1. Ordinance 1438 - Interim Zoning RegulationsCity of Kalispell
City Attorney Office of City Attorney Tel 406.758.7708
Charles A. Harball 312 First Avenue East Fax 406.758.7771
P.O. Box 1997 charball@kalispell.00m
Kalispell, MT 59903-1997
October 29, 2002
TO: Mayor Pamela B. Kennedy
and Kalispell City Council
FROM: Charles Harball, City Attorney
SUBJECT: Interim Zoning Ordinance and Resolution
MEETING DATE: Monday, November 4, 2002
BACKGROUND: This matter was before the Council at the October 21, 2002 meeting and
the matter was tabled pending further explanation by staff. Questions and concerns were
discussed at the October 28, 2002 work session. We discussed the following:
1. The City entered the year 2001with a land use planning scheme based on a Master
Plan that shared jurisdictional authority with the County and involved a city/county planning
board. By the end of that year the County withdrew from the joint jurisdictional planning
authority and it became apparent thereafter than the City and County were unable to agree upon
a growth policy for our area.
2. This occurred against the backdrop of the state legislature enacting SB 97 (MCA 76-
1,601 et seq.) which states on its face that a local government with an effective Master Plan in
place prior to October 1,1999 may adopt zoning regulations that are consistent with the Master
Plan un OOctober 1, 2001. However, there were various opinions and assertions expressed by
individual legislators and commentators invested in local government land use planning at the
malting of SB 97. These assertions created a plausible argument for the case that the
legislature never intended to create a situation in which those local governments with pre,1999
master plans in place would suddenly be without any legal structure for land use planning after
October 1, 2001. Because of the need and demand for such structure by its citizen landowners,
the City of Kalispell, like various other local governments in the State, chose to go forward with
its land use determinations while it sorted through its development of a jurisdictional area and
a growth policy for that area. As it did so, the City, in the Spring of 2002 requested an opinion
from the Attorney General regarding the meaning and effect of SB 97.
3. On September 26, 2002 the Attorney General finally issued his opinion regarding SB
97. That opinion has the effect of law unless and until the matter is finally determined by a
court of competent jurisdiction. That legal fact was discussed with Council. The Council was
advised that there may well be valid legal arguments to be made to challenge the opinion of the
Memorandum to Council
Re: Interim Zoning
October 29, 2002
Page - 2
Attorney General and that such arguments may ultimately persuade a court. However, because
the City is currently in the process of completing a compliant growth policy which will certainly
be in place long before a court would ever resolve the issue, the Council determined to take the
more pragmatic approach to not challenge the AG opinion.
4. The opinion of the Attorney General set forth the following premises:
a) A master plan adopted prior to October 1, 1999 no longer has any legal
effect as a basis for new local zoning or subdivision regulations.
b) Zoning regulations lawfully adopted based upon a valid master plan prior
to October 1, 2001 are valid and enforceable.
c) Zoning regulations may not be substan dvely revised after October 1,
2001 without a compliant growth policy in place.
d) If the local government has not developed a growth policy, it may
implement interim zoning regulations if i) there are exigent circumstances
relating to the public safety, health or welfare, and ii) the zoning measure
relates to the exigency, and iii) more formal planning processes are
underway as required by statute.
S. Premise "a" and 66b" come from the plain language reading of the statute. It should
be acknowledged that the Attorney General likely realized the severe impact that premise "a"
would have on some local governments. Certainly the City of Kalispell can not be blamed and
should not be hamstrung for not having a compliant growth policy in place. It, perhaps more
than most other local governments, made every earnest effort to bring its master plan into
compliance with the changing Hand use legislation. Perhaps this may be the reasoning of the
Attorney General to opine that c) non -substantive revisions to zoning regulations are allowed
(tacitly acknowledging that such revisions could exist) and d) to specifically give local
governments the unsolicited nod to MCA 76-2-.306, which allows for interim zoning
regulations.
6. Staff is proposing a two pronged approach to dealing with the current legal landscape.
The first is the "rear view" approach to deal with events and decisions that have been made
since October 1, 2001 until now. The second is the forward looking approach to deal with the
time frame from now until the growth policy is put in place.
