1. Ordinance 1438 - Interim Zoning Regulations - 1st ReadingCity of Kalispe
CityAttor,.ey Office of City Attorney Tel406.758.7708
Charles A. Harball 312 First Avenue East Fax 406.758.7771
P.O. Box 1997 charball@halispell.com
Kalispell, MT 59903-1997
MEMORANDUM
TO: Mayor Pamela B. Kennedy
and Kalispell City Council
FROM: Charles Harball, City Attorney
Chris Kukulski, City Manager
SUBJECT: Enactment of Interim Zoning Ordinance
MEETING DATE: October 21, 2002
BACKGROUND: On September 26, 2002 the Attorney General issued his opinion regarding the
requirement for local governments to develop new growth policies. It is the opinion of the Attorney
General, which has the effect of law, that the City may not rely upon and utilize the existing City -
County Master Plan if it does not fully comply with the 1999 Statute. Regardless of the difficulties
that the City has had with the County in its planning efforts, it must have a compliant growth policy
in place if it is to go forward with any substantive planning. The opinion went on to hold that: "If
a city or county has not developed a growth policy, interim zoning regulations may be implemented
only when: there is an exigent circumstances related to public health, safety and welfare; the zoning
measure reasonably relates to that exigency; and more formal planning processes are underway as
required by statute. Failure to adopt a growth policy is not, in and of itself, an exigency that permits
adoption of emergency interim zoning."
The public hearing will produce evidence regarding the public health, safety and welfare
issues that may be urgent and need to be addressed through the interim zoning ordinance. Staff and
perhaps the public will testify at the hearing and will hopefully assist you in deriving the necessary
findings to determine whether or not an exigency exists for the interim zoning. A staff report from
Tri-City Planning has been generated with proposed findings for you to consider adopting by
reference.
RECOMMENDATION: That council consider the need for an interim zoning ordinance.
FISCAL EFFECTS: There should be no real fiscal effects of this ordinance.
Respectfully submitted,
Charles Attorney
Chris Kukulski, tity Manager
ORDINANCE NO. 1438
AN ORDINANCE ADOPTING INTERIM ZONING REGULATIONS AND DECLARING
AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, MONTANA, AS
FOLLOWS:
SECTION I. This City Council hereby adopts Tri-City Planning Office report KZ-
02-1 as findings of fact.
SECTION II. The zoning regulations, attached as Exhibit "A" shall be and are
hereby determined to be the interim zoning ordinances for the City of
Kalispell.
SECTION III. The interim zoning ordinances shall be effective for a period not to
exceed six months.
SECTION IV. This Ordinance shall take effect immediately after final passage by
the City Council.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR THIS
21 ST DAY OF OCTOBER, 2002.
Pamela B. Kennedy
Mayor
Attest:
Theresa White
City Clerk
CITY OF KALISPELL
KALISPELL INTERIM ZONING
TRI-CITY PLANNING OFFICE
STAFF REPORT KZ-02-1
OCTOBER 15, 2002
This is a report to the Kalispell City regarding findings of fact for adoption of interim
zoning for the Kalispell zoning jurisdiction. A public hearing has been scheduled
before the Kalispell City Council on October 21, 2002 at 7:00 PM in the Kalispell
City Council Chambers, 213 First Avenue East, Kalispell, MT regarding this matter.
BACKGROUND INFORMATION• On September 26, 2002 the Attorney General for
the State of Montana issued an interpretation for Montana. Code Annotated 76-1-
601, Growth Policy, Volume No. 49, Opinion No. 23 that has significant potential
impacts for the City of Kalispell and other communities around the state. This
opinion held the following:
1. A comprehensive plan adopted prior to October 1, 1999, has no legal effect as the
basis for new local zoning or subdivision regulations unless it meets the
requirements of a growth policy pursuant to Montana Code Annotated 76-1-6-1.
2. Zoning regulations lawfully adopted pursuant to master plan, comprehensive
plan and comprehensive development plans prior to October 1, 2001, are valid
and enforceable. However, after October 1, 2001, county and municipal zoning
regulations authorized by Title 76, chapter 2, parts 2 and 3, may not be adopted
or substantively revised unless a growth policy is adopted for the entire area of
the planning board having jurisdiction.
3. A municipal governing body may not extend municipal boundaries, pursuant to
the Planned Community Development Act of 1973, without conforming to a
growth policy.
4. The expedited review provisions of the Subdivision and Platting Act may not be
utilized without a compliant growth policy.
5. If a city or county has not developed a growth policy, interim zoning regulations
may be implemented only when: There is an exigent circumstance related to
public health safety and welfare; the zoning measure reasonably relates to the
exigency; and more formal planning process are underway as required by statute.
