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68th Montana Legislative Session

HJ 21: Interim study of aggregated tracts of land
watch
LC 1388
Jill Cohenour (D) HB 84
Died in Process
7.1.23

This interim study will examine the tracts of record issue that was raised in SB 319, which was tabled by the House Local Government Committee. The Montana Association of Planners is listed as a participant in the Interim Committee.

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SJ 21: Interim study to review the Land Use Planning Act
support
LC 1255
Forrest Mandeville (R)SD29
Died in Process
7.1.23

This bill will create an interim committee to evaluate SB 382: The Montana Land Use Planning Act. SB 382 was seen by MAP as a starting point, and there is still work to be done to refine the bill. If SB 382 becomes law, and SJ 21 passes, an interim committee will be created to address issues that come up as the new law is implemented, and make necessary changes in the next session. The MAP Legislative Committee was aware SJ 21 was going to be introduced, but we have not yet evaluated the bill.

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SB 245: Revise municipal zoning to allow multifamily and mixed use development
watch
LC0624
Daniel Zolnikov (R) SD 22
Signed By Governor
7.1.23

UPDATE: The motion on the Senate Floor to concur the amendments made in the house failed. This does not mean this bill is dead. In fact, it opens the opportunity for a Conference Committee or a Free Conference Committee on the bill. It is also possible the original sponsor didn’t like the amendments made in the House, and will let this bill die, and add language to another bill that is still alive (Watch SB 407 for this scenario).

UPDATE: Significant amendment were made to the bill in the House Local Government Committee that address most of our concerns. As a result we are changing our position from Opposed to Watch.

The Montana Association of Planners supports the modernization of state planning laws to ensure that state enabling statutes for zoning promote local planning efforts and provide market-rate housing resources to solve our most pressing affordability challenges. State involvement and resources are needed to ensure consistency and universal participation among municipalities.

While challenging to confront, and ultimately, amend or dismantle exclusionary zoning, rules, and practices, state reform is necessary to modernizing zoning. Legislation is necessary that establishes directives, objectives, or benchmarks for local jurisdictions to incorporate into ordinances, policies, and incentives to facilitate a range of housing types and densities and that serve a diversity of housing needs. It is critical, that modernization of local zoning ordinances to increase housing production takes local context and conditions into account.

While the topic of modernization of state planning laws to address a diversity of housing needs is relatively new to the state level in Montana, it is not new in the national context, and it is not new at the local levels. There are many strong and successful examples in other states that ensures the consistency and universal participation among municipalities while considering local context and conditions. Senate Bill 245, however, is not building upon those lessons of success, it is in fact, it is a misguided attempt to address a significant issue.

While we discuss the policy of zoning reform at the state level, it is important to recognize that our membership is in fact leading this conversation at the local level. For example, Billings and Helena have already completed significant zoning reforms that facilitate a range of housing types and densities, and significant revisions are underway in Butte, Hamilton and Missoula. Our organization has also been active in conversations at the state level as an active member of the Land Use Working Group, a consortium of local government and development organizations. This group has produced a draft bill that includes zoning reforms that are comprehensive, establish directives, yet acknowledges local context and conditions.

Senate bill 245 mixes a general directive with very specific requirements. The general directive, found in 76-2-304 (3)(a), reflects the type of zoning reforms and modernization efforts that have been successful in other states:

(3) (a) In a municipality that is designated as an urban area by the United States census bureau 28 with a population over 7,000 as of the most recent census, the city council or other legislative body of the municipality shall allow as a permitted use multifamily housing or mixed-use developments that include multifamily housing on a parcel or lot that is:

(i) currently serviced by both a municipal water system and a municipal sewer system; and

(ii) located in a zone where office, retail, or parking is a principally permitted use.

The bill goes beyond reforms that have proven to be effective, into specific zoning requirements that will prove very problematic, are not necessary to ensure consistency and universal participation among municipalities, and are not necessary to achieve the ultimate goal of producing a range of housing types and densities that serve a diversity of housing needs.

Cities and towns are complex, there is an interrelatedness of decisions that planners analyze and consider when drafting specific zoning standards. Therefore, writing specific zoning standards into state law is not best practice and not supportable by our organization. For example:

76-2-304 (3)(b)(ii) requires that the highest building height in a community be applied throughout the entire community. Central Business Districts, or the zoning typically applied in a downtown area, do not have building height restrictions and if they do, they are typically significantly higher than the rest of the community, 120 feet for example. Taller buildings require greater water pressure for fire fighting that might not be available universally throughout a community. In addition, there are significant livability and compatibility conflicts with 120-foot buildings being allowed by right in a traditional neighborhood. This strategy is not how you incorporate missing middle housing or greater density into neighborhoods.

