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69th Montana Legislative Session

HB 378: Remove the restriction on inclusionary zoning
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LC3842
Rep. Powers
(H) Tabled in Committee
3/3/25

The bill would reverse the ban on inclusionary zoning. Two sessions ago, when inclusionary zoning was banned by the legislature, only two jurisdictions—Bozeman and Whitefish—were using this tool. Since then, the housing crisis has only worsened. There is a justifiable need for this tool in some communities in Montana. At this time, we are going to watch how this bill progresses.

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HB 389: Provide for setbacks for wind turbine generators
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LC1707
Rep. Ler
(H) Tabled in Committee
3/3/25

This bill would establish set backs from property lines and public roads. This is not a zoning bill, it would amend Title 75, but it would affect any jurisdiction that regulates wind turbines through zoning. We are going to keep an eye on who this bill progresses.

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SB 146: Creating the private property protection act
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LC0975
Senator Beard
(S) 2nd Reading Indefinitely Postponed
2/6/25

UPDATE: This bill was amended in Executive Action and passed out of committee. The gist of the amendment is it replaces “public health and safety” with “compelling government interest.” We have not reviewed the bill as amended at this time. For the time being, our position will remain opposed.

We are opposed to SB 146 and urge a “Do Not Pass”

SB 146 is a property rights bill that establishes a standard where plans, policies, regulations, and development approvals can only consider public health and safety in the decision making process. This standard is incredibly narrow and directly contradicts existing growth policy statutes, zoning laws, subdivision review criteria, and the framework of the Montana Land Use Planning Act. These contradictions will result in a litigious development review process and significantly impact decision-making as well as the private sector’s ability to secure entitlements.

It is important to highlight that this law will affect all aspects of our planning statutes, including development approvals. With the vague language in this bill, even permitted uses and administrative approvals could be subject to this new standard. For example, a permit for a duplex or an accessory dwelling unit (ADU), even if allowed under other aspects of the law, could face public health and safety challenges if neighbors argued that their property rights were affected. If the governing body or the courts find the proposal fails to meet the requirement of being “demonstrably necessary and narrowly tailored to fulfill a compelling governmental interest in public health or safety,” the permit could be denied or invalidated. It is crucial to remember that property rights extend to all property owners, including neighbors—not just the applicant.

Back to how the contradictions in statute created by this bill will impact the Montana Land Use Planning Act. The Montana Land Use Planning Act requires that the rules and regulations jurisdictions adopt be tied to their adopted land use plan. The permitting process for development applications is significantly simplified and, in many cases, administrative. This provides predictability and reduces risk for the development community. There is far less subjectivity—if you meet the rules, you get your permit.

The framework of the Montana Land Use Planning Act has gained national attention and is becoming a model for planning reform in this country. However, the litigious framework of SB 146 will undo the predictability that the Montana Land Use Planning Act creates by installing a subjective standard that every permit must meet.

Does this apartment building demonstrate that it is necessary and narrowly tailored to fulfill a compelling governmental interest in public health or safety? Or does it increase traffic on my neighborhood street? We guess the courts will decide.

 

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