City of Kalispell
Office of City Attorney
Memorandum to Council
Re: Interim Zoning
October 29, 2002
Page - 3
a) Interim Zoning Ordinance The purpose of the interim zoning ordinance
is to gather those land use determinations that have taken place since
October I, 2001 and to place them into the context of valid and
enforceable zoning regulations by ratifying and affirming those prior
actions. As it was discussed at the work session, the landowner
applicants that came to the City seeking land use determinations have a
right to rely upon those determinations of the City. Their welfare and the
welfare of the rest of the public is compromised if that good faith reliance
works out to their detriment.
b) resolution of Standards for Non -substantive Zoning Revision. The
purpose of establishing a standard to define what is and what is not a
substantive zoning revision is to advise the public as well as City staff as
to which of those requests for zoning revision may or may not be
entertained by the City prior to its adoption of a compliant growth policy.
RECOMMENDATION: That Council should adopt the Interim Zoning Ordinance as well as
the Resolution of Standards for Non -substantive Zoning Revision.
Respectfully
Attorney
City of Kalispell
Office of City Attorney
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 KMPA-02-
01A as findings of fact and incorporates those amendments outlined in Attachments A and B by
reference herein to the Kalispell Interim Zoning Ordinance.
SECTION II. The Kalispell Interim Zoning Ordinance, attached as Exhibit "A" shall be and
is hereby determined to be the interim zoning ordinance 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
4th DAY OF NOVEMBER, 2002.
Pamela B. Kennedy
Mayor
Attest:
Theresa White
City Clerk
CITY OF KALISPELL
KALISPELL INTERIM ZONING
TRI-CITY PLANNING OFFICE
STAFF REPORT KZ-02-1A
OCTOBER 30, 2002
This is a report to the Kalispell City Council regarding findings of fact for adoption of
interim zoning for the Kalispell zoning jurisdiction. A public hearing was 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.
After the public hearing this matter was tabled for consideration by the council at
the November 4, 2002 regular Kalispell City Council meeting.
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:
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 76-1-601.
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.
A municipal governing body may not extend municipal boundaries, pursuant to
the Planned Community Development Act of 1973, without conforming to a
growth policy.
The expedited review provisions of the Subdivision and Platting Act may not be
utilized without a compliant growth policy.
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.
A growth policy must cover the entire planning board jurisdiction for zoning
decisions to proceed.
Petitioner: City of Kalispell
Chris Kukulski, City Manager
P.O. Box 1997
Kalispell, MT 59901
(406) 758-7701
Area Effected by the Proposed Action: Potentially any area within the 6.83 square
miles of the Kalispell zoning jurisdiction could 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 along with
a resolution outlining criteria for determining substantive changes in zoning. When
adopting Ordinance 1438 it also includes adoption of this staff report as findings of
fact and references the amendments that were made by city council by way of
ordinance or resolution as well as references to the Kalispell City Planning Board
rather than the Kalispell City County Planning Board .and minor changes related to
the growth policy and Tri-City Planning Office. A resolution will be presented to the
city council outlining criteria for substantive and non -substantive changes for
evaluating future projects that may be proposed and whether or not they can be
accepted for processing.
Staff Discussion: The purpose of adopting interim zoning regulations is to ratify and
affirm actions taken by the Kalispell City Council from October 1, 2001 to date. Those
actions are compiled in a list attached to this report as Attachment A. The adoption
of interim zoning regulations will also address the establishment of the Kalispell City
Planning Board, replacing the Kalispell City -County Planning Board and replacing
reference to the master plan with reference to the growth policy. These changes will
be incorporated into the "Kalispell Interim Zoning Ordinance" that will be in place
until such time as a Kalispell Growth Policy is adopted. Once the growth policy is
adopted, the city council will permanently adopt the Kalispell Zoning Ordinance with
all changes. In order to comply with the spirit of SB 97 and the interpretation of the
Attorney General Office, during the period of time between the adoption interim
zoning and adoption of the growth policy and permanent zoning, only non -substantive
zoning amendments and / or changes would be undertaken by the staff and
considered by the Kalispell City Planning Board and Kalispell City Council.
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."
Because actions were taken by the Kalispell City Council related to zoning and
annexation without a compliant growth policy, adoption of interim zoning affirms
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those actions and removes potential liability for the city and developers. As per the
AG's letter dated September 26, 2002 "Thus, interim zoning may be adopted when a
community has not adopted a growth policy so long as all property procedures are
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 S' x v 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.