76-2-304 (3)(b)(ii) requires all jurisdictions allow 40-foot buildings. Are all jurisdictions affected by this bill equipped with the fire equipment and trained firefighters necessary for taller buildings? If not, how will this affect fire insurance ratings for the community?

76-2-304(3)(b)(iii) requires that the minimum setback for multi-family housing cannot be greater than the smallest setback in the entire community. Again, Central Business Districts typically do not have any setbacks, buildings can be built right up against an existing building. This is very common in cities small and large, from Miles City to Missoula. This again will result in significant livability and compatibility conflicts and is not how you incorporate missing middle housing or greater density into neighborhoods. It also presents public safely conflicts with existing buildings as the building code requirements are different in zero lot line buildings and the existing buildings will not meet those codes.

76-2-304(3)(b)(iv) will ban a city from requiring any off-street parking for multi-family units. Parking reform is a very important topic, but not all communities are prepared to eliminate parking requirements. What the proponents will not mention but is necessary to successfully eliminate parking requirements, is that eliminating parking requirements is always accompanied by creating parking management systems and increasing enforcement. Except in major cities, eliminating parking requirements does not make cars disappear, it shifts where people park from the private property to the public streets. Larger communities in Montana, like Helena, Billings, Bozeman, or Missoula have parking commissions, parking management strategies, and staff that who enforce parking requirements. Most Montana communities affected by this bill do not. Without these systems in place, parking will be enforced by the local police department who will not make it a priority. While some communities effected by this bill have the framework in place to eliminate parking requirements, most do not, and this bill will force communities to create systems at the expense of local taxpayers. The increase in presence of parking enforcement officers and new parking regulations will not be well received in many communities.

This bill creates a general directive for cites to follow that will facilitate a range of housing types and densities. This simple directive is similar to reform efforts taken in other states and included by the Working Group to ensure participation among municipalities. However, it goes too far with specific zoning standards that do not take into account the wide diversity of circumstances within Montana cities. It raises many questions about impacts and issues that can only be analyzed community by community. Specifics, like this bill is proposing, are best left for revisions at the local level. We urge a vote of “do not pass.”

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SB 407: Revise municipal zoning laws
watch
LC 1707
Shane A Morigeau (D) SD 48
Signed By Governor
7.1.23

UPDATE: The Senate failed to concur amendments made in the House and a Free Conference Committee was appointed. The Free Conference Committee can make any amendments it wants to the bill within the first line of the long title. That line is “An Act Revising Municipal Zoning Laws.”  This right now is the bill to watch.

This is a fairly simple bill, but that might be the problem with it, as it not necessarily a simple issue. Here is what the bill says:

“When reviewing an application for a permit or variance, the determination of compliance with local design standards as provided in subsection (5) must be conducted solely by employees of the municipality, and the municipality may not require review by an external board.”

The first potential issue, and we are not entirely clear if this is an issue or not, is if a local jurisdiction can allow for an appeals process so the decision of the employee can go to the governing body or other entity and not directly to district court.

The second potential issue, and again we are not sure if this is an issue, is many jurisdictions use contract planners and don’t directly employee planners, would a contract planner be considered an “employee?”

At this time, we are not going to take a position on this bill, and try to find the answers to these questions.

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SB 382: Create the Montana Land Use Planning Act
support
LC 1251
Forrest Mandeville (R) SD 29
Signed By Governor
7.1.23

UPDATE: We are waiting on the Senate to concur the amendments made in the house.

AKA the Working Group Bill, the Montana Land Use Planning Act is a complete rework and combining of the growth policy statutes, zoning statutes, and subdivision statutes into one new act applicable to Montanan’s 7 largest counties and the cities within them. Other jurisdictions could “opt in” to this new system.  The Montana Association of Planners is one of the main authors of this bill, with the Montana League of Cities and Towns, the Montana Association of Realtors, and the Montanan Association of Builders.

The Montana Association of Planners is in support of the Montana Land Use Planning Act (SB 382) a modernization of our land use planning enabling statues designed to address the most pressing land use issues and housing challenges that we face in our state.

