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SB 23, Revise Interim Zoning for County Imposed/Part 2 Zoning – 76-2-206


Posted Date: 
January 14, 2013
Contact: 
Tara DePuy, MACo JPIA Land Use Attorney

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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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PREVIOUS POST -- January 14, 2013 --  Identical to HB 366 in 2011 session opposed by MACo and vetoed by the Governor.  The bill changes when interim zoning can be used, limits the initial term of interim zoning to 182 days and expands the process to be followed to extend interim zoning for one year, including requiring a super-majority vote of a county commission to extend interim zoning.  A study or investigation must be started within 30 days of adopting interim zoning and finished before the public hearing to extend interim zoning. 

The bill was requested by the Montana Association of Realtors (MARs) and sponsored by Senator Matt Rosendale.  The sponsor of the bill stated that the bill improves the interim zoning process and that the use of interim zoning for an emergency was being manipulated by counties.  The example given by the MARs was that interim zoning could be used to require bike paths in subdivisions.  In general there was confusion about the difference between the use of the interim zoning process and the subdivision process and the fact that interim zoning can only be used in Part 2/county imposed zoning; not Part 1/citizen initiated zoning.

Other associations supporting the bill included the Montana Building Industry (who gave an example in Lewis and Clark County where a 100 lot subdivision was stopped due to interim zoning which cost the developer hundreds of thousands of dollars in loan carrying costs before the interim zoning expired and stated that the Missoula Transportation Plan, a thirty some page document, could be used as an emergency for interim zoning); the United Property Owners of Montana who stated that interim zoning is used to abuse private property rights; the Montana Contractors Association; Plum Creek; The Great Falls Chamber of Commerce and Knife River Co.  MACo testimony was that county commissioners did not object to the reduction of interim zoning to 182 days, to the added notice provisions for extending interim zoning and to the super-majority vote required to extend interim zoning for one year.

Opponents included Lewis and Clark County who does not believe that the 182 days for interim zoning is sufficient to complete the requisite study/investigation, that the current statute does provide for a notice process for extending interim zoning and that the super-majority vote of county commissioners to extend interim zoning is a requirement that does not exist in any other county law.  The Montana Environment Information Council testified that while they agree the interim zoning statute needs cleanup (which is why they speculated MACo may have “flip-flopped” on their position on this bill) and that there should be a due process procedure to extend interim zoning, the definition of what initiate a study is vague, the time period to complete the study is too short, that the public notice required to extend the interim zoning may require a lengthy legal notice, that extending interim zoning does not rise to the level of requiring a super-majority vote, that county commissioners should be held accountable for their actions on interim zoning through the election process and that no one had offered a concrete example of why this legislation was needed.  The Smart Growth collation gave examples of when interim zoning has been used in the past and gave as an example that if a county wanted to pass interim zoning due to strip clubs being proposed next to schools, a scientific investigation may be required.  Smart Growth also questioned the language change regarding “emergency”.  The Montana Audubon stated that the new bill language does not define “emergency” and the current statute also does not defined “emergency”.  The Montana Association of Planners handed out a position statement and stated that the current law should not be changed due to an isolated or unique event in the past.

Questions from the committee focused on the change of the language in the bill regarding “emergency” in that the current statutory language references an “emergency measure” and the new language just states “emergency”; the fact that the bill states that a county commissioner cannot abstain from a vote unless blessed by the county attorney which usurps county commissioner powers.  There were other questions and answers that confused when interim zoning is used, how that may affect a subdivision process, and the fact that a growth policy is not regulatory.

Additional Information: 
  • Heard before Senate Local Government on January 14, 2013
  • Heard before House Local Government on March 5, 2013
Tara DePuy | 406.223.1803 | attorney@riverworks.net