Bill Summary – FastDemocracy

Unofficial Draft Copy
67th Legislature                                                                                                     LC 2031
                                      _____________ BILL NO. _____________
                   INTRODUCED BY _________________________________________________
                                           (Primary Sponsor)
  3
   A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING ZONING LAWS; PROVIDING FOR
   PLANNING BOARDS FOR UNINCORPORATED AREAS; REVISING ZONING LAWS FOR AGRICULTURAL
   AND TIMBER LANDS; DESCRIBING PERMISSIBLE GOALS FOR ZONING; REVISING COVENANT LAWS;
   REVISING CRITERIA FOR GROWTH POLICIES, REQUIRING ADOPTION OF NEW GROWTH POLICIES;
   REVISING CRITERIA FOR ZONING REGULATIONS; REQUIRING REZONING; REVISING PROCEDURE
   FOR ADOPTION OF REGULATIONS AND BOUNDARIES; REQUIRING BOARDS OF ADJUSTMENT TO
   CONSIDER ADDITIONAL CRITERIA; REVISING LAWS REGARDING BOARDS OF ADJUSTMENT;
   REVISING VARIANCE LAW; REVISING SUBDIVISION REGULATION LAWS; PROVIDING DEFINITIONS;
   AMENDING SECTIONS 70-17-203, 76-1-102, 76-1-103, 76-1-601, 76-2-203, 76-2-205, 76-2-216, 76-2-221,
   76-2-223, 76-2-226, 76-2-227, 76-3-501, 76-3-503, 76-3-504, 76-3-506, 76-3-511, 76-3-608, 76-3-621, 76-6-
   103, AND 90-1-103, MCA; REPEALING SECTIONS 76-3-509 AND 76-6-102, MCA; AND PROVIDING AN
   IMMEDIATE EFFECTIVE DATE AND A RETROACTIVE APPLICABILITY DATE.”
 16
   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
 18
              NEW SECTION. Section 1.     Severability of joint or consolidated planning boards. At the election
   of a majority of voters in an unincorporated area via ballot initiative, residents of an unincorporated area may
   elect to establish a planning board for unincorporated areas in that county under their exclusive control.
 22
              NEW SECTION. Section 2.     Citizen members of unincorporated area planning board. Members
   of the unincorporated area planning board must be residents of the area.
 25
              NEW SECTION. Section 3.     Restriction on zoning land used for agricultural or timber purposes.
   Contiguous parcels of land under common ownership, used for agricultural or timber purposes, and in excess of
   160 acres may not be zoned for residential purposes without the consent of the landowner.
                                                               -1-                                                   LC 2031
Unofficial Draft Copy
67th Legislature                                                                                                         LC 2031
  1
              NEW SECTION. Section 4.         Scope and priority. (1) Zoning regulations may be derived from both
   general goals and regulations as well as specific regulations that apply to a specific parcel and achieve a
   tangible regulatory purpose.
              (2)   General goals, or regulations based on general goals, are goals and regulations that are either not
   tangible, or directly relate to the property in question in a clear and readily ascertainable way.
              (3)   General goals or regulations may have as considerations, but not be limited to:
              (a)   open space;
              (b)   view sheds; and
              (c)   community character.
              (4)   Specific regulations include but are not limited to:
              (a)   lot size restrictions based on tangible considerations of water availability, services, and fire
   mitigation;
              (b)   setback requirements;
              (c)   use restrictions; and
              (d)   ingress and egress requirements.
              (5)   A property owner's interest in the use and value of the property supersedes general goals when
   considering a variance.
              (6)   A property owner's interest in the use and value of the property is subservient to a specific
   regulation. A rebuttable presumption exists that a specific regulation is the least restrictive measure needed to
   achieve a government interest that is based on best evidence as it applies to a parcel of land.
              (7)   A property owner may seek a variance if the owner can prove:
              (a)   the regulation of the property impairs the use or valuation of the property;
              (b)   a viable alternative approach based on best evidence exists that achieves substantially the same
   effect as the regulation; or
              (c)   the regulation is not based on the best evidence and should be forgone.
              (8)   As used in this section, "substantial impairment" means an impairment of the use or value of the
   property as judged by a reasonable person to be greater than de minimis.
                                                                    -2-                                                  LC 2031
Unofficial Draft Copy
67th Legislature                                                                                                         LC 2031
  1
              Section 5. Section 70-17-203, MCA, is amended to read:
              "70-17-203. Covenants that run with land. (1) Except as provided in 70-1-522 and 70-17-212, every
   covenant contained in a grant of an estate in real property that is made for the direct benefit of the property or
   some part of the property then in existence runs with the land.