A modernization of our land use planning statutes is absolutely necessary. Montana is currently the 6th fastest growing state in the country. The cost of housing is skyrocketing. Our communities cannot keep up with the flood of growth and impacts stemming from the change that is occurring. No one is happy with the lack of housing, the battles over development, and the sense of always being behind the curve. There isn’t a quick fix or a simple bill that will address these problems because the root of the problem lies within our enabling framework. Our laws are outdated, disconnected, and reactive. The current framework is failing our development community and failing our public. There needs to be a systematic change, and that is what this Act offers.

The primary purpose of planning enabling statutes is to facilitate development in our communities and the current statues are failing to provide a consistent process. State laws direct communities to engage their public, review their capacities, and make a plan for how they will accommodate growth. These plans are then implemented through entitlement processes established in zoning and subdivision regulations. These three pillars together are the foundation for land use planning enabling statutes across the county. Our existing planning statutes follow this basic framework spread across three chapters of the MCA; growth policies, zoning, and subdivision.

From the perspective of a community member or a developer, the entitlement process should appear connected and logical. This is the start of where our enabling statutes are failing the development community. Our three pillars, growth policies, zoning, and subdivision statutes, do not require the same things. A growth policy is required to consider one set of criteria.  Zoning regulations or amendments consider a wholly different set of criteria. Subsequently, the subdivision regulations have state mandated review criteria that are completely different than what is required in a growth policy or in zoning. In simpler terms, a community member or developer trying to navigate this process must deal with policies and regulations that each look at different information with very little connection to each other. A development could be compliant with the growth policy, but then not be able to meet the zoning criteria established in state law or be able to meet the growth policy and zoning regulations but not the subdivision criteria established in state law. There is ultimately little consistency or predictability to the process.

The current enabling statutes are also failing our communities. As one of the fastest growing states in the country our planning statutes are designed to be reactive to development, not proactive. We don’t adequately plan for and anticipate community growth and change in our planning documents. Instead, we react to development as it is proposed, analyzing impacts on a case-by-case basis, and determine appropriateness in silos. Much of this reactive work can be done through proactive planning analysis, which in turn will simplify development review and keep the interrelatedness of decision-making in mind.

Our growth policy statutes provide very little guidance on the type of and level of analysis that is necessary to address growth and does not require the community to follow through with any of the recommendations. For example, a growth policy is required to analyze housing, but there are not requirements in growth policy statutes for how housing needs should be analyzed and addressed. What the analysis looks, and how in depth the analysis is, is at the full discretion of the governing body. Furthermore, a community might identify in their growth policy a need to amend their zoning to provide more housing, but there are no implementation requirements in state statute to require follow through with the necessary actions to meet this need.  We’ve heard many times this session that the reason for the numerous proposed zoning bills is because communities are not following through to address our housing challenges, but these zoning bills don’t address why communities aren’t following through. This Act seeks to facilitate better analysis of community needs and requires communities implement their plans.

The Montana Land Use Planning Act is proposing a shift to a proactive framework designed to address our greatest challenges. The Act will provide greater emphasis and analysis on comprehensive planning, requiring that entitlements be provided through zoning, and result in significant simplifications to the development review process without restricting local decision making. It requires that communities understand their housing needs and align their approval processes to ensure they are meeting that demand. It creates a direct connection between the growth policy, the zoning regulations and subdivision regulations. If a development is compliant with the regulations, it is compliant with the growth policy. There should be limited need for additional analysis. The Act includes a suite of zoning reforms to ensure jurisdictions are meeting housing demands, while allowing the consideration of local conditions and context. The intent of the Act is to create a more predictable process for the development community and to ensure development is happening where the community has planned for it and can accommodate it.

The Montana Land Use Planning Act involved local representatives of cities and counties, planners, developers, builders, surveyors, realtors, and elected officials. The Montana Association of Planners is actively involved in this long process that produced the draft you see today. We are in support of the draft in front of you but recognize this Act as a work in progress. We very much look forward to being a leader in the discussions on amendments and improvements. This Act is not complete, and over time will need to be adjusted, but the current system has failed. The choice is clear, we need this change. We urge a “do pass” on the Montana Land Use Planning Act.

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HB 874: Revise examination fees for exempt divisions of land
watch
LC 1250
Larry Brewster (R)SD44
Signed By Governor
7.1.23

UPDATE: The bill passed the Senate Local Government Committee without amendments. This lessons the chance that the bill will be amended to include the family transfer language.

