Land Use Planning Under Attack

by Derf Johnson

One of the biggest pressures on Montana’s land and water in the past few decades has been development. The demand for additional housing and business space, particularly in western Montana, is only increasing as the population grows, in part because out-of-staters discover Montana’s high quality of life, open spaces, and the reprieve it provides from populous metro areas that were particularly hard-hit by COVID-19.

The legislature is using this as justification for eliminating or reducing land use planning protections for our land, water, and communities. Notably, the laws under threat are not prohibitions on development and growth, but rather ways for communities to plan for and mitigate development in order to preserve the amenities of their area. I’d like to think that Ed Abbey was thinking about Montana’s wild places, working farmlands, and river valleys when he wrote, “Growth for the sake of growth is the ideology of the cancer cell.” If we don’t think about, plan for, and condition development, we will end up with spoiled water, trammeled wild places, displaced wildlife, and broken communities.

A number of bad bills this session have already died, thanks to organizations and individuals from all over Montana testifying and contacting legislators. Unfortunately, a few of the bills have “squeaked through” and will be taken up in the second half of the session.

One of the worst bills is HB 527 (Rep. Fiona Nave, R-Columbus). It would prevent a group of residents in Stillwater County from creating a citizen-initiated zoning district (CIZ) to mitigate – not prohibit – the impacts of oil and gas development on the Beartooth Front. There are over 100 CIZs across the state that have already been adopted in unzoned areas in order to protect property values, local infrastructure, and water, as well as to maintain the residential and agricultural character of an area.

Another zoning bill, SB 294 (Sen. John Esp, R-Big Timber), purports to bring Part 2 county zoning (zoning initiated by the county itself) into compliance with Williams v Missoula County, a Montana Supreme Court decision that declared unconstitutional the delegation of “veto power” to large tract landowners. This bill does away entirely with “protest” rights and instead

Ravalli Country has 41 CIZs. Image from Ravalli County website.

allows public “comment” to be considered by the commissioners as they are required to do in most other instances.

The problematic provision of SB 294, however, is Section 1. This section would provide a mechanism to limit a referendum on Part 2 zoning to “electors residing in the district,” which would arguably exclude residents who are already subject to municipal zoning within a county. This disenfranchises those not in the “district” but who are still impacted by zoning decisions that may have major implications for the growth of their communities.

SB 164 and SB 165 (Sen. Carl Glimm, R-Columbus) would allow for additional nutrient pollution of Montana’s surface waters from development. SB 165 would eliminate: sanitation reviews for subdivisions that are more than 500 feet from water bodies, regardless of the hydrologic connection to the ground water; stormwater runoff permitting for minor subdivisions; and sanitation review for facilities that expand (such as wastewater treatment plants). SB 164 also increases the concentration of nitrates that are allowed in a groundwater mixing zone to 10 milligrams per liter. Nitrates are commonly associated with sewage.

Two bills still snaking through the session would change the subdivision review process by limiting the ability of local governments to mitigate subdivisions and giving more power to developers. SB 211 (Sen. Steve Fitzpatrick, R-Great Falls) would entirely prohibit local governments from considering the loss of agricultural soils in subdivision review. This is in direct reaction to work in Missoula County to preserve prime agricultural soils in order to promote food security and protect local, family-owned agricultural operations. SB 174 (Sen. Greg Hertz, R-Polson) would upend the subdivision review process by changing the standard of review and the decadesold set of criteria used to consider and mitigate subdivision impacts. This bill gives power to the hands of private developers and takes it away from local communities. Two bills chip away at the important protections provided by the Montana Environmental Policy Act (MEPA). Both bills seek to eliminate environmental review in specific instances:

HB 594 (Rep. Joe Read, R-Ronan) would eliminate the State’s obligation to comply with MEPA for forest management grants. The Department of Natural Resources and Conservation grants money to private and public entities to conduct forestry projects for wildfire risk reduction and forest health. Most projects are 40-100 acres in size. Unfortunately, HB 594 provides no limit on the size of the forest projects that could avoid MEPA compliance. MEPA compliance is often the only tool that local governments and neighbors have to learn the details of proposed projects on neighboring or public property and to have input into a decision. This public involvement results in more informed decisions so that the project can be better designed to protect water, wildlife, and property.

SB 53 (Sen. Jeff Welborn, R-Dillon) would amend the hardrock mining law to change the permitting process for decorative rock quarries. Certain aspects of the bill are positive changes, because they would free up resources at the Montana Department of Environmental Quality so that the agency can focus on other permitting decisions. However, the bill exempts rock quarries under 15 acres from having to conduct an environmental analysis under MEPA. MEPA analysis is critical to ensuring that the public is notified and involved in decisions affecting the environment and assuring that mitigation measures are considered.