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68th Montana Legislative Session

SB 268: Revise Laws Relating to Short Term Rentals
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LC0300
Greg Hertz (R)SD6
Hearing - 02/24/2023 (H) Judiciary 8:00 am. Room 137
3.23.23

UPDATE: This bill was amended largely for the better. The amendments clarify what a primary residence is, and fixes the notice issue in county zoning. It does not appear to fix the notice issues in municipal zoning. We haven” fully evaluated the amendments to determine if it changes our position.

This bill would prohibit using zoning or other powers to ban short term rentals (STR) in residential zoning districts. It also requires significant analysis on the impacts a zoning amendment (map or text) would have on STR be included in the legal notice regardless if the amendment is designed to affect STR or not.

We are very concerned about the notice requirements. This will dramatically increase the length and complexity of legal ads which does not benefit the public. It also greatly increases the costs of legal ads, which may or may not be passed onto the developer, and if not the developer then to the taxpayer.

We are also very concerned about short term rentals impact on housing supply and costs, especially in our communities where tourism is a major economic driver.

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SB 178: Generally revise cryptocurrency laws
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LC1083
Daniel Zolnikov (R) SD 22
Hearing - 03/24/23 (H) Business and Labor Rm 172
3.20.23

UPDATE: This bill was amended in committee to address most of our concerns. We are dropping our opposition.

This bill is designed to prevent local jurisdictions from prohibit cryptocurrency through zoning regulations or other ordinances. The concern is the language goes to far and prevents any changes to zoning in an “area” if a cryptocurrency is present.  Here is the language we are concerned about:

7-1-111 (28) any power to change the zoning of an area that contains an active digital asset mining business as defined in [section 1] or prevent a digital asset mining business from operating in an area zoned for industrial use.

This language is extremely problematic preventing any changes, text or otherwise, in a zoning district that has an active cryptocurrency business. This will be detrimental to other businesses looking to change how the zoning affects them, efforts to pass zoning reforms to include housing, or map revisions requested by landowners.

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SB 170: Allow for administrative minor subdivision process
support
LC0724
Forrest Mandeville (R)SD29
Hearing - 03/25/23 (H) Local Gov. 9am. Rm 472
3.24.23

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
support
LC 2022
Jeremy Trebas (R) SD 13
Hearing - 03/28/23 (H) Local Gov. 3pm. Rm 472
3.21.23

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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SB 379: Revise zoning laws
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LC 0590
Steve Fitzpatrick (R)SD10
Hearing - 03/28 (H) Local Gov. 3pm. Rm 472
3.21.23

UPDATE 3/3:

This was amended again on the Senate Floor to take out the Family Transfer portion, and there were additional amendments to the context of the zoning. It passed the 2nd reading by 7 votes and will almost certainly make transmittal.

UPDATE 2/28:

SB 379 proposes sweeping changes to Montana’s Land Use Planning statutes, and it was done behind closed doors, with no hearing, and no public comment. SB 379 takes language from two bills that were tabled in the House Local Government Committee (HB 553 and HB 337) and inserts them into a bill that had been tabled in the Senate. In addition, it inserts language from a bill that was never introduced (LC 2494) on family transfers.

SB 379 mandates a single maximum minimum lot size and a single setback for all residentially zoned districts in every city in the state of Montana. Every residential district in a city in the State of Montana will have a minimum lot size of 2,500 sq ft and 5-foot side yard setbacks. This circumvents the purpose and intent of growth policies, the document that local jurisdictions use to plan for and anticipate development where appropriate, by setting a state mandated density. The minimum lot size provision lacks exceptions for areas with public health and safety concerns like flood hazards and high wildfire risk, or for special areas like historic districts.

The bill also supersedes local bulk and dimensional requirements for ADU’s with poorly written, vague, and confusing language. Bulk and dimensional requirements include simple standards like setback and building height. They are measured objectively in feet. They are easy for the public to understand and plan their home projects around accordingly. The vague and confusing language in this bill that will supersede local zoning standards with language that will be hard for the public to decipher, will add subjectivity, and will serve to make projects for the average person more complicated and difficult.

Finally, the bill reworks the family transfer statues. This is troublesome for at least two reasons. First, the bill title is a zoning bill, and family transfers are in the subdivision statutes which is a different subject matter and different chapter in state law. This was done without public notice or an opportunity for comment. The second issue is the wisdom of vastly restricting local government’s abilities to manage family transfers, which are already widely abused. Family transfers do not go through review for their impacts, but they do go through review to determine if the transfer is an attempt at evading review of impacts. The bill keeps the requirement that a local government evaluate a family transfer for evasion of subdivision, but it doesn’t let the local government consider the context of the situation, making it very difficult to determine if there is an attempt to evade. The result will be more division of land with no evaluation for impacts to public health and safety, access, or other considerations.

