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City, county leaders in Montana struggle with Legislature usurping local control

HELENA (MTFP) – After months of legislative debate, Montanans are beginning to glimpse how new laws passed by the 67th Legislature are poised to impact their lives. For county and municipal leaders, those impacts amount to a notable reduction in their ability to respond at a local level on a range of issues including public health, affordable housing and agricultural sustainability. 

One of the highest-profile examples of a major change local officials now have to contend with is House Bill 121, which requires that any rules or regulations proposed by local health officers or health boards be approved by an elected body.

Speaking with Montana Free Press this week, Bozeman City Manager Jeff Mihelich framed HB 121 and a lengthy list of similar laws as an “attack on local control.” Bozeman Deputy Mayor Terry Cunningham offered an equally strong interpretation, comparing the bills passed this session that restrict municipal and county control to bills challenging the independence of other governmental bodies such as the Public Service Commission and Montana’s judicial branch.

“It is a Legislature drunk on their own power,” Cunningham said, “and all other institutions be damned.”

According to Tim Burton, executive director of the Montana League of Cities and Towns, these new laws necessitate a robust conversation in the legislative interim about the historic importance and benefit of local control in Montana.

Burton said his staff is still assessing the myriad ways local governments will be affected, adding that the sheer scale of work done in conference committees during the Legislature’s final days has made pinpointing and analyzing every impact a challenge. 

“What, for instance, is the relationship between a local police department and the [Montana] University System relative to carrying guns on campus?” Burton said. “There’s a whole bunch of serious issues that we’re still assessing and I don’t have a complete analysis of that.”

Burton anticipates completing a full report on those impacts within the next few weeks. But in the meantime, local governments around the state are already pivoting to address the new laws of the land. And in some cases their frustrations are proving difficult to temper.

LOCAL HEALTH REGULATIONS

HB 121 arose in response to county face-mask mandates and other localized measures adopted in an effort to control the spread of COVID-19 over the past year. The bill’s sponsor, Rep. David Bedey, R-Hamilton, said during the session that his intent was to ensure that local governments take into account the impacts any health regulations would have on area businesses and religious practices.

Compared to other unsuccessful proposals limiting local health officials’ authority, Bedey characterized HB 121 as a “prudent balance.”

But Lewis & Clark County Health Officer Drenda Niemann told MTFP the law’s effects extend well beyond emergency provisions enacted during the pandemic. Her office regularly reopens existing regulations for review and possible amendment, a process that enables the public to weigh in.

One example she cited was a soil displacement rule designed to protect the public from contaminants at a Superfund site in East Helena. Under the new law, Niemann said, the task of reviewing such rules no longer falls to her office, but to an elected body.

That example underscores another immediate challenge raised by HB 121. Since the board of health charged with overseeing Niemann’s office is a joint city/county entity, a decision has to be made regarding which body will have governing authority over public health regulations: the city of Helena, or Lewis & Clark County.

Montana’s other large cities will have to make a similar determination, though the process for reaching that decision will be different based on how each health department is structured.

“We’re working as quickly as possible to get our local governing body identified for our jurisdiction, but that’s quite a process, and there’s lots of people that need to be involved with that discussion,” Niemann said. “It will happen eventually, but I’m guessing it’s going to take a couple of months to get there.”

Niemann’s larger concern about HB 121 is the law’s impact on citizen perception of public health in general. Local health officials have played a pivotal role in safeguarding the public for decades, she said, helping to accomplish such milestones as the eradication of polio in the U.S. Regulations drafted by health boards reflect the collective expertise of entire departments in the field of health care, Niemann added. 

“A bill like this has given kind of the perception to our public, the people who we exist to protect, that we are either not competent in the work that we do or that we cannot be trusted with the tools and the authority to do the work that we do to protect the public,” Niemann said.

INCLUSIONARY ZONING

In addition to a global pandemic, one of the increasingly pressing issues facing many Montana communities is affordable housing. The cities of Bozeman and Whitefish have attempted to tackle the problem in recent years with inclusionary zoning.

The strategy requires that developers include a certain number of affordable units in new residential housing projects or pay the city a fee in lieu of those units. Under House Bill 259, local governments are now explicitly barred from using inclusionary zoning.

Prior to adopting its inclusionary zoning ordinance in 2019, Bozeman had tried the softer approach of a voluntary inclusionary zoning provision. It turned out, Mihelich said, to be “an abject failure,” with not one developer volunteering to include affordable units or pay a fee.

In contrast, he continued, the mandatory version had already begun to bear fruit, with 17 affordable homes constructed and occupied in the past two years and roughly 70 more in various stages of construction or review.

“Now it’s really up to the developer on whether or not they want to do that,” Mihelich said. “The chances of them moving forward are slim to none. So basically the Legislature, in effect, took away the opportunity to build 70 affordable units in Bozeman.”

A similar ordinance passed in Whitefish in 2018 had yet to show Bozeman’s level of success. Planning Director Dave Taylor said the one residential project that fit the inclusionary zoning criteria was downsized in the face of neighborhood pushback, and he suspects other developers have been holding back to see how the requirement played out in the long-term.

But, he added, the Legislature’s passage of HB 259 scrubbed years of work by the Whitefish community to develop a strategic housing plan. And with real estate and rental prices climbing, the shortage of affordable housing is already having a noticeable impact on the local labor force.

“You look at any restaurant in Whitefish, every single one of them has help wanted signs out on the windows,” Taylor said. “They’re all struggling to find workers.”

Taylor and Mihelich agree that inclusionary zoning isn’t the only relief valve available to address affordable housing needs. But they say it was an important one, and given the trickle effect that its removal could have on the economies of Bozeman and Whitefish, Mihelich is troubled by the Legislature’s decision.

