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SB 245: Revise municipal zoning to allow multifamily and mixed use development
Daniel Zolnikov (R) SD 22
Hearing - 03/23/23 (H) Local Gov. 3pm. Rm 472

UPDATE: The amendments do not address any of the issues in our testimony below.

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.”

SB 467: Revise laws regarding local regulation of short-term rentals
LC 3191
Jeremy Trebas  (R) SD 13
Postponed Indefinitely

This one snuck in on us and we have not had time to thoroughly review it. On initial review, it will define a STR as residential, and prevent jurisdictions from prohibiting them. It is much cleaner than the other STR bill (SB 268). The downside is some gateway communities like West Glacier or Whitefish are being burdened by STR. For now, we are going watch the competing STR bills play out.

SB 486: Revise subdivision laws related to glamping
LC 4616
Pat Flowers (D) SD 32

We have mixed feelings about this bill. On one hand, these glamping campgrounds don’t really fit into Buildings for Lease or Rent, and they don’t really fit into spaces for lease or rent in the MSPA. So, jurisdictions can struggle to figure out what to do with them.  On the other hand, this gray area could easily be addressed by zoning for glamp grounds without having to make them go through a long and rather expensive processes of subdivision review. For the time being, we are not going to take a position on this bill, and watch what happens in the Senate Local Gov. Committee.

HB 553: Housing for Montana Families Act
LC 4238
Alice Buckley (D) HD 63

The Montana Association of Planners is opposed to HB 553 as presented. The bill preempts local zoning regulations on Accessory Dwelling Units (ADUs) with specific requirements that may not fit all communities in Montana. Many of these requirements for local regulations lack clarity, include unnecessary language, and inappropriate cross references. These issues with the bill as written introduces more confusion and lack of clarity that will complicate development review of ADUs across the state. MAP continues to be an advocate for improving consistency and clarity, as well as simplifying of our land use development regulations, which this bill will negatively impact.

Specifically, the bill includes the following unnecessary or complicating requirements:

  • Reference to Growth Policy Statutes: this requirement that Growth Policy’s cannot regulate ADUs is unnecessary and redundant leading to more legislative clutter rather than simplifying the process. MCA 76-1-605 already clearly states that a growth policy is not a regulatory document and does not confer any authority to regulate, including ADUs.
  • Confusing cross references & requirements: Sections 5 and 6 of the bill, amending County Zoning regulations, inappropriately references municipal zoning and creates opportunity for inconsistent interpretation. It is unclear how both counties and cities will implement these new requirements. The requirements for setback standards for ADUs at the in the bill are difficult to interpret as written; the lack of clarity will lead to greater inconsistency and application of the law across the state rather than the desired intention to streamline ADU development processes.
  • Size restrictions: Prohibition of ADU size restrictions runs contrary to standard definitions of “accessory” structures in most, if not all, zoning codes. For example, an ADU that is allowed to be the same size or greater than a principal dwelling is no longer accessory, it is a primary use, yet would only be subject to accessory use setbacks and building standards. We recommend setting a limit jurisdiction cannot go below for allowable square footage, and given typical garage size and other accessory structures that are most likely to house an ADU, suggest that 1,000 square feet is a more appropriate state-wide standard.

Many other zoning bills have been introduced that allow for increased infill and development where we have appropriate infrastructure and ability to serve. For instance, Senate Bill 323 that would allow broader multi-family unit types in residential zoning districts would allow for second units that are the same size or larger than the primary dwelling, eliminating the need for ADU designation. This would also allow for appropriate zoning regulations to apply rather than standards that are intended to apply to a structure that is intended to be subordinate in use on the parcel.

We respectfully request a “do not pass” on HB 553 unless amended to address our concerns relating to regulatory clarity, appropriate standards, and definitions of use in development codes.

HB 606: Revise laws related to home-based businesses
LC 1151
Jennifer Carlson (R) HD 69

The Montana Association of Planners is opposed to HB 606 as presented. Most county and
municipal zoning regulations allow for home occupations to take place in otherwise residential
districts provided that reasonable standards are met to ensure the home occupation is not
incompatible with surrounding residential uses and that the commercial use is secondary or
incidental to the primary residential use of the property. HB 606 prohibits many of the common-
sense home-occupation standards employed by local communities, and without sideboards like
these in place, we won’t have home occupations, just commercial businesses operating in
residential areas.
Home occupations can make valuable contributions to local economies, but they need to be
conducted such that they blend in with the surrounding properties, do not generate undue
impacts and burdens to the surrounding homeowners, or result in a reduction in value to the
surrounding neighborhood.

HB 483: Generally revise land survey laws
Ross H Fitzgerald (R) HD 17

The Montana Association of Planners is opposed to HB 483 as currently drafted. HB 483 is very similar to the historic subdivision exemption claim that was known as the “occasional sale”. This bill is labeled the “one-time split.” The occasional sale exemption was rescinded in the early 1990s due to the widespread use that essentially resulted in unreviewed subdivisions. HB 483 would in many respects revive this problematic exemption while taking minimal steps to address the issues that resulted in the occasional sale being removed from statute.

We have seen several bills already this session, many of which MAP supports, that if passed will make it much easier for landowners to divide land. SB 158 would significantly expanded opportunities for landowners to make use of the family transfer exemption. SB 131, which MAP supports, would establish a timeframe for review of subdivision exemption applications and prohibited local governments from attaching conditions of approval to exemptions. SB 152, which MAP supports, would increase the number of subdivisions that are considered “first minor” subdivisions and could be reviewed through a simplified process. SB 170, which is a bill MAP drafted and supports, would create an expedited and streamlined review process for minor subdivisions. Taken together these bills represent a significant opportunity for Montana landowners to more easily divide their land. MAP supports ideas to simplify the subdivision review process, but as currently drafted, HB 483 isn’t simplifying the process, it circumvents the process entirely and is a step too far.