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SB 301: Revise property laws related to lakeshore regulations
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LC2647
Greg Hertz (R)SD6
Hearing - 03/30/23 (H) Local Gov. 3pm. Rm 472
3.21.23

UPDATE: This bill was passed with amendments. We have only initially reviewed the amendment, but it does appear to say that illegal structures would not be grandfathered in. There is also an amendment to the section on ongoing repairs of non-conforming structures that may alleviate our concerns. We will review these amendments in greater depth and may change our position on this bill.

This bill would grandfather all structures within the Lakeshore Protection Zone as of January 1, 2023. We are reading the draft that even illegal structures would be grandfathered in, which is the reason for our position.

The Montana Association of Planners is opposed to SB 301, as written. SB 301 proposes to retroactively grandfather any existing structure within a lakeshore protection zone, constructed prior to January 1, 2023. We can agree with the premise of this bill that having a grandfathering provision is an important element of regulations; however, what can be grandfathered and the date such a provision takes effect should be based on local lakeshore regulations with a date deemed appropriate by the local governing body.
We therefore offer the following amendments to the bill in order to not prevent the local government reviewing authority for adopting a date certain for determining grandfather status.
Section 1, Line 21 – 23 …located within the lakeshore protection zone are considered to be grandfathered for the purpose of compliance with the regulations, if they were constructed prior to the adopted date of the applicable Lakeshore Protection Regulations.
Section 2, Line 26 – 27 For the purpose of this subsection, ongoing maintenance, remodeling, or minor modifications are permitted to the items set forth in subsection (1) if the improvements taking place during a 10-year period do not exceed a cumulative cost of $10,000.

The amendments provided would provide the the regulations are adopted under the authority of the State of Montana, 75-7-207, M.C.A., which requires local governing bodies to adopt regulations regarding the issuance or denial of permits for work in lakes within their jurisdiction, including land which is within twenty (20) horizontal feet of the perimeter of the lake, to maintain their legal mandates that ensure the laws as intended. This allows the local governing bodies to ensure their Lakeshore Protection Regulations remain valid, while providing additional grandfathered structures to remain intact within certain parameters.

Based on our concerns regarding the retroactivity provision and the resulting sanctioning of currently illegal activities, we urge do not pass as currently written.

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SB 331: Revise condo and townhouse exemptions
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LC0313
Greg Hertz (R) SD 6
Hearing - 04/04/23 (H) Local Gov. 3pm. Rm 472
3.3.23

UPDATE: The bill passed out of (S) Local Government with the amendment we were seeking. With this amendment, we have no additional concerns with this bill.

SB 331 is addressing an isolated issue of how a small number of jurisdictions process condominium and townhome exceptions.  We see an issue with specific language which could prevent the use of Form-based codes as a tool to reform local zoning regulations.
Traditional Euclidean Based Zoning which is used in most Montana cites and towns focuses on the separation of uses. This type of zoning is designed to prevent incompatible uses in the same areas of a community and has resulted in the overuse of single family only zoning in many communities. Form-based codes, however, are designed to allow the mix of uses and densities in the same area of a community. Three Montana cities and one county has adopted Form Based codes in a part off their jurisdiction, and more are working on incorporating this tool
The language in the draft bill is narrow and could unintentionally prohibit form-based codes. MAP has been made aware of a potential amendment which would address this concern. The amendment is:

(2)(b) the condominium, townhome, or townhouse proposal is in conformance with applicable local zoning regulations pertaining to land use, density, bulk and dimensional requirements, landscaping, and parking requirements when local zoning regulations are in effect.

We encourage the Committee support this amendment. We believe it would address our concerns without changing the intent of the bill.

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SB 407: Revise municipal zoning laws
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LC 1707
Shane A Morigeau (D) SD 48
Hearing - 04/11/23 (H) Local Gov. 3pm. Rm 472
3.21.23

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 319: Revise laws related to tracts of record
support
LC2495
Ellie Boldman (D) SD 45
Hearing - 04/21/23 (H) Local Gov. 3pm. Rm 472
3.21.23

This bill clarifies that existing tracks of record are expunged when a COS or subdivision plat is filed.  There was an amendment presented at the hearing that would have taken this simple bill and made it incredibly damaging. The amendment essentially said that a COS would not expunge the underline tracts, even if they were not shown, and it would apply retroactively. In other words, a parcel with 4 potential instruments of conveyance from 1908 that were not shown on a family transfer COS from 1988, would still be viable tracks, and if split by the family transfer, those splits would also be viable tracts. This would have  no doubt created thousand of tracts of record retroactively without going through a subdivision, or exemption review, or DEQ review. We were not present to testify at the hearing, but we did work with MACO to put MAP on the record as being opposed to the amendment. The amendment was not include in the bill that passed. We are going to support the bill as drafted and oppose any amendments.

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SB 143: Allow a referendum to terminate citizen initiated zoning district
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LC3562
John Esp (SD)30
Hearing - 03/21/23 (H) Local Gov. 3pm. Rm 472
3.3.23

Eliminates the current protest provisions in Part I zoning that have been deemed unconstitutional in Part II, and mimics the referendum provisions in Part II zoning.

MAP does not have any issues with this bill. At this time we’ve elected to direct our efforts to other legislation. We will continue to watch this bill progress.

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