Montana Counties Warm to Zoning

By Beacon Staff

The vast majority of unincorporated land in Montana is un-zoned, but in recent years more counties, particularly in the fast-growth areas of western and central Montana, have started a new trend, with many extending planning into the rural areas and some even adopting countywide zoning.

But zoning remains a divisive issue in a state where property rights are cherished.

In the past year, counties have been particularly busy: Ravalli County is finishing up a permanent countywide zoning plan, Gallatin is trying to do the same and Flathead has adopted a growth policy that lays out the groundwork for future countywide zoning.

It’s been a busy time for a state where zoning was barely in the common vocabulary 15 years ago and is still considered a four-letter word by many. Myra Shults, a prominent land-use attorney and a consultant for the Montana Association of Counties, said she recalls in the 1990s when people used euphemisms for zoning, like “development code,” to avoid stirring up tension.

“I’ve seen a huge change since then,” Shults said.

To date, roughly a half-dozen of the state’s 56 counties, including Flathead, have implemented a type of zoning called “Part 2,” where county commissioners can vote to zone all or portions of unincorporated land without petitioning the residents, though they still take in public comment. In “Part 1” zoning, residents of individual districts can vote through a petition. Part 1 is more popular largely because it is far less politically volatile.

Nearly all of the zoning in Flathead’s unincorporated areas has been decided by the county, except for one small petition district, Assistant Planning Director B.J. Grieve said. Two-thirds of the county remains un-zoned, he said.

In many states countywide zoning is popular or even mandated, but Montana just recently joined the club. Still, Lake and Powell counties are the only two to have implemented it, while Gallatin and Ravalli are trying to follow suit. It’s not easy, as is evident with Ravalli’s troubles.

Two years ago, Ravalli instituted an interim countywide plan and has since been trying to craft a permanent plan, though county officials have been bogged down with lawsuits and, most recently, the opinion from the state’s attorney general that gives city residents more of a voice in the process.

“A lot of people are openly critical of the regulations,” said Ravalli County Planner Shaun Morrell. “But that’s good because it lets us know what the problems are and we can fix them.”

Proponents say countywide zoning, or at least expanded zoning in rural areas, allows county governments to better forecast capital improvements such as road construction and impact fees, as well as helping to avoid the potential confusion and conflict of developers muscling into unplanned areas. Opponents argue that it infringes on property rights by unfairly dictating how and in what way their land can be used.

To ease this tension, some counties are looking at zoning based solely on population density, rather than type of use. Lake County, which implemented its current system in 2005, uses the density model. Under Flathead’s growth policy, its development predictability map – the main tool in formulating countywide zoning – will do the same. In short, density modeling outlines how many units can be built in a certain area, though it doesn’t stipulate a designation, such as residential or commercial.

“People don’t want to be told where to build on their property or what to build,” Grieve said. “There seems to be a slightly greater receptiveness amongst the public to the idea of understanding what densities might occur around them.”

Morrell understands the controversy in Ravalli, admitting that the county’s interim plan is “a blunt instrument all around” and “doesn’t always make sense in every situation.” But the goal is to improve on those shortcomings in the permanent plan by holding frequent public comment meetings and tweaking as necessary. The hopeful deadline is November, he said.

Ultimately, Morrell believes a thoroughly constructed zoning plan will actually reduce tension.

“The county is growing so quickly, the more people you have moving into a finite amount of space, the more conflict you have,” Morrell said. “There’s a lot of people that don’t want any zoning. It can definitely be an emotional conversation for a lot of people.”

Tim Davis, of the Montana Smart Growth Coalition, echoed Morrell’s sentiments, saying that even if zoning raises ire at first, it will ultimately be a more agreeable setup for the majority. Zoning, he conceded, will always be controversial.

“Zoning is contentious, but also when a development comes into an un-zoned area, that’s contentious because nobody knows what to expect,” he said. “When no one knows what to expect, we have a reactive process.”

The June 23 AG opinion, issued at the request of the city of Hamilton, appears on the surface to only affect counties that make zoning decisions based on the vote of the people, as opposed to the county commission, which is the more traditional method. Randy Carpenter of the Sonoran Institute in Bozeman said no other county in Montana has used a “direct democracy” zoning referendum like Ravalli did, and couldn’t think of another example in the nation.

Davis doesn’t think the AG opinion will change much outside of Ravalli, adding that “the sky is not falling.” Shults, however, considers it a devastating blow that comes just as countywide zoning is beginning to pick up steam. Schults is now less optimistic about Ravalli’s chances in fully completing its plan.

“Now that we’ve thrown city residents into the mix, it confuses everything,” Shults said. “It’s very discouraging. It’s not like cities and counties have this love relationship.”

Shults said more and more people in Montana, from varying political backgrounds, are beginning to see the need for expanded zoning. But while isolated pockets in unincorporated areas may occur more frequently, countywide zoning in many parts of the state is difficult, she said, because of its sheer scope. She said “it’s practically impossible to zone most counties.”

“People start to realize there are big things that can’t be changed without zoning,” Shults said. “That doesn’t exactly translate into the political will to do it. The idea is good; the reality is that nobody wants their property to be zoned.”