Exemptions should apply to a very narrow set of circumstances so that they are the exception rather than the rule. The ease and likely widespread use of the proposed “one-time spilt” without any responsibility to mitigate issues such as public health and safety would make this the “go-to” tool to divide a piece of property. Montana is already seeing unprecedented development pressure and many communities are unable to keep up with the demands of growth. This bill as currently draft will only exacerbate this situation and ultimately increase the costs of development that will be passed on to Montana taxpayers.

While we strongly opposed the bill, the following protections should all be incorporated in the bill to mitigate its impacts, should the Committee advance it:

  • As we are hearing that there is a desire for this bill in the most rural parts of Montana, the applicability of the bill should be limited to low population counties;
  • HB 483 should only be an option in situations where the tract being divided through the one- time split is 80 acres or larger;
  • Like the current parameters for use of the family transfer exemption, the one-time split exemption should be limited to use by individuals (not businesses and corporations) with one time usage per claimant, per county; and
  • The remnant parcel and one-time split parcel should be prohibited from making use of the one-time split exemption (already included in the bill) or the family transfer exemption to further divide the tract.

In conclusion, we should look to the past and acknowledge the problems with the occasional sale that were recognized by the courts, attorney generals, and the legislature, and not repeat those mistakes. HB 483 is the wrong tool, at the wrong time, and will produce the wrong results for Montana. We respectfully request a “do not pass” on HB 483 unless amended to address many of our concerns.

HB 369: Require referendum to adopt growth policy
Marty Malone (R) HD 59

This bill would require a referendum to adopt or amend a growth policy.

The Montana Association of Planners is opposed to HB 369. HB 369 creates unnecessary bureaucracy and red tape not just affecting local government functions, but directly impacting the ability of communities and developers to respond to our growing housing crisis. Requiring a referendum on all new growth polices, amendments, and revisions, will create significant uncertainty in the planning process for citizens and for private development projects. It will also add cost to development by requiring additional hours of public administrator’s time.
Growth Policies have a broad role in the land use planning process. Their elements include transportation plans, infrastructure plans, neighborhood plans, park plans, or trail plans. They are used to establish coordination or cooperating agency status with federal land management agencies. Wildland Urban Interface plans and Emergency Response Plans are adopted as elements of a growth policy. A Growth Policy also sets the stage for appropriate zoning and development potential, which requires frequent updates to keep pace with development so that infrastructure and government personnel can expand to meet the needs of our fast-growing communities. All of these tools (transportation, infrastructure, neighborhood, parks and trails plans) would need to be placed on the ballot if this bill was to become law. Our highly populated counties, such as Yellowstone County, would be constantly voting on an amendment or revision to the growth policy.
Public participation and input are vitally important to the growth policy drafting and revision process, and the opportunities to participate in these processes has never been easier with the addition of various technology tools. In addition to traditional in-person events like open houses, public forums, and workshops, Planners in Montana are seeing huge increases in community engagement through online systems like Zoom and Teams. With increasing use of websites, online surveys, and online mapping tools, in addition to open houses and public meetings, the opportunity to provide quality input to inform a planning process is growing.
The value of the public process when drafting a growth policy is the quality of the comments, and how they reflect the interests and concerns of community members. If there is ever a question if the public input was adequate, the planning board and the governing body both have the option to re-open public comment on the document, and the governing body can always decide to put the growth policy up for a public vote.
There are safety nets already built into the process if a growth policy does not represent the public’s interests. Besides the role of the planning board or the elected officials have in vetting the document, the citizens in any jurisdiction can petition to place the growth policy on the ballot for a referendum. This safety net has been triggered in several communities, succeeding in the Bitterroot Valley.
The final flaw with HB 369 is how it will impact the development community. Anytime legislation creates red tape or bureaucracy in the land use planning or permitting process, that red tape or bureaucracy gets passed down to the development community. What is most problematic, is the development community relies on privately initiated growth policy amendments in their development plans. Private development interests apply for growth policy amendments with consistent frequency in communities across the state. These amendments are designed to increase the density or use of a development from what the current zoning would allow. These privately-initiated growth policy amendments would also need to go to the voters – the entire community, not just those in the vicinity of the development project. This would introduce significant risk and unnecessary delays, and we would see this practice come to a complete stop.

HB 337: Revise municipal zoning laws to prohibit certain minimum lot sizes
LC 1454
Katie Zolnikov (R) HD 45

This bill creates two very specific zoning standards, and applies them statewide. It sets minimum lot sizes and setbacks for every residential zoning district in every city in the state of Montana.  Montana cities are diverse – the issues and challenges vary from city to city, neighborhood to neighborhood, and even street to street.

We need solutions to increase housing supply. Montana is the 6th fastest growing state in the county, and in our state outdated zoning regulations can restrict housing supply. We support zoning reforms, both at the local level and at the state level. We absolutely do not question the benefits reducing minimum lot sizes or reducing setbacks can have in a community. But this bill creates very specific state-wide zoning standards lacking any consideration or evaluation of the local context. This is not the right approach to zoning reform.

We are always concerned about the loss of local decision making and the unintended consequences of adopting these very specific state-wide zoning standards. We are concerned these prescriptive approaches to zoning reform, while important to consider on their individual merits, would result in unintended consequences if required uniformly throughout the state, including challenges to public services and increased expense to taxpayers. We take the stance that the specific details of zoning reforms such as exact setbacks distance and exact building heights are best administered through local zoning efforts. Therefore, we suggest a solution that provides a blueprint for zoning reform with greater flexibility at the local level tied to the incentives. This approach will be more effective in addressing our housing challenges and avoiding the many unintended consequences of a one size fits all approach.

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