              (2)   Subsection (1) includes:
              (a)   covenants of warranty, for quiet enjoyment, or for further assurance on the part of the grantor and
   covenants for the payment of rent or of taxes or assessments upon the land on the part of a grantee;
              (b)   conservation easements pursuant to 76-6-209; and
              (c)   a dedication of open space as provided in 76-3-509; and
              (d) (c)   wind easements pursuant to Title 70, chapter 17, part 4.
              (3)   A covenant for the addition of some new thing to real property or for the direct benefit of some part
   of the property not then in existence or annexed to the property, when contained in a grant of an estate in the
   property and made by the covenantor expressly for the covenantor's assigns or to the assigns of the
   covenantee, runs with the land so far as the assigns mentioned are concerned."
 16
              Section 6. Section 76-1-102, MCA, is amended to read:
              "76-1-102.    Purpose. (1) It is the object of this chapter to encourage local units of government to
   improve the present health, safety, convenience, and welfare of their citizens and to plan for the future
   development of their communities to the end that highway systems be carefully planned; that new community
   centers grow only with adequate highway, utility, health, educational, and recreational facilities; that the needs
   of agriculture, industry, and business be recognized in future growth; that residential areas provide healthy
   surroundings for family life; and that the growth of the community be commensurate with and promotive of the
   efficient and economical use of public funds; and that property rights and individual preferences for housing and
   land use are respected.
              (2)   In accomplishing this objective, it is the intent of this chapter that the planning board shall serve in
   an advisory capacity to presently established boards and officials."
 28
                                                                    -3-                                                  LC 2031
Unofficial Draft Copy
67th Legislature                                                                                                      LC 2031
              Section 7. Section 76-1-103, MCA, is amended to read:
              "76-1-103.     Definitions. As used in this chapter, the following definitions apply:
              (1)   "Best evidence" means evidence that possesses the best empirically based explanatory power,
   the least bias, or provides the most compelling equitable argument.
              (1) (2)    "City" includes incorporated cities and towns.
              (2) (3)    "City council" means the chief legislative body of a city or incorporated town.
              (3) (4)    "Governing body" or "governing bodies" means the governing body of any governmental unit
   represented on a planning board.
              (4) (5)    "Growth policy" means a comprehensive development plan, master plan, or comprehensive
   plan that was adopted pursuant to this chapter before October 1, 1999, or a policy that was adopted pursuant to
   this chapter on or after October 1, 1999.
              (5) (6)    "Land use management techniques and incentives" include but are not limited to zoning
   regulations, subdivision regulations, and market incentives.
              (6) (7)    "Market incentives" may include but are not limited to an expedited subdivision review process
   authorized by 76-3-609, reductions in parking requirements, and a sliding scale of development review fees.
              (7) (8)    "Mayor" means mayor of a city.
              (8) (9)    "Neighborhood plan" means a plan for a geographic area within the boundaries of the
   jurisdictional area that addresses one or more of the elements of the growth policy in more detail.
              (9) (10)    "Person" means any individual, firm, or corporation.
              (10) (11) "Planning board" means a city planning board, a county planning board, or a joint city-county
   planning board.
              (11) (12) "Plat" means a subdivision of land into lots, streets, and areas, marked on a map or plan, and
   includes replats or amended plats.
              (13) "Property rights" means the interest of an individual to use the individual's property to the highest
   and best use provided it does not materially interfere with public health, safety, or welfare.
              (12) (14) "Public place" means any tract owned by the state or its subdivisions.
              (13) (15) "Streets" includes streets, avenues, boulevards, roads, lanes, alleys, and all public ways.
              (14) (16) "Utility" means any facility used in rendering service that the public has a right to demand."
                                                                    -4-                                               LC 2031
Unofficial Draft Copy
67th Legislature                                                                                                     LC 2031
  1
              Section 8. Section 76-1-601, MCA, is amended to read:
              "76-1-601.    Growth policy -- contents. (1) A growth policy may cover all or part of the jurisdictional
   area.
              (2)   The extent to which a growth policy addresses the elements listed in subsection (3) is at the full
   discretion of the governing body.