EVALUATION AND FINDINGS OF FACT
The Attorney Generals Opinion outlines the specific circumstances under which
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.
Have proper zoning_ procedures been satisfied.
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. This could create
uncertainty for property owners immediately effected by those decisions or
those who have relied on decisions in making substantial investments.
Some matter of urgency requires zoning to protect public safety, health and
welfare.
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. This could also create serious uncertainty
for private citizens who have bought, built, invested or resided in areas subject
to zone amendments since October 1, 2001. The could also expose these
people to unnecessary litigation and liability.
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The interim measures address the urgent matter.
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.
More formal planning processes have been initiated or will be initiated within a
reasonable time.
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.
Is the requested zone designed to lessen congestion in the streets?
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.
Will the regulations secure safety from fire, panic, and other dangers?
The amendment would not affect the healthy, safety or increase the risk to the
general public.
Will the requested change promote the health and general welfare?
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, particularly
those who have relied on past zoning and annexation decisions since October 1,
2001.
Will the requested zone provide for adequate light and air?
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.
Will the requested zone prevent the overcrowding of land or undue
concentration of people?
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.
M
Will the requested zone facilitate the adequate provision of transportation,
water, sewerage, schools, parks, and other public requirements?
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.
RECOMMENDATION: Staff recommends that the Kalispell City Council adopt staff
report KZ-02- lA as findings of fact to:
Ratify actions on ordinances and resolution listed on Attachment A and
incorporated them into the Kalispell Interim Zoning Ordinance by reference here;
Incorporate amendments listed in Attachment B into the Kalispell Interim Zoning
Ordinance making amendments and replacing references to the Kalispell City
County Planning Board with Kalispell City Planning Board, Kalispell City County
Master Plan with Kalispell Growth Policy and Flathead Regional Development
Office with City planning office.
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ATTACHMENT A
ORDINANCES AND RESOLUTIONS ACTED ON SINCE OCTOBER 1, 2001
AND RATIFIED BY ADOTPION OF INTERIM ZONING ORDINANCE
ORDINANCES
NUMBER DATE PASSED DESCRIPTION
1400 10/ 15/01 Initial Zoning Upon Annexation - Glacier Village
Greens
1401
10/ 15/01
Buffalo Commons PUD Amendment
1403
11/ 19/01
Initial Zoning Upon Annexation - Whitefish Stage
Development
1404
12/03/01
DNRC - PUD
1405
11 / 19 / 01
Zoning Text Amendment - Dasen Text
Amendment/Multi-Family Dwellings
1406
11/ 19/01
Zoning Text Amendment - Maximum Height Limit
1407
11/ 19/01
Zoning Text Amendment - Cellular Towers
1408
11/19/01
Zone Change - Health Department
1409
12/ 17/01
Zone Change - Flathead Valley Orthopedic Profit
Share
1410
01/07/01
Initial Zoning Upon Annexation - Northridge Summit
Clean -Up
1411
02/09/02
Initial Zoning Upon Annexation - Gaylon Owens /
Owl Corporation
1412
03/ 18/02
Initial Zoning Upon Annexation - Lisa Wurster
1415
04/ 15/02
Initial Zoning Upon Annexation - J&,F Construction
1418
05/20/02
Zoning Text Amendment/Lot Coverage
1422
06/03/02
Initial Zoning Upon Annexation - Flathead Greens
Dev. / Village Greens Phase XI
1423
06/ 17/02
Zoning Text Amendment/Off Street Parking
0
1424
06/ 17/02
Initial Zoning Upon Annexation - Change/Melvin
Powell / Lot 1 of Western Acres
1427
07/ 15/02
Initial Zoning Upon Annexation - Dennis Osburn
1428
07/ 15/02
Zone Change - Anthony Lupo
1433