Failure to adopt a growth policy is not in and of itself an exigency that permits
adoption of emergency interim zoning.
6. A growth policy must cover the entire planning board jurisdiction for zoning
decisions to proceed.
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Petitioner: City of Kalispell
Chris Kukulski, City Manager
P.O. Box 1997
Kalispell, MT 59901
(406) 758-7701
Area Effected by the Proposed Action: Any area within the 6.83 square miles of the
Kalispell zoning jurisdiction that will be effected by the adoption of interim zoning.
Proposed Action: Adoption of the City of Kalispell Interim Zoning Ordinance and City
of Kalispell Interim Zoning Map referenced in Ordinance 1438 as Exhibit A.
Staff Discussion: The Montana Code Annotated 76-2.306 authorizes interim zoning
and provides the following:
"A city or town council or other legislative body of such municipality, to protect
the public safety, health and welfare and without following the procedures
otherwise required preliminary to the adoption of a zoning ordinance, may adopt
as an urgency measure an interim ordinance prohibiting any uses which may be
in conflict with a contemplated zoning proposal which the legislative body is
considering or studying or intends to study within a reasonable time."
The issue at hand for the Kalispell City Council that is intended to be addressed by
the adoption of interim zoning deal with actions related to zoning and annexation that
may have been taken since October 1, 2001 without the benefit of a compliant growth
policy. As per the AG's letter dated September 26, 2002 "Thus, interim zoning may be
adopted with a community has not adopted a growth policy so long as all property
procedures re followed, more formal planning processes are underway and the interim
measure is reasonably related to an exigent circumstance as described in this
opinion."
This opinion further states that "The question of what constitutes and "exigency" is
necessarily fact -bound, and under the law it is left largely to the discretion of the local
governing body. However, in my opinion, the failure to adopt a growth policy cannot,
in and of itself, constitute an "exigency" that would allow adoption of emergency
interim zoning. If it were otherwise, the transition provision of SB 97 would be a
nullity, because local governments would be allowed to continue to adopt zoning
without first adopting a growth policy, justified solely by their failure to adopt the
growth policy..."
Adoption of interim zoning will essentially ratify previous actions by the council that
relate to rezoning, zoning text changes and annexations. This is important to the
public welfare in as much as there have been a number of actions taken by the city
council over the last year that individuals and the public, including financial
institutions and insurance companies who have acted in good faith in moving forward
with investments, purchases and other financial decisions based on actions taken by
the City of Kalispell. These conditions create the "exigent" circumstances under
which interim zoning is being considered.
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The Attorney Generals Opinion outlines the specific circumstances under with
interim zoning may be adopted and further clarifies when interim zoning measures
may be adopted and the conditions on the use of interim zoning including the
existence of an exigency.
There may be some questions whether proper zoning procedures have been
satisfied with regard to some of the zoning actions by the Kalispell City Council
since October 1, 2001; absent a compliant growth policy.
If the actions of the Kalispell City Council are legally questionable, this could
potentially expose the City to liability because of financial decisions,
investments and other compelling actions that have occurred on the part of the
public as a result of these decisions.
•- • u u• .•• - •- •• e. ROM
Interim zoning that is being considered simply ratifies past actions of the
Kalispell City Council, does not propose any substantive changes to the
existing document or the zoning map and will satisfy questions raised regarding
changes that have been made since October 1, 2001.
Currently the Kalispell City Planning Board is holding weekly work sessions to
produce a compliant growth policy document that will be reviewed by the
Kalispell City Council and ultimately adopted. The Kalispell City Growth Policy
will be used as a basis for future zoning, annexation and zoning text
amendments.
The proposed amendment will not generally have an affect on congestion in the
streets since the types of uses will not be changed not would it change any of
the zoning that is currently reflected on the zoning map for the City of Kalispell.
The amendment would not affect the healthy, safety or increase the risk to the
general public.
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The proposed text zoning will serve the general welfare by providing for
certainty and reliability of the local government's actions and will accommodate
the needs of the residents and businesses within the community.
This change will not affect the size and number of buildings constructed in the
city. The development standards of the zoning district would dictate the height
and size of buildings and their setbacks.
The zoning will not change the technical aspect of the zoning regulations that
would result in the overcrowding of land or the undue concentration of people
in one area over another.
The zoning will allow the continued facilitation of public services or utilities
since all of the uses will be constructed in accordance with the standards of the
City of Kalispell and under the terms and conditions of previous approvals.
KZTA\02\KZ-02-1
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