“I think it has a dramatic, direct impact on economic development, and in a bad way,” Mihelich said. “And I’m really surprised that the Legislature would pass a bill that would have a dramatic negative impact on economic development.”

LOCAL-OPTION GAS TAX

It’s hard for Missoula County Commissioner Josh Slotnick not to take the passage of House Bill 464 personally.

The bill, sponsored by Rep. Matt Regier, R-Kalispell, repealed a state law that allowed counties to adopt, via voter approval, a local gas tax. Regier told fellow lawmakers in March that HB 464 is tantamount to a tax reduction for Montana’s lowest-income citizens, those who may find it hardest to swallow an increase of a few extra dollars at the gas pump. 

But in the three-plus decades that the local-option gas tax has been on the books, only Missoula County has utilized it, and the vote to do so occurred just last year. One Missoula voice did rise in support of HB 464. Hi-Noon Petroleum CEO Dirk Cooper testified this spring that due to the competitive nature of gas prices, stations have a hard time passing a tax increase off to customers and, at least initially, were shouldering the increase themselves. 

For Slotnick, though, the story of HB 464 is one of a Republican-controlled Legislature repealing a law that only a liberal enclave had taken advantage of.

“This is not an issue of state control versus local control or the impact on private businesses or tourism or economics or anything,” Slotnick said. “This is political symbolism writ large, and we are reaping the consequences of that.”

Missoula County had estimated that the 2-cent tax would generate $1.2 million in revenue annually — roughly $400,000 of it from tourists — to fund road repairs and improvements typically paid for by the county’s only other major revenue source: property taxes.

Slotnick said the new gas tax revenues would also have enabled Missoula to tap into federal funding it has so far been unable to access due to matching-fund requirements. With the local-option gas tax now off the table, the burden of keeping Missoula’s roads drivable will continue to fall on the shoulders of local property owners.

“Meanwhile, summer’s beginning and we are just about to get crushed with probably the biggest tourist season of all time, given the pent-up demand due to the pandemic, and those folks will drive the heck out of our roads and not pay a dime for their impact,” Slotnick said. “And you and I and everyone else who lives here will cover their costs. It’s grossly unfair.”

VAPING REGULATIONS

Last November, Slotnick’s city counterparts in Missoula approved an ordinance to ban the sale of all flavored tobacco vaping products within five miles of the city limits. The ordinance, which many people anticipated would generate a lawsuit, also required that tobacco products be stored behind retail counters, away from underage Missoulians. In January, the City Council moved the ban’s implementation date to May, in recognition of pending legislation on vaping in Helena.

With the Legislature’s passage of Senate Bill 398, the ban is no longer an option in Missoula. The new law, sponsored by Sen. Jason Ellsworth, R-Hamilton, bars local governments from enacting such prohibitions. SB 398 generated strong support from e-cigarette retailers, with proponents pointing to the assistance the products render to people attempting to quit smoking. Ellsworth further stated in defending the bill that local control is “getting way out of control.”

In Bozeman, Deputy Mayor Terry Cunningham said SB 398 had the effect of derailing a conversation the city was planning to take up with the public in 2021. The issue of vaping and the perception that flavored products target underage individuals was a priority for city leaders heading into this year, and Cunningham watched with interest as a similar measure — House Bill 137, sponsored by Rep. Ron Marshall, R-Pinesdale, who co-owns three vape shops in the state — died in committee in March.

But, Cunningham said, “like Freddy Krueger” in a horror film, the proposal was revived with SB 398 in April and passed “with minimal public comment.”

“It takes our ability as a community to have an intelligent discussion about this topic away from us,” Cunningham said. “It ties our hands behind our backs when it comes to addiction [among] our children.”

Cunningham added that he’s working to figure out what options are left for Bozeman to discuss. The city could move to require additional signage regarding the dangers of vape usage among children and teens, or have flavored tobacco products moved further away from counters.

They could even launch a countywide marketing effort to convince kids that vaping is “not the way to start a healthy life,” an option Cunningham said pits taxpayer funds against the marketing money of big tobacco companies. 

“Now we are much more limited practically in what we can do, and what we can do is more along the lines of suggestions and education,” Cunningham said.

NATIONAL PLAYBOOK?

As Burton indicated, city and county leaders across Montana are still attempting to grasp the full scope of the Legislature’s impacts on their authority. In some cases those changes are clearly tied to the pandemic. House Bill 430, for example, bars local governments and the state from interfering with rent collection by landlords for more than 60 days during an emergency.

With other measures, local frustrations are tied to longer-term questions over local food systems and culture. Slotnick takes particular issue with Senate Bill 211, which bars governing bodies from taking loss of agricultural soils into account when reviewing proposed subdivisions.

The new law has put the Missoula County Commission into a race, Slotnick said, to complete a zoning process for lands around the city by year’s end that will safeguard agricultural lands and open space.

“It’s in our best interests in terms of the fragility of the national economy to be able to produce some of our food here,” Slotnick said. “It’s impossible to produce all of it, I’m not saying we should. But producing some a bit close to where we are is a really good hedge against the vulnerability of the national food system.”

At the Montana League of Cities and Towns, Burton remains stunned by what he saw transpire over the course of the session. The restrictions on local control remind him of similar legislation he’s heard of in Georgia, Texas and Florida, prompting him to speculate whether these new laws are part of a “national playbook.”

“I never thought that I would see the day when the Legislature would overturn a legally conducted local election like they did with the gas tax,” Burton said. “That’s a first for me. I’ve never seen anything like that come out of the Montana state Legislature in past years.”

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