11/21 (H) Local Gov. Rm 472 3pm

MAP stands in opposition to SB 174 because we believe it introduces several provisions into the Subdivision and Platting Act that will be problematic for developers, landowners, and local governments alike.
Section 1:
It is common to attach conditions of approval to a subdivision in order to bring a proposal into compliance with development standards adopted by the local government. By restricting conditions of approval so narrowly, to only the criteria set forth in 76-3-608(3)(a) MCA (the so called “primary criteria”), local governments will be put in a position of having to unnecessarily deny subdivisions. This is not in anyone’s best interest.
Please note provisions exist in statute that exempt certain subdivisions from review under the primary criteria. SB 174 would mean that the governing body could not attach any conditions of approval in such instances. This would be unwise and leave developers unsure of what they need to do in order to obtain final subdivision approval.
The proposed language to constrain conditions of subdivision approval to “the least restrictive means to achieve the purpose or objective” is vague and has the potential to result in needless and expensive litigation. Applicants have the opportunity to review staff reports and proposed conditions of approval, which are public documents, and provide comment on proposed conditions if they think there is a less restrictive or better way to achieve the purpose or objective of the condition. In other words, due process already provided to applicants as part of the subdivision review process should address the underlying concern without need for this language.
Established case law also restricts the requirements that can be added through development exactions such as subdivision conditions of approval. Cases such as Nollan v. California Coastal Commission and Dolan v. City of Tigard set standards for conditions that have a nexus with identified impacts, and that are proportional to the scale of those impacts. We believe that these clear and established guidelines provide the necessary limits on government overreach in development review.
SB 174 formally inserts homeowners’ associations and their rules into the subdivision review process. Mixing a private organization, such as a homeowners’ association, with a local government review process has the potential to produce unpredictable results and is inadvisable.

Section 3:
The proposed amendments to 76-3-608(3)(a) MCA are potentially in conflict with the requirements for a growth policy established in 76-1-601 MCA, wherein a local government is already required to define and describe how they will evaluate impacts on the primary criteria. The proposed addition of “specific, documentable, and clearly defined” will create an additional burden on the applicant who bears the burden of proof to demonstrate they will not have an adverse impact on the primary criteria. If an applicant is unable to prove this in a manner that is specific, documentable, and clearly defined, local governments may be required to deny subdivision applications.
We believe that replacing the “agriculture” and “agricultural water user facilities” criteria with “active agricultural production” will harm farmers and ranchers, particularly adjacent property owners and facilities. If a pasture isn’t being grazed or a field isn’t planted at the time a subdivision is being considered, an applicant can claim it isn’t active. The same claim can be made if a project is reviewed in the winter when an irrigation ditch that is dry.
Section 5:
The retroactive applicability section of SB 174 applies to all subdivisions that were lawfully adopted since the inception of the Subdivision and Platting Act in 1973. The potential to reconsider, in some form, every subdivision approved in the Montana since 1973 has the potential to have huge implications on our established communities, and not just high-growth areas. The retroactive nature of this section also circumvents previous public process and established expectations for development.
For the reasons outlined above, we ask you to please oppose SB 174. The implications are too far reaching and will be felt by developers, landowners, and local governments alike.

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HB 302: Require county approval to relocate bison
watch
LC1109
Joshua Kassmier (R) HD 27
Passed Senate Committee
4/1/21

A BILL FOR AN ACT ENTITLED: “AN ACT REQUIRING AUTHORIZATION OF THE BOARD OF COUNTY COMMISSIONERS BEFORE WILD BUFFALO OR WILD BISON ARE RELEASED INTO A COUNTY; REQUIRING RELEASE OF WILD BUFFALO OR WILD BISON TO MEET CERTAIN CONDITIONS; AMENDING SECTIONS 7-1-111, 76-1-605, 81-2-120, AND 87-1-216, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.“

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SB 161: Allow subdivisions to qualify for an expedited review
support
LC1085
John Esp (R) SD 30
Enrolling
4/1/21

MAP Supports SB 161. We believe this expedited subdivision review process incentivizes sound community planning and home ownership in the locations where we want growth to occur. It does this by emphasizing the importance of all our planning tools, not just subdivision review.

Envision land use planning laws to look like a pyramid, with the base of the pyramid where you spend the most amount of time and effort, and the peak of the pyramid where you spend the least amount of time and effort. In many states, the base of the pyramid is your growth policy laws, followed by your zoning laws. You spend a lot of time thinking about how you want to grow in your growth policy, and then zoning is used to ensure growth happens as you planned it. Zoning is used to entitle most development, while subdivision is used to divide land.  If a development meets the growth policy and zoning, subdivision is a straightforward and sometimes simple process.

In Montana, that pyramid is upside down. Most of the emphasize is placed on subdivision. This is part of the reason why subdivision is complicated and unpredictable. Subdivision is a process of dividing land, not entitling all aspects of development that occur on it, but we try to make it that way.

This bill, in a limited capacity, changes that.

What this bill does is it places greater emphasis on good planning and zoning by deemphasizing some aspects of the subdivision review process. It encourages communities to write better growth policies, to consider how and where to grow. It encourages communities to use zoning as an entitlement tool, giving zoning some regulatory teeth in the subdivision process. If you are a developer, it encourages you to submit a proposal that meets your communities zoning and subdivision rules, because that is how you access this process.  You do what the community has asked of you, and you are rewarded.

In addition, it does this where we want growth to occur, in places with growth policies, zoning, water and sewer infrastructure, local schools, roads, jobs and services. It gives counties the ability to decide if they are ready or not to implement this tool.

Finally, we believe this bill demonstrates that there is common ground in land use planning law. That when we work together, we can find strategies that provide the best outcomes for our communities. Planners have the skills and experience to navigate policy and process, and MAP pledges to continue working with our partner organizations to find common ground and work to revise our land use planning statutes. With that, we urge a do pass on SB 161.

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HB 134: Single Family Zoning Preemption
oppose
0837
Rep. Danny Tenenbaum (D) HD 95
Tabled
2/11/2021

MAP stands in opposition to HB 134 because we believe state mandates for the content of local planning and zoning codes removes local control. Our membership certainly appreciates the relationship between zoning and affordable housing. Over the decades single-family only zoning became the predominate form of zoning and because of its prominence many communities have failed to build other types of housing their residents need today. Nonetheless MAP believes such decisions should be made at the local level. Many communities across the state are now looking at their zoning codes to find ways to diversify their housing stock and increase supply, including the elimination of single-family zoning only districts. In fact, some Montana cities and towns have already made this move.

The Montana Association of Planners wants to see the creation of a variety of housing options for our communities and residents. Therefore, we support the efforts of local jurisdictions to have their own conversations about single-family only zoning, but we do not believe state mandates that will rezone most Montana cities and towns is good policy.

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