Homeowners group challenges four laws as unconstitutional
Darrell Ehrlick
(Daily Montanan) A group of homeowners who have banded together, calling themselves Montanans Against Irresponsible Densification, have challenged a group of four bills that were championed by Montana Senate Republicans during the 2023 session to address affordable housing in a state where both the availability of affordable housing and residential property taxes have been hotly debated.
The lawsuit, filed in Gallatin County, said that these homeowners, spread from Whitefish to Billings, believe the bill package unfairly targets certain towns and counties, cuts the public out of its constitutional right to participate in the decision-making process, and usurps some of the control given to cities and counties by the 1972 Constitution, and treats some property owners different than identical ones in the same place.
The lawsuit challenges Senate Bills 323, 382, 528 and 245 and was filed by MAID, which is represented by three Bozeman-based attorneys James Goetz, Henry Tesar and Brian Gallik.
Beyond the concerns about public comment, the lawsuit centers on the Legislature’s action to allow duplexes and accessory dwelling units in areas traditionally zoned and characterized by single-family housing.
The suit says the lawmakers have set a double standard for cities and counties, based on arbitrary numbers, which amounts to treating residents and property in different parts of the state in a different manner.
“For example, the cities of Hamilton and Polson both have populations of over 5,000, but they are not located in counties of at least 70,000 in population. The cities of Columbia Falls, Whitefish and Laurel, on the other hand, all of over 5,000 residents, do sit in counties of over 70,000 in population,” the suit said. “There is no reason in public policy or in the professed justification of addressing affordable housing that supports the entirely arbitrary distinctions between these similarly-situation cities. Yet one set is obligated to comply with the burdensome strictures of SB 382, while the other set is not.”
The State of Montana is listed as a defendant in the lawsuit. Republican Senate Communications staffer Kyle Schmauch declined to comment on the lawsuit when contacted by the Daily Montanan, but on “X,” formerly known as Twitter, commented:
“This lawsuit seeks to permanently screw Montanans out of homeownership, forever locking young families out of financial security and accelerating the transition of the Last Best Place to a playground that only the rich can afford.”
Zoning challenge
The lawsuit claims that the four bills take away some local (city or county) governments’ ability to zone, and it takes aim at Gov. Greg Gianforte’s Housing Taskforce, which MAID said did not include a “single ‘stakeholder’ member representing quiet, graceful residential neighborhoods.”
“There is nothing in (the bills) that directly addresses Montana’s affordable housing problem. Nor is there any guarantee or even a likelihood that any new housing, if any, will be ‘affordable,’” the lawsuit said. “Instead, the attitude of the governor’s task force, expressed by one of its members was a ‘build more’ solution, relying on the assumption that, with more houses built, prices will go down.”
The suit cites a 2023 study by the Urban Institute that concludes zoning reforms, many of which loosen restrictions, only have a minimal impact on supply and no reduction of housing costs.
The suit also claims that the new laws “water down” zoning ordinances in an attempt weaken zoning power of municipalities because they have become “the culprit” and “flavor of the day.”
In doing so, MAID claims that the Legislature is unfairly taking away part of their rights as property owners.
“Areas zoned for single-family uses have a long and venerable history in the United States and in Montana cities. Homeowners in Montana have traditionally relied on single-family zoning designation to protect the scale, character, and financial viability of their most important investment,” it said.
The lawsuit also said the new raft of legislation limits what local governments can do, including consideration of parking or impact fees, which could put additional strain on city services like water or sewer. Impact fees are generally charged to developers, passed on to homebuyers, that help offset providing additional services ranging from water and solid waste to fire and police protection.
“Eliminating or reducing the carefully calibrated impact fees on accessory dwelling units will result in cities, through their present taxpayers absorbing the extra cost of the ADUs which arise because of the added pressure on city infrastructure,” it said. “This will amount to an improper windfall to homeowners who choose to build ADUs. That is, present city taxpayers will have to subsidize homeowners who construct ADUs.”
Public participation
The lawsuit also claims that the Legislature purposefully wrote the public out of commenting and feedback, allowing no means of protest, and not requiring any review of specific zoning plans. The lawsuit said the laws violates the state constitution, which gives the public the right to participate at the decision-making level.
Calling it a “purposeful attempt to evade constitutional public participation requirements,” the suit said citizens may not even know about changes to property around them if the laws are allowed to stand.
“SB 382 does not even require the local government to issue a public notice when an application for a subdivision or zoning permit is received by the planning administrator,” it said. “The Montana Legislature may not simply wave a wand and declare final acts of approval ‘ministerial’ and thereby avoid constitutional rights of public participation.”
Equal treatment
MAID also says that the laws set up unequal treatment between some homeowners that have restrictive covenants, and others who do not.
“The residents who are fortunate enough to live in areas protected by restrictive covenants will be largely unaffected by these legislative measures,” the lawsuit said. “On the other hand, other residents who do not live in these restrictive covenant areas, but who, in many cases, reside just across the street from those so protected, will suffer the full inordinate burden of these legislative measures.”
Those differences amount to the government treating similarly situated people differently, a violation of equal protection.
“The difference in treatment…is unrelated to any legitimate governmental purpose, and clearly not related to the ‘problem’ seeking a solution – inadequate affordable housing,” it said.