HELENA — A bill up for a hearing at the Montana State Capitol Tuesday argues that local governments are restricting residents’ rights to use their private property and seeks to limit future zoning regulations.
Supporters of Senate Bill 146 call it the “Private Property Protection Act.” It says the Montana Constitution’s right to “acquiring, possessing and protecting property” should also carry a fundamental right to use that property – and that cities and counties should therefore have to meet a higher bar to justify restricting those uses.
“We have to, first and foremost, proclaim the rights of our citizens and their property rights, and go from there,” said Sen. Becky Beard, R-Elliston, who is sponsoring SB 146.
The bill would require local governments’ zoning and other property use restrictions to be “narrowly tailored” and fulfill a “compelling state interest” to protect public health and safety, or to address nuisances.
Supporters argued many local regulations are unnecessary and overreaching. They said the rules were making it harder to build across the state, especially new housing.
“It's a certainty that many of the thousands of regulations which Montana property owners are subject to don't meet this compelling state interest standard, the Montana Supreme Court standard for fundamental rights,” said Kendall Cotton, president and CEO of the Frontier Institute. “Is there a compelling state interest advanced by regulating the exterior color of your building? I don't think so.”
Many of those speaking at Tuesday’s hearing use their properties for short-term rentals and were concerned that county rules cracking down on those operations would threaten their economic viability. A number were from Bridger Canyon, an unincorporated area outside Bozeman where Gallatin County officials determined that, because short-term rentals weren’t specifically mentioned in the local zoning regulations, they weren’t permitted.
“I know that some are worried that big corporations will buy up homes and turn them into mini-hotels, but local owners are worried right now about real financial hardship created without cause, that is forcing greater turnover of private property to wealthier individuals who don't need income to sustain ownership,” said Wendy Dickson, one of the Bridger Canyon landowners.
Opponents of SB 146 said cities and counties have other legitimate reasons to restrict uses – like separating incompatible uses or maintaining a community’s character – and the bill would interfere with that. They said the change would open up local governments to more lawsuits.
Kelly Lynch, executive director of the Montana League of Cities and Towns, said local governments have been working with the state in the last two sessions to make progress on supporting housing availability and reducing some of the regulatory backlog.
“This bill will undermine all of that work, all of the ‘Montana Miracle,’” she said. “This bill goes too far. It will create a morass of land use litigation, and it will get us no further to creating affordable housing.”
Lynch said she thinks issues like the Bridger Canyon situation will be resolved by another bill, Senate Bill 214, which would direct governments to interpret ambiguous zoning regulations “in favor of the free use of property.”
Beard said she would consider possible amendments to address some of the concerns raised about the bill. Cotton told MTN one possible change would be to clarify that SB 146 would only apply to future regulations, not overturn existing zoning – though he said, if a government decides to revise a regulation in the future, that would mean they’d have to take the private property rights into consideration.