08/05/02
Initial Zoning Upon Annexation - Somers Land
Company Ashley Park Phase IV
1434
08/05/02
Initial Zoning Upon Annexation - Ole's Country Store
1436
08/ 19/02
Amending Ordinance 1380/PUD Crosswell
Development
1437
10/07/02
Initial Zoning Upon Annexation - Debbie Willis
1438
9/ 16/02
Zone Change - Duefler
RESOLUTIONS
NUMBER DATE PASSED
4660 10/01/01
4661 10/01/01
4662 10/01/01
4663 10/01/01
4666 11/05/01
4670 11/19/01
4674 12/17/01
4679 02/04/02
4681 03/04/02
4690 04/01/02
NAME
Considering Amending City -County Master
Plan / Wolford
Annexation/DNRC Section 36
Resolution of Intent/Modify or Deny PUD/DNRC
Section 36
Annexation/Glacier Village Greens Phases VI 8, VII
Annexation/Whitefish Stage Development
Condominiums
Resolution of Intent/Northridge Summit Addition
309
Annexation/Northridge Summit Clean -Up
Annexation - Gaylon Owens/Owl Corporation
Addition No. 310
Annexation - Lisa Wurster - Addition No. 311
Annexation - J&,F Construction - Addition No. 312
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4702
05/20/02
Annexation - Flathead Greens -Glacier Village Greens
Phase XI (CR 2002177 09370)
4707
06/03/02
Resolution of Intent/Master Plan
Amendment/Wolford Development
4708
06/03/02
Annexation/Melvin Powell/Addition #314
(CR2002158 14550)
4710
06/ 17/02
Resolution of Intent/Master Plan Amendment/West
View Estates
4717
07/01/02
Adopting Master Plan Amendment/Wolford
Development
4718
07/01/02
FAILED -Rejecting Master Plan Amendment/Wolford
Development
4719
07/01/02
Adopting Master Plan Amendment/West View
Estates
4720
07/01/02
NOT ACTED ON -Rejecting Master Plan
Amendment/West View Estates
4721
07/01/02
Annexation/Dennis Osburn/Addition #315
(CR 2002193 09400)
4735
07/22/02
Annexation/Dennis Carver
4736
08/05/02
Annexation MGS Partners/Addition #316
4739
09/03/02
Annexation/Debbie Willis/Addition #317
4740
09/03/02
Amending Master Plan Amendment/West View
Estates
4743
10/07/02
Rescind Resolution 4717/Master Plan
Amendment/Wolford Development
4744
10/07/02
Rescind Resolution 4719/Master Plan
Amendment/West View Estates
q
ATTACHMENT B
AMENDMENTS TO THE KALISPELL ZONING ORDINANCE RELATING
TO CITY / COUNTY JURISDICTIONS AND RELATED ITEMS
AND RATIFIED BY ADOTPION OF INTERIM ZONING ORDINANCE
Amendments to the Kalispell Zoning Ordinance with the adoption of Kalispell
Interim Zoning Ordinance area as follows:
Ordinance Section
Section 27.01.040
Section 27.02.020
Section 27.02.050
Section 27.03.010(4)
Section 27.03.010(4)
Section 27.21.020(4)
Amendment
Amend Kalispell City -County Master Plan to Kalispell City
Growth Policy
Amend Finance Director to City Clerk and add "or
designee"
Amend Kalispell Zoning Commission to Kalispell Board of
Adjustment
Amend Kalispell City -County Planning Board to Kalispell
City Planning Board
Amend Kalispell City -County Master Plan to Kalispell City
Growth Policy
Delete PUD numbering system
Section 27.22.040(2)(a)(1) Add "Kalispell"
Section 27.22.120 Amend Kalispell City -County Master Plan to Kalispell City
Growth Policy
Section 27.23.060(2)(b) Amend Kalispell City -County Planning Board to Kalispell
City Planning Board
Section 27.28.020(14) Amend Zoning Commission to Board of Adjustment
Section 22.29.010 Amend Kalispell City -County Planning Board to Kalispell
City Planning Board
Section 22.29.030 Delete reference to planning board making
recommendation to Flathead County Board of
Commissioners
Section 22.30.010 Amend Flathead Regional Development Office to
City planning office
Section 22.30.030 Amend Flathead Regional Development Office to
City planning office
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Section 22.30.040 Delete reference to county zoning jurisdiction
Section 22.37.010(50) Amend Flathead Regional Development Office to
City planning office
Section 22.37.010(85) Move "grade" to alpha order and renumber to (102)
Section 22.37.010(140) Amend Kalispell City -County Master Plan to Kalispell City
Growth Policy
Section 22.37.010(169) Delete reference to "Plan"
Section 22.37.010(219) Amend Flathead Regional Development Office to City
planning office
KZTA\02\KZ-02-lA
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