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68th Montana Legislative Session

SB 143: Allow a referendum to terminate citizen initiated zoning district
watch
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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SB 382: Create the Montana Land Use Planning Act
support
LC 1251
Forrest Mandeville (R) SD 29
Hearing - 02/23/23 (H) Local Gov. 3pm. Rm 472
3.15.23

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 Our laws are outdated, disconnected, and reactive.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 211: Revise the local subdivision review process
support
LC1387
Larry Brewster (R)SD44
Hearing - 03/17/2023 (S) Local Gov 3pm. Room 405.
3.14.23

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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HB 246: Allow for the zoning of tiny dwelling units
watch
LC1669
Scot Kerns (R) HD 23
Hearing-03/17/23 (S)Local Gov. 3pm. Rm 405
3.14.23

This bill adds language into the zoning enabling statutes to expressly allow tiny homes on foundations.  There is a reference to building codes in the language. We reached out to municipalities and found that there is only one jurisdiction that has a size restriction on homes that would preclude tiny homes from being built. In other words, most jurisdictions already allow tiny homes on foundations.

MAP is going to remain neutral and monitor the bill as it progresses.

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SB 142: Provide oversight of local impact fee laws
watch
LC0661
Keith Regier (R)SD3
Hearing - 03/16/23 (H) Local Gov. 3pm. Rm 472
3.15.23

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
Hearing - 03/23/23 (H) Local Gov. 3pm. Rm 472
3.15.23

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
Hearing - 03/21/23 (H) Local Gov. 3pm. Rm 472
3.15.23

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 152: Revise minor subdivision laws
support
LC0725
Forrest Mandeville (R)SD29
Hearing - 03/23/23 (H) Local Gov. 3pm. Rm 472
3.15.23

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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HB 299: Revise resolution and ordinance requirements re: land use regulation enforcement
support
LC1407
Jedediah Hinkle (R) HD 67
Hearing-03/20/23 (S)Local Gov. 3pm. Rm 405
3.14.23

The Montana Association of Planners supports HB 299 as drafted. HB 299 fixes language that was adopted into law through passage of HB 257 during the 2021 legislative session that some jurisdictions have interpreted as compromising their authority to enforce lawfully adopted zoning regulations in certain instances. It is our understanding that it was not Representative Hinkle’s intent to create this uncertainty with HB 257 and we thank him for his willingness to address these concerns through the introduction of HB 299.

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SB 130: Allow for a county consolidated land use board
support
LC0726
Forrest Mandeville (R)SD29
Hearing - 03/16/23 (H) Local Gov. 3pm. Rm 472
3.15.23

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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