              (3)   A growth policy must include:
              (a)   community goals and objectives;
              (b)   maps and text describing an inventory of the existing characteristics and features of the
   jurisdictional area, including:
              (i)   land uses;
              (ii) population;
              (iii) housing needs;
              (iv) economic conditions;
              (v)   local services;
              (vi) public facilities;
              (vii) natural resources;
              (viii) sand and gravel resources; and
              (ix) housing affordability;
              (x)   housing preferences;
              (xi) the potential economic and social impact of land use regulations and growth patterns on various
   types of businesses;
              (xii) the potential impact of growth and land use regulations on property rights;
              (xiii) an analysis of current lot sizes and their potential to be subdivided or developed;
              (xiv) an analysis of economic impact on development of different density requirements in cities and
   unincorporated areas;
              (xv) a discussion of which regulatory approach will least interfere with property use and value while still
   achieving necessary regulatory goals; and
                                                                   -5-                                               LC 2031
Unofficial Draft Copy
67th Legislature                                                                                                       LC 2031
              (ix) (xvi) other characteristics and features proposed by the planning board and adopted by the
   governing bodies;
              (c)   projected trends for the life of the growth policy for each of the following elements:
              (i)   land use;
              (ii) population;
              (iii) housing needs;
              (iv) economic conditions;
              (v)   local services;
              (vi) natural resources; and
              (vii) other elements proposed by the planning board and adopted by the governing bodies;
              (d)   a description of policies, regulations, and other measures to be implemented in order to achieve
   the goals and objectives established pursuant to subsection (3)(a);
              (e)   a strategy for development, maintenance, and replacement of public infrastructure, including
   drinking water systems, wastewater treatment facilities, sewer systems, solid waste facilities, fire protection
   facilities, roads, and bridges;
              (f)   an implementation strategy that includes:
              (i)   a timetable for implementing the growth policy;
              (ii) a list of conditions that will lead to a revision of the growth policy; and
              (iii) a timetable for reviewing the growth policy at least once every 5 years and revising the policy if
   necessary;
              (g)   a statement of how the governing bodies will coordinate and cooperate with other jurisdictions that
   explains:
              (i)   if a governing body is a city or town, how the governing body will coordinate and cooperate with the
   county in which the city or town is located on matters related to the growth policy;
              (ii) if a governing body is a county, how the governing body will coordinate and cooperate with cities
   and towns located within the county's boundaries on matters related to the growth policy;
              (h)   a statement explaining how the governing bodies will:
              (i)   define the criteria in 76-3-608(3)(a); and
                                                                      -6-                                              LC 2031
Unofficial Draft Copy
67th Legislature                                                                                                          LC 2031
              (ii) evaluate and make decisions regarding proposed subdivisions with respect to the criteria in 76-3-
   608(3)(a);
              (i)   a statement explaining how public hearings regarding proposed subdivisions will be conducted;
   and
              (j)   an evaluation of the potential for fire and wildland fire in the jurisdictional area, including whether or
   not there is a need to:
              (i)   delineate the wildland-urban interface; and
              (ii) adopt regulations requiring:
              (A) (i)     defensible space around structures;
              (B) (ii)    adequate ingress and egress to and from structures and developments to facilitate fire
   suppression activities; and
              (C) (iii)    adequate water supply for fire protection.
              (4)   A growth policy may:
              (a)   include one or more neighborhood plans. A neighborhood plan must be consistent with the growth
   policy.
              (b)   establish minimum criteria defining the jurisdictional area for a neighborhood plan;
              (c)   establish an infrastructure plan that, at a minimum, includes:
              (i)   projections, in maps and text, of the jurisdiction's growth in population and number of residential,
   commercial, and industrial units over the next 20 years;
              (ii) for a city, a determination regarding if and how much of the city's growth is likely to take place
   outside of the city's existing jurisdictional area over the next 20 years and a plan of how the city will coordinate
   infrastructure planning with the county or counties where growth is likely to take place;
              (iii) for a county, a plan of how the county will coordinate infrastructure planning with each of the cities
   that project growth outside of city boundaries and into the county's jurisdictional area over the next 20 years;
              (iv) for cities, a land use map showing where projected growth will be guided and at what densities
   within city boundaries;
              (v)   for cities and counties, a land use map that designates infrastructure planning areas adjacent to
   cities showing where projected growth will be guided and at what densities;
                                                                     -7-                                                  LC 2031
Unofficial Draft Copy
67th Legislature                                                                                                           LC 2031
              (vi) using maps and text, a description of existing and future public facilities necessary to efficiently
   serve projected development and densities within infrastructure planning areas, including, whenever feasible,
   extending interconnected municipal street networks, sidewalks, trail systems, public transit facilities, and other
   municipal public facilities throughout the infrastructure planning area. For the purposes of this subsection