Land Use Battles

Land Use at the Legislature: Putting Developers in the Driver’s Seat

by Derf Johnson

Outside of climate change, and the enormous pressures placed on our land, air, and water by fossil fuel exploitation, it’s hard to think of a more complicated and serious threat to Montana’s environment than the astronomical growth that many of our cities, towns, and counties are currently experiencing, particularly in western Montana.

Unfortunately, a slew of land use planning bills were considered at this session of the Montana Legislature. Without exception, they were intended to make planning and zoning more difficult and to tip the scales in favor of developers and against communities and environmental quality. The worst of the worst bills ultimately failed, but some of the bad ideas made it through. Even more concerning is that some bills failed with the understanding that, over the next two years, major revisions to the subdivision and zoning codes would be cooked up, and new legislation would be introduced at the 2023 session. Brace yourselves: unplanned growth is coming.

Two of the most concerning bills, HB 527 (Rep. Fiona Nave, R-Columbus) and HB 498 (Rep. Steve Gunderson, R-Libby), did become law. While they were pared down from their original, extreme versions, the clear intent is to reduce the ability for citizen-initiated zoning to place sideboards on the development of oil and gas deposits. Currently, residents and communities can place reasonable restrictions on this activity to protect safety, environmental quality, and health. These bills (which are virtually identical) undermine this ability and make it easier for oil and gas companies to drill without any input from impacted neighbors and community members.

SB 174 (Sen. Greg Hertz, R-Polson), which was signed into law, will change a number of aspects of the subdivision review process. The bill’s intent is to put more power in the hands of developers, and less in the hands of local governments and affected neighbors. The bill restricts the conditions that may be placed on subdivisions, the way in which those restrictions may be applied, and the factors that may be utilized by a local government in making subdivision decisions. This bill was largely unnecessary, considering that the vast majority of subdivisions are already being approved and the current body of laws is long-established and functioning reasonably well.

Another bill signed into law, SB 211 (Sen. Steve Fitzpatrick, R-Great Falls), is an attack on the interest of Montana communities in preserving agricultural soils through the subdivision review process. The bill is intended to specifically target a program in Missoula County that required subdivisions to preserve a percentage of prime agricultural soils, but the bill is applicable statewide and will almost certainly have unintended and negative consequences for other counties, in addition to prohibiting the counties from considering agricultural soil (and its innumerable benefits) during the subdivision review process.

Two water quality bills related to development

(SB 164 and SB 165, Sen. Carl Glimm, R-Kila) ultimately failed. SB 164 would have allowed for greater concentration of nitrates in groundwater mixing zones for septic systems, which ultimately would have resulted in the nitrates finding their way into adjacent ground and surface waters. The bill failed to pass the House.

SB 165 would have eliminated sanitation review for subdivisions located more than 500 feet from surface water. Sanitation review is a critical element of the subdivision review process that the Montana Department of Environmental Quality conducts to assure that water quality is protected and that impacts from subdivisions are mitigated. This bill would also have eliminated water quality protections for minor subdivisions and eliminated sanitation review for facilities that expand under an existing permit, even if the permit is decades old. Thankfully, Gov. Gianforte vetoed this legislation.

A number of other bills also failed to pass muster at the Legislature but, as mentioned above, these ideas are likely to be back in 2023. Rep. Julie Dooling (R-Helena) carried HB 528, HB 529, and HB 395. These bills would have dramatically changed the zoning and subdivision regulations in ways that would have made land use planning cumbersome, disjointed, and confusing, and ultimately have led to poor growth and unnecessary environmental impacts.

In a similar vein, HB 470 (Rep. Marty Malone, R-Pray) would have made the creation of planning and zoning commissions more difficult and limited the evidence they could consider in their decision-making.

Finally, SB 349 (Sen. Steve Fitzpatrick, R-Great Falls) would have prevented county commissioners from establishing minimum lot sizes. That would have made it practically impossible for counties to consider site-specific characteristics in subdivision and zoning decisions, and would have made the process more unpredictable for both the landowners and the public.

The amendments to the subdivision and zoning codes could have been even worse. In large part, the fact that they were not is due to the dedicated involvement of our members and supporters, who worked tirelessly to beat back these proposals. We also owe thanks to Kate McMahon and Bob Horne, who consulted with us and provided expert testimony on virtually all of these proposals (learn more about them in a story on pg. 17).

We are justified in spending a little time celebrating, but we need to be alert in the next two years and prepare for the 2023 session, which will inevitably be another difficult one for land use planning protections in Montana.