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68th Montana Legislative Session

SB 143: Allow a referendum to terminate citizen initiated zoning district
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LC3562
John Esp (SD)30
Signed By Governor
7.1.23

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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SB 142: Provide oversight of local impact fee laws
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LC0661
Keith Regier (R)SD3
Signed By Governor
5.2.23

POSITION CHANGE 2/3/23

As amended, this bill clarifies how impact fees are collected and programmed. Original bill language that would significantly impact how fees are administered and legal liability for was removed. Impact fees remain tightly regulated by current state law, and the changes as currently written adds the requirement that fees collected for a public facility remain in a fund dedicated to that facility and cannot be transferred. This is a much improved bill that was transmitted to the House.

The Montana Association of Planners are continuing to watch SB 142.

Amendments are now available to review (1/25).

PREVIOUS POSITION

This bill makes significant changes to how impact fees are administered. It could potentially reduce the amount of money communities have to build projects. It will impact planners ability to implement plans through infrastructure improvements. Infrastructure financing, is a major component of a local government’s ability to increase housing supply through the free market.

The Montana Association of Planners are opposed to SB 142. Impact fees are already tightly regulated, transparent, and require oversight by a public advisory committee at the local level. The additional regulations will create unnecessary costs and burdens on local communities and will shift the burden of infrastructure needed to support new growth onto existing property owners.

For example, the additional requirements for state-reviewed plans, third-party consultants, project applications, and limitations on funding all create impediments for a successful, efficient impact fee program. We believe the proposed changes to regulation of impact fees will result in less public infrastructure support, additional cost to existing residents and home owners, and increased burden on already limited local governments.

Amendments are now available to review (1/25).

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SB 131: Revise exempt subdivision review timelines
support
LC0729
Forrest Mandeville (R)SD29
Signed By Governor
5.3.23

This bill would require a 20-working day timeframe to process an exemption. The clock would start at the receipt of a complete application and fee. A complete application is intended to include surveyor review and errors and omissions.  The bill will also prevent local governments from requiring conditions of approval for exemptions.

MAP’s understanding is this bill is addressing issues where exemptions take many months to process and local governments require conditions or approval. While there needs to be sensitivity to staffing issues that may lead to delays, we believe a defined time frame to review these often simple requests would be appropriate.

In our opinion, the review of exemption applications under the existing law is to determine whether a claimant is attempting to evade subdivisions review. It is not an opportunity for local governments to review the exemption for impacts and require conditions of approval to mitigate those impacts. SB 131 brings clarity to this matter and is beneficial in that regard.

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SB 158: Revise family transfer law
oppose
LC2975
Jason W Ellsworth (R) SD 43
Signed By Governor
5.3.23

This bill would allow family transfers in platted subdivisions and allows family transfers outside of platted subdivisions to be exempt from minimum lot sizes of zoning regulations if the tracks are 5 acres or greater.  It allows family transfers to a spouse. It also allows a jurisdiction to place a requirement that the family transfer not be sold within 2 years.

The Montana Association of Planners is opposed to SB 158 as drafted. Montana is currently one of the fastest growing states in the nation, and as such, needs to address challenges associated with growth and attainable housing. As we consider possible solutions to these challenges, we are obligated to ensure that solutions don’t come at the expense of public health and safety.

Subdivision and zoning regulations are the two primary tools that local governments in Montana use to ensure basic public health and safety standards are addressed in new development. Family transfers have a legitimate purpose, but our member’s observe frequent abuse of this exemption across the state. As currently authorized under Montana law, family transfers are exempt from the public health and safety considerations of subdivision review, but zoning still applies. This bill will incentivize further abuse of the family transfer exemption by exacerbating additional exemptions of certain zoning standards. The Montana Association of Planners respectfully requests amendments to address the following concerns:

As the profession tasked with administering this statute, it is unclear to planners what the language included on page 2, line 25 actually means – who makes this determination and according to what criteria? We suggest replacing the language that currently reads “creates parcels of a size allowed within the subdivision; and” with language that reads “a restriction or requirement on the original platted lot or original unplatted parcel continues to apply; and”.

The language on page 3, lines 1-3 is concerning to our members for a couple of reasons. First, we believe that family transfers, like all other exempt divisions under 76-3-207 MCA, should be required to comply with zoning. If citizens in a specific community believe that family transfers should be exempt from lot size or density requirements of a zoning regulation, that is something that can be addressed at the county or municipal level through an amendment to their specific zoning regulation text, but it is not an appropriate standard to impose statewide. Second, the “is allowed” language on lines 1-2 is interpreted by MAP as if the local government must approve the family transfer even if they determine it is evasion of subdivision review as provided in 76-3-207(1). To address these concerns, our preference would be to strike subsection (c).

This bill passed out of committee with the amendment we asked for that conditions of approval continue to apply, but the amendment that all family transfers must meet zoning was not included.

