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County Zoning Protests Legal Challenges Update - Montana

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					County Zoning Protests
Legal Challenges Update

         HELEN THIGPEN

         STAFF ATTORNEY
   LEGISLATIVE SERVICES DIVISION
      MONTANA LEGISLATURE

      EDUCATION AND LOCAL
     GOVERNMENT COMMITTEE

       NOVEMBER 18, 2011
                        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          2. Real property owners
   property owners within      representing 50% of the
   the district whose          titled property
   names appear on the         ownership whose
   last-completed              property is taxed for
   assessment roll             agricultural purposes
                               under 15-7-202 or
                               whose property is taxed
                               as forest land under
                               Title 15, chapter 44,
                               part 1
Option 1: Based Upon % of Real Property Owners




        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.
Option 1: Based Upon % of Real Property Owners




4 or more (40%) of the real property owners are needed for a successful protest.
   Option 2: Based Upon Ownership of
Acres Taxed as Agricultural or Forest Lands



 Big Sky County




                                       Proposed Zoning District




      Proposed zoning district within Big Sky County.
        Option 2: Based Upon Ownership of
     Acres Taxed as Agricultural or Forest Lands



       Big Sky County

                                                                         9
                                                   25
                                                                 30
                                                                        16
            Proposed Zoning District.              10
               Total of 130 acres
                                                            20

                                                 10               5      5


The proposed zoning district is mapped according to titled property ownership.
   Option 2: Based Upon Ownership of
Acres Taxed as Agricultural or Forest Lands



 Big Sky County

                                                                    9
                                             25
                                                            30
                                                                    16
     Proposed Zoning District                10
    with agricultural and forest
          lands in orange.
                                                       20
          100 of 130 acres
                                           10                5      5


 Titled property ownership taxed as agricultural or forest lands.
   Option 2: Based Upon Ownership of
Acres Taxed as Agricultural or Forest Lands



 Big Sky County

                                                                   9
                                            25
                                                           30
                                                                   16
     Proposed Zoning District               10
    with agricultural and forest
          lands in orange.
                                                      20
          100 of 130 acres
                                          10                5      5


 50% or more identified lands = successful protest (10 options).
   Option 2: Based Upon Ownership of
Acres Taxed as Agricultural or Forest Lands



 Big Sky County

                                                          9
                                           25
                                                     30
                                                          16
     Proposed Zoning District              10
    with agricultural and forest
          lands in orange.
                                                20
          100 of 130 acres
                                         10           5   5


                  Example 1: 55 of 100 acres
   Option 2: Based Upon Ownership of
Acres Taxed as Agricultural or Forest Lands



 Big Sky County

                                                         9
                                          25
                                                    30
                                                         16
     Proposed Zoning District             10
    with agricultural and forest
          lands in orange.
                                               20
          100 of 130 acres
                                        10           5   5


                  Example 2: 50 of 100 acres
   Option 2: Based Upon Ownership of
Acres Taxed as Agricultural or Forest Lands



 Big Sky County

                                                         9
                                          25
                                                    30
                                                         16
     Proposed Zoning District             10
    with agricultural and forest
          lands in orange.
                                               20
          100 of 130 acres
                                        10           5   5


                  Example 3: 50 of 100 acres
                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 the County could
    “Because Court affirmed.
     take no further action on
     the Interim Zoning District
     and it failed to take exist
    Jurisdiction did not any
     and case was moot.
     action on the proposed
     Resolution before the May
     27 longer “a live
    Nodeadline, the District
     Court correctly determined
     controversy” once interim
     this matter was
     zoning expired. moot.”
     - Gateway Opencut Mining Action Group v.
    Zoning failed because BOC
     Board of County Commissioners of Gallatin
     County, 2011 MT 198.
     did not take necessary
     actions to establish zoning
     before deadlines expired.
                           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 Thigpen
hthigpen@mt.gov
444-3804



                       Questions?

				
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