07/23/01 Memo/Neier/HB 543City of Kalispell
Post Office Box 1997 - Kalispell, Montana 59903-1997 - Telephone (406)758-7700 Fax(406)758-7758
July 23, 2001;
TO: Ron Van Natta, Council Member
FROM: Glen Neier, City Attorne
C�e
RE: HE 543
Per your request of July 16, 2001, this office offers the following
for your review.
HE 543, passed by the legislature during the 2001 Session, has
created quite a stir in planning circles around Montana. The law
requires that local government entities, adopting a "growth
policy", further adopt subdivision regulations complying with the
growth policy. Prior to HE 543, under 76-1-605 M.C.A., local
governments were required to "be guided by and give consideration
to" the "growth policy" (master plan) when adopting subdivision
regulations. The law gives local governments one year from the date
of an adoption of a growth policy to adopt subdivision regulations
consistent with the growth policy. (One year after October 1, 2001
for those communities with a growth policy prior to October 1,
2001) .
The Montana Association of Counties has expressed reservations
concerning the application of HE 543. MACO opines that HE 543
leaves the county commissioners without discretion in interpreting
the growth policy and its application to subdivision regulations
and subdivision approvals. MACO objects because HE 543 requires a
degree of accountability heretofore absent from Montana law.
Montana law requires that planning boards prepare a growth policy
for submittal to the local governing bodies after public
hearing.(76-1-106, MCA) Planning boards are further obliged to
recommend ordinances and resolutions for implementation of the
growth policy. Nothing contained in the law requires that local
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governing bodies adopt a growth policy. Nothing contained in the
law requires local governing bodies to have a planning board. MACO
recommends in light of the statutory obligation that: 1) planning
boards at least begin work on a growth policy, or 2) planning
boards be disbanded so there exists no entity subject to the
requirements of 76-1-106, MCA. Flathead County's alleged decision
to reject any growth policy appears to be a hybrid of the advice
rendered by MACO.
The preamble of HE 543 clarifies the Legislative intent to
implement growth policies as the "proper adoption of land use
controls". The Flathead County Attorney's office has summed up the
effect of HE 543 as follows:
. . .subdivision regulations must govern subdivision
approval, not the master plan or growth policy.
Subdivision regulations must, in turn, be in conformance
with the growth policy.
This office attended a seminar on Real Estate this Spring. One of
the speakers specifically stated that local governing bodies in
Montana, primarily counties, had grown accustom to basing land use
decisions on factors other than the regulations enacted to provide
a level field. Further, some localities have adopted master
plans/growth policies with no intent or desire to implement any
regulations supporting them. The result has been a hodge podge of
land use decisions pleasing neither developers or the general
public.
HE 543 places some burdens on local governing bodies which may
require effort to carry. However, HE 543 does nothing more than
attempt to create a continuum to the process from growth policy to
subdivision regulations to subdivision approval/denial.
Finally, an uncodified provision of Chapter 36, L.1999 essentially
gives local governing bodies until October 1, 2001 to adopt a
growth policy. If a growth policy is not adopted by that date, the
development regulations with the jurisdictional area are frozen in
time, and no new regulations may be adopted. Declining to adopt a
growth policy based upon some notion that such action might
preserve a modicum of authority might have the opposite effect.
Even MACO's pessimism concerning HB 543 was tempered with the
conclusion: "On the other hand, maybe House Bill 543 will work!"
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