Montana court backs pro-construction housing laws
A district court judge in Bozeman ruled Monday against most of the claims made by a homeowners group that sued to challenge four pro-construction housing laws passed by the 2023 Legislature. But he also concluded that provisions of one law intended to prevent not-in-my-backyard-style activism from derailing development proposals violate the Montana Constitution’s right of participation.
District Court Judge Mike Salvagni additionally concluded the 2023 laws, which include measures forcing cities to permit more accessory dwelling units and duplexes, can’t override homeowner association covenants.
The split ruling was applauded Monday by supporters and detractors of the housing laws, with Gov. Greg Gianforte and free-market housing advocates focusing on three zoning laws passing constitutional muster and a plaintiffs’ attorney stressing the judge’s ruling on public participation in project-specific development decisions.
“Today’s ruling by Gallatin District Court to uphold critical pro-housing reforms is a victory for all Montanans striving for affordable, attainable housing,” Gianforte said in a statement, adding that the laws “address our state’s housing crisis by increasing supply and expanding access to homeownership, a key part of the American dream.”
Whitefish-based Shelter WF, a housing advocacy group that had intervened in the case, and the Frontier Institute, a free-market think tank that had advocated for the 2023 bills, also applauded the ruling in statements Monday. Both had participated in Gianforte’s housing task force, which had helped develop the legislation.
“This ruling is good news for any Montanan looking to own or rent a home here, because more accessory dwelling units, duplexes, and small apartments will mean more affordability for regular working people,” said Shelter WF President Nathan Dugan.
Conversely, an attorney for the plaintiffs, Bozeman-based Montanans Against Irresponsible Densification — or MAID — said the court had correctly struck down provisions of 2023’s Senate Bill 382 that cut the public out of the land use decisions.
“Public participation is required constitutionally,” said MAID attorney Jim Goetz. “This is a real dagger in the heart of that statute.”
MAID filed the legal challenge in late 2023, arguing the laws would force its homeowner-members to live in more-densely populated areas with larger buildings, more traffic and “any number of other changes that spur uninterrupted development under the guise of affordable housing.” Salvagini had previously ordered that some of the laws be put on hold while the challenge was litigated, a decision that was overturned by the Montana Supreme Court in September.
The three laws upheld in their entirety by Salvagni’s ruling are as follows:
1. 2023’s Senate Bill 245, which requires cities of 7,000 residents or more to allow apartment-style housing in most areas set aside as commercial zones.
2. 2023’s Senate Bill 323, which requires cities to allow duplex housing on any home lot in cities with 5,000 residents or more.
3. 2023’s Senate Bill 528, which requires cities to adopt regulations allowing more construction of accessory dwelling units, or secondary housing structures that share parcels with larger homes.
The other bill, SB 382 or the Montana Land Use Planning Act, is a broad rework of the state’s land use planning rules. Supporters, including the Montana League of Cities and Towns, called it an effort to modernize the development permitting process as municipalities plan for the housing necessary to accommodate growing populations.
Among other provisions, that law sought to increase public involvement as high-level growth plans are written and dial participation back once specific projects are proposed — a shift supporters said would help keep NIMBY-style activism from gumming up the works.
For example, the new land use planning act specifies that development proposals deemed to be in “substantial compliance” with previously adopted zoning regulations and subdivision requirements should be subject to administrative approval by city staff rather than subjected to public hearings in front of elected officials — hearings that sometimes provide a venue for neighbors to rally against proposed developments. Supporters had argued that the new approach would provide a system where developers have more certainty about what they can build in particular places and would speed approvals of projects that don’t rock the boat.
Goetz said Monday that approach doesn’t match the reality of complex planning challenges.
“The problem with land use planning is that it’s not that clear cut and simple. It’s not that black and white, when you set out general provisions in your growth policy, whether a later project applies,” he said. “The public should have the right to get involved — and has.”
While the new land use planning law does provide for an appeal process for contentious projects, Salvagni agreed with MAID that dialing back opportunities for post-proposal public comments violates the Montana Constitution’s right of participation.
“These provisions of the law precluding public participation without notice and opportunity to be heard at the decision making stage by the planning administrator on a proposal for a site-specific development are facially unconstitutional,” Salvagni wrote. “This blanket prohibition for notice and opportunity to be heard offends the Constitution.”
Kelly Lynch, the executive director of the Montana League of Cities and Towns, said in a Monday interview that she was disappointed in the ruling on the participation shift, noting that the law had added many opportunities to solicit public input earlier in the process.
“Obviously, we don’t think this is the right decision,” said Lynch, who lobbied for the new approach in 2023, assuring lawmakers it would past constitutional muster. “We’re looking at our options, which could include appealing.”
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This story was originally published by Montana Free Press and distributed through a partnership with The Associated Press.