This bill will change the language on fees for exemptions. It originally proposed the fees could be related to the actual costs, but was amended from actual costs to $400 in the House. We are watching this bill because the title of HB 874 could allow significant amendments. Our specific concern is the Senate Local Government Committee already tried to attach a family transfer bill (LC2494.

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HB 914: Revise local government laws
watch
LC 2628
Katie Zolnikov (R) HD 45
Died in Process
7.1.23

UPDATE: This bill has a very general title, which is inviting a ton of amendments. The most recent version doesn’t make many changes to planning statutes, but this bill is one of the remaining bills to watch in the final weeks of the session.

This bill makes some very simple changes to growth policy statues and to municipal zoning statutes.  We believe it might be to address a single issue in a jurisdiction, but don’t know for sure. We haven’t had a chance to discuss the bill as a committee yet.

The bill was amended in Committee to clarify that a residential use of property is considered a legal non-conforming use if residential is not allowed when the use is annexed.

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SB 528: Revise zoning laws related to ADUs
watch
LC 4384
Greg Hertz (R)SD6
Signed By Governor
7.1.23

UPDATE: This ADU bill was tabled in (H) Local Gov, and revived, amended and passed committee.

Another ADU bill. This one is only for municipalities. It has a fee attached so it came in as revenue bill. It is a lot less prescriptive then the ADU standards in SB 379. We reviewed this bill on Friday 3/25 right after it was introduced and are generally ok with it. We are not going to take a position.

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SB 170: Allow for administrative minor subdivision process
support
LC0724
Forrest Mandeville (R)SD29
Signed By Governor
7.1.23

This is a Montana Association of Planners bill drafted by and approved by our Board of Directors. If passed into law, this bill will create an administrative review process for qualified minor subdivisions (both first and subsequent minors). To qualify, a subdivision must have access to public sewer and water, be on an existing road network, and be in areas with zoning. The review process would be simplified. All locally adopted subdivision regulations and zoning regulations would still apply. Appeals to an administrative decision would go to the governing body.

Why is MAP proposing this bill?

At the 67th Legislative Session, the House Local Government Committee directed the organizations that advocate on planning policy to “propose solutions” rather than just fight change. The MAP Board has been focused on finding solutions the organization can support. The MAP Board believes this bill will reduce unnecessary process for the simplest and least impactful of subdivisions we see in our jurisdictions.  The sideboards of the bill will protect communities from unintended impacts.

What will this bill do?

  • It will simplify the review process for small subdivisions with few potential impacts providing immediate opportunities to address our state’s escalating growth rates and housing challenges.
  • It will provide relief in small towns, our larger cities, and in some areas of our larger counties.
  • The sideboards will direct the use of this tool to areas where growth is planned for and anticipated, and in areas where public investments such as sewer, water and roads have been made to accommodate growth.
  • It demonstrates that planners are looking to address our challenges, and that good planning isn’t a cause of our problems, but a solution.

Amendments were made to the bill on 1/26 to address some of the comments raised at the hearing.

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SB 323: Allow for duplex, triplex, and fourplex housing in city zoning
watch
LC 2022
Jeremy Trebas (R) SD 13
Signed By Governor
7.1.23

UPDATE: The bill was amended in the House Local Government Committee. The bill now would require cities over 5,000 to allow duplexes anywhere single family residences are permitted.

The Montana Association of Planners supports the modernization of state planning laws to ensure that state enabling statutes for zoning promote local planning efforts and provide market-rate housing resources to solve our most pressing affordability challenges. State involvement and resources are needed to ensure consistency and universal participation among municipalities.

While challenging to confront, and ultimately, amend or dismantle exclusionary zoning, rules, and practices, state reform is necessary to modernizing zoning. Legislation is necessary that establishes directives, objectives, or benchmarks for local jurisdictions to incorporate into ordinances, policies, and incentives to facilitate a range of housing types and densities and that serve a diversity of housing needs. It is critical, that modernization of local zoning ordinances to increase housing production takes local context and conditions into account.

We believe SB 323 sets the directive for municipalities to diversify housing types without the specific directives that ignore the complexity of communities across Montana.   This simple directive is similar to reform efforts taken in other states and included by the Working Group legislation to ensure participation among municipalities.

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