HELEN THIGPEN STAFF ATTORNEY LEGISLATIVE SERVICES DIVISION MONTANA LEGISLATURE EDUCATION AND LOCAL...

HELEN THIGPEN

STAFF ATTORNEYLEGISLATIVE SERVICES DIVISION

MONTANA LEGISLATURE

EDUCATION AND LOCAL GOVERNMENT COMMITTEE

NOVEMBER 18 , 2011

County Zoning ProtestsLegal Challenges Update

Zoning 101

Local mechanism to regulate the use, location, or character of buildings or structures (land use).

Definition = legislative division by a local government of a region into separate districts (zones) that have different regulations for uses within the districts.

New York City adopted first zoning code in 1916. Early zoning codes developed primarily for safety

purposes.A Local government may regulate building size or

height, density, setbacks, green space, cell towers, industrial uses, adult businesses, etc.

Police Power

The basis and authority to zone is the police power. Police power = the government’s power to protect

the public’s health, safety, and general welfare.

The police power is inherent to the state, but has been delegated to local governments through enabling legislation for zoning.

Growth Policy

Zoning implements a growth policy.

The growth policy -- aka the master plan/comprehensive plan.

Blueprint for future development in a community.

Not regulatory (but may become regulatory in certain cases).

Must include certain items and may include certain items. (See 76-1-601, MCA)

No zoning without a growth policy (except Part 1 zoning).

Zoning regulations must substantially comply with growth policy.

Municipal Zoning

Governing body may zone to promote health, safety, morals, or general welfare.

Hearing and notice procedure must be followed. (See 76-2-303, MCA)

Regulations must be in accordance with the growth policy (growth policy required).

Board of adjustment may be established for variances.

Interim (aka emergency) zoning allowed.

Protest allowed, but governing body may override.

Citizen Initiated (Part 1) Zoning

Also known as “Part 1” zoning.

Zoning district may be created upon petition of 60% of the “affected real property owners”.

District cannot be less than 40 acres.

Growth policy not required (development pattern).

Protest authorized (Area may not be included in zoning district for 1 year if successful).

Protest allowed, but no override by governing body.

County Initiated (Part 2) Zoning

Also known as “Part 2” zoning.

Initiated by county commissioners.

May be adopted for all or part of a jurisdictional area.

Growth policy required.

Specific procedures for adoption. (See 76-2-205, MCA)

Interim zoning district or regulations allowed.

Protest allowed, but no override by governing body.

Zoning Protests -- Montana

Municipal Zoning (76-2-305, MCA) Protest the amendment of the zoning ordinance. Owners of 25% or more of the area of the lots included in the

change or those lots or units that are within 150 feet of the change. Governing body may override.

Citizen Initiated Zoning (Part 1) (76-2-101, MCA) Real property owners representing 50% of the titled property

ownership. If successful, BOC may not create the district and the area may not be

included in a district for 1 year. BOC may not override.

County Initiated Zoning (Part 2) (76-2-205, MCA) 40% of real property owners or real property owners

representing 50% of the titled property ownership taxed for agricultural purposes or as forest land.

If successful, BOC may not adopt zoning resolution or district and another zoning resolution may not be adopted for 1 year.

BOC may not override.

A Closer Look Protest of County Initiated (Part 2) Zoning

1. 40% of the real property owners within the district whose names appear on the last-completed assessment roll

2. Real property owners representing 50% of the titled property ownership whose property is taxed for agricultural purposes under 15-7-202 or whose property is taxed as forest land under Title 15, chapter 44, part 1

Example: 18 people in the proposed zoning district.

Option 1: Based Upon % of Real Property Owners

10 of the 18 people are real property owners.


4 or more (40%) of the real property owners are needed for a successful protest.


Proposed zoning district within Big Sky County.

Option 2: Based Upon Ownership of Acres Taxed as Agricultural or Forest Lands

Big Sky County

Proposed Zoning District

The proposed zoning district is mapped according to titled property ownership.


Big Sky County

Proposed Zoning District. Total of 130 acres

25

30

9

10

20

10 5 5

16

Titled property ownership taxed as agricultural or forest lands.


Big Sky County

Proposed Zoning District with agricultural and

forest lands in orange.100 of 130 acres

25

30

9

10

20

10 5 5

16

50% or more identified lands = successful protest (10 options).


Big Sky County



25

30

9

10

20

10 5 5

16

Example 1: 55 of 100 acres


Big Sky County



25

30

9

10

20

10 5 5

16



Big Sky County



25

30

9

10

20

10 5 5

16

Legal Challenges

Gateway Opencut Mining Action Group v. Board of County Commissioners of Gallatin County (GOMAG).

Williams v. Board of County Commissioners of Missoula County (Williams).

GOMAG

May 7, 2008 – Gallatin County adopted interim zoning.

County extended interim zoning to May 7, 2010.

March 23, 2010 – County passed resolution of intent to create permanent zoning.

Protests were received, but the county did not adopt permanent zoning within required time.

District Court ruled issue was moot.

GOMAG

Constitutional Arguments: Unlawful delegation of legislative authority

GOMAG argued that zoning is a legislative (local governing body) decision that cannot be delegated to landowners through a protest provision.

Protest provision may prohibit county from protecting public’s health and safety.

Equal Protection Non-landowners cannot petition the county regarding

zoning protest. Same as a vote for zoning, which non-landowners cannot

give.

GOMAG

Supreme Court affirmed.

Jurisdiction did not exist and case was moot.

No longer “a live controversy” once interim zoning expired.

Zoning failed because BOC did not take necessary actions to establish zoning before deadlines expired.

“Because the County could take no further action on the Interim Zoning District and it failed to take any action on the proposed Resolution before the May 27 deadline, the District Court correctly determined this matter was moot.”

- Gateway Opencut Mining Action Group v. Board of County Commissioners of Gallatin County, 2011 MT 198.

Williams

May 30, 2008 – Missoula County adopted North Lolo Rural Special Zoning District (interim).

Interim zoning extended to May 30, 2010.

April 7, 2010 – BOC adopted resolution of intent to adopt permanent zoning.

Five landowners in the district (three individuals and two entities) whose property is taxed for agriculture purposes protested (over 50% threshold).

May 14, 2010 – landowner requested court order that 76-2-205, MCA, is unconstitutional.

Williams

District Court issued preliminary injunction.

Order prohibited Missoula County from acting on protests.

County adopted North Lolo Rural Special Zoning District.

Motions for summary judgment filed.

Protestors intervened.

Case is pending in Missoula County . . .

Contact Information:

Helen [email protected]

Questions?

HELEN THIGPEN STAFF ATTORNEY LEGISLATIVE SERVICES DIVISION MONTANA LEGISLATURE EDUCATION AND LOCAL...

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