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SB 146, Revise Local Subdivision Review to Require Information Submitted by Governmental Entity to be Supported by Scientific Information – 76-3-608


Posted Date: 
January 24, 2013
Contact: 
Tara DePuy, MACo JPIA Land Use Attorney

Read the Bill:  HTML  |  PDF  |  Additional Information

UPDATE -- March 19, 2013 -- SB 23 was amended and then the amendments were struck by the Senate, so the version heard by the House was as heard by Senate Local Government Committee with the addition of the words “present and voting” in the super-majority vote to extend interim zoning for one year.  The bill went through Executive Action on March 7 and passed onto the House Floor on March 12, where it concurred on Second Reading, 60-40, and again on Third Reading, 58-38.  It was enrolled on March 15 and signed by the Senate President on March 19.

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This bill is a portion of HB 542 in 2011 session vetoed by Governor.  The bill requires that if a federal, state or local government submits written comment or an opinion regarding wildlife, wildlife habitat or the natural environment, the governmental entity shall provide the best available scientific evidence that supports the opinion and must disclose if government entity was involved in attempt to acquire interest in subdivision property.

This bill was sponsored by Senator Ed Buttrey.  The sponsor of the bill had amendments to the bill that amended out the word “local” thus alleviating this requirement on counties.  The sponsor also amended the bill to include that information must be supported by best available scientific evidence or a “published study”.  The issue raised by the Montana Association of Realtors is that in certain counties state agencies have appeared at the public hearing and made comments not supported by any data.  There was litigation in at least one case in which the county relied on the state agency comment.  Supporters of the bill included the Missoula Realtors, the Montana Building Industry, the Montana Association of Registered Land Surveyors, and the Montana Association of Counties.

Opponents included Fish Wildlife and Parks which is concerned that wildlife biologists may not be able to find scientific information that is site specific and that wildlife biologists are recognized as experts by the courts so their testimony should not have to be supported by best available scientific evidence.  They suggested that the subdivider should also have to provide the same scientific information.  The Montana Association of Planners also opposed the bill as it singles out wildlife agencies and that the requirement will create a debate as to what is the best scientific information for counties.  Smart Growth opposed the bill on the basis that the local government will be put in the position of having to decide if the evidence is the best available scientific information.  The Montana Audubon opposed as the bill includes federal agencies which the state cannot regulate, there may not always be best available scientific information and the bill will create legal issues for local governments.  The City of Missoula and Trout Unlimited also opposed.

Questions from the committee includes asking for specific examples where state agencies had provided data not supported by science, why the federal agencies were includes in the bill, and the current subdivision process for agency comment.

Currently counties must evaluate all information provided to them in a subdivision review process to determine whether it is reliable and credible and make appropriate findings. This includes scientific information which sometimes is presented by the developer, state or federal agencies and opponents.

Additional Information: 
  • Heard before Senate Local Government on January 23, 2013
  • Heard before House Local Government on March 7, 2013
Tara DePuy | 406.223.1803 | attorney@riverworks.net