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SB 178: Generally revise cryptocurrency laws
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LC1083
Daniel Zolnikov (R) SD 22
Signed By Governor
7.1.23

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 152: Revise minor subdivision laws
support
LC0725
Forrest Mandeville (R)SD29
Signed By Governor
5.3.23

This bill would remove the reference to 1973 in minor subdivisions meaning that any subdivision of 5 lots or less on a tract of record would be a first minor. It would not affect the ability of a local government to adopt standards for subsequent minors.

The Montana Association of Planners are offering our support for SB 152. For practitioners that have to work with this statute, the existing statutory language has been subject to various interpretations, for example, whether to count subdivision exemptions like boundary relocations that do not create an additional tract of land towards the five parcels referenced in the statute.
We believe the proposed changes will result in a clearer standard and make the Subdivision and Platting Act easier to understand and administer.

There are amendments available to change the date from 1973 to 2003, rather then drop the date entirely.

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SB 130: Allow for a county consolidated land use board
support
LC0726
Forrest Mandeville (R)SD29
Signed By Governor
5.3.23

Allows counties to consolidate planning boards, zoning commissions, and BOA into one board. The bill does not include Part I zoning commissions. Amendments made in the Senate included cities.

The Montana Association of Planners are offering our support for Senate Bill 130 and the associated amendments that expands the bills’ scope to include cities, counties, and consolidated city-counties. Jurisdictions across Montana, both large and small, struggle with finding citizen volunteers to sit on the variety of boards that are required in state statute. By consolidating the boards used in the development entitlement process, jurisdictions will have better success in finding volunteers to serve. By encouraging but not mandating the consolidation, it will also provide for efficiencies for the needs of each community. For these reasons, we ask you to please pass Senate Bill 130.

An important note for implementation if this bill becomes law. As a planner, if you are choosing to consolidate boards into one board, you will need to ensure that the bylaws for the consolidated board clearly define when the board has decision making authority, or when it only is making a recommendation. You should also include those  distinctions in board member trainings and orientations.

 

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SB 301: Revise property laws related to lakeshore regulations
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LC2647
Greg Hertz (R)SD6
Vetoed By Governor
7.1.23

UPDATE – The bill was vetoed by the Governor. As of 7.1.23, the bill is probably dead.

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
Signed By Governor
7.1.23

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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HB 211: Revise the local subdivision review process
support
LC1387
Larry Brewster (R)SD44
Signed By Governor
4.25.23

This bill is doing three things related to subdivisions. It effects:

  1. How to handle new information and subsequent hearings (76-3-615)
  2. When a hearing is needed for final plats in phased subdivisions (76-3-617)
  3. How to handle variances during an expedited review (76-3-623)

76–3-615 Subsequent hearings

This change focuses specifically how to handle new information.  The changes to this section would expand the circumstances in which new information would not trigger a subsequent hearing, to include changes to the design of the subdivision do not materially impact the analysis of potentially significant adverse impacts. If new information results in a material change affecting a proposed finding of fact or a proposed condition, it would trigger a subsequent hearing.

76-3-617 Phased subdivisions

The changes to this section focus on what to do when phases come in for final plat approval. It clarifies that a public hearing is not needed if a phase comes in within 5 years of the preliminary plat approval.  If also clarifies that when a phase does require a public hearing, that the governing body can amend or impose conditions when new information or changes in circumstances trigger the need for mitigation. Both of these changes are to clarify the original intent of the phasing bill.

76-3-623 Expedited review

Last session a process was created for expedited review of certain subdivisions. If a subdivision needed a variance from the subdivision design standards, it would not qualify. The feedback Montana Association of Realtors collected was most subdivisions request a variance to one or more standards. Therefore, this process was not being used. This proposal would allow for variance requests. If a variance was requested, it would extend the review period.  There are two other minor changes, the first would expand the use of this bill in counties to expand the types of water and sewer system that would qualify, and it would clarify that this process is required in cities, but not in counties, regardless if the local subdivision regulations include the process.

Our position:

The Montana Association of Planners are offering our support for House Bill 211. We believe the changes to address new information and subsequent hearings during the preliminary plat review process will allow greater flexibility for both the applicant and the local government reviewing the applications.

The changes to timelines for final plats in phased subdivisions primarily clarifies a gray area in the existing statute, and we support clarifying the language. There are two items in the amendments to 76-3-617 we’d like the Local Government Committee to be aware of in the case amendments are being considered. The timeframe of 5 years is inconsistent with final plat review in 76-3-616, which gives “normal” subdivisions 3 years. We believe consistency is preferable.
The second item is in 76-3-617(4) would be clearer if it provided a citation to the statute it is referencing (our changes in bold):

The governing body may amend or impose additional conditions of approval only if it determines, based on a review of the primary criteria in 76-3-608(3)(a), that the existing conditions of approval are inadequate to mitigate the potentially significant adverse impacts identified during the original review based on changed circumstances.

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