AG Draft Opinion Growth PolicyDAFT
VOLUME NO.49
OPINION NO.
HELD: 1. After the SB 97 transition clause expired on October 1, 2001, a
"plan" has no further legal effect unless it meets the requirements of
a growth policy pursuant to Mont. Code Ann. § 76-1-601.
2. Zoning regulations lawfully adopted pursuant to master plans,
comprehensive plans 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, Chapters 2 and 3, may not be adopted, amended or revised unless
a growth policy is adopted for the entire jurisdictional area.
3. A municipal governing body may not extend municipal boundaries,
and subdivision review exemptions and benefits provided by SB 97
may not be authorized without a compliant growth policy.
4. 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 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.
5. A growth policy must cover the entire planning board jurisdiction
for zoning adoption, amendments or revision to proceed.
August 23, 2002
Mr. Charles Harball
Acting Kalispell City Attorney
P.O. Box 1997
Kalispell, MT 59903-1997
Mr. Fred Van Valkenburg
Missoula County Attorney
County Courthouse
200 W. Broadway
Missoula, MT 59802-4292
Mr. Charles Harball
Mr. Fred Van Valkenburg
August 23, 2002
Page 2
Dear Gentlemen:
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You have requested my opinion on questions that I have framed as follows:
1. Does a comprehensive plan adopted prior to October 1, 2001, have
any continuing legal effect after October 1, 2001, if it does not meet
the current requirements of Mont. Code Ann. § 76-1-601?
2. If a city or county fails to adopt a growth policy, is it prohibited
from zoning previously unzoned land, re -zoning previously zoned
land, and amending or enforcing existing zoning regulations?
3. If a city or county fails to adopt a growth policy, what annexation
authority or subdivision review is authorized?
4. If a city or county fails to adopt a growth policy, when may an
emergency interim zoning regulation be adopted pursuant to Mont.
Code Ann. § 76-2-206 and § 76-3-306?
5. When a city and county have established a joint planning board,
must a growth policy be adopted for the planning board's entire
jurisdiction in order for zoning decisions to proceed?
In 1999,.Senate Bill 97 amended Mont. Code Ann. § 76-1-601, replacing the terms
master plan, comprehensive plan, and comprehensive development plan with "growth
policy" and specifying requirements that must be fulfilled for a community to adopt a
growth policy. SB 97 also required that a growth policy cover the "entire" jurisdictional
area and that it be reviewed every five years. Additionally, SB 97 substituted the term
growth policy for "plan" throughout the Montana Code Annotated. 1999 Mont. Laws
2708 through -2728.
Pursuant to Mont. Code Ann. § 76-1-103(4), a growth policy is now defined as meaning
and being "synonymous with, a comprehensive development plan, master plan, or
comprehensive plan that meets the requirements of 76-1-601." SB 97 also included a
transition clause as follows:
Transition --applicability. A governing body that adopts a master plan pursuant
to Title 76, chapter 1, before October 1, 1999, may adopt zoning regulations that
are consistent with the master plan pursuant to Title 76, chapter 2, part 2 or 3, until
Mr. Charles Harball' T
Mr. Fred Van Valkenburg e�
August 23, 2002
Page 3
October 1, 2001. The requirements for a growth policy in [Section 8], amending
76-1-601, apply to the adoption of zoning regulations pursuant to Title 76, chapter
2, part 2 or 3, after October 1, 2 00 1.
1999 Mont. Laws 2728.
In addressing the above -stated issues, I must follow the well -accepted principle of
statutory construction that "statutory language must be construed according to its plain
meaning and, if the language is clear and unambiguous, no further interpretation is
required." Dahl v. Uninsured Employers' Fund, 1999 MT 168, ¶ 16, 295 Mont. 173, 178,
983 P.2d 363, 366. If language is ambiguous, however, the legislative history may be
sought to derive its intent. 43 Op. Att'y Gen. No. 37 (1990).
I.
In both subdivision and zoning statutes, SB 97 inserted the term "growth policy" for
master plan, comprehensive plan, and comprehensive development plan. For example,
Mont. Code Ann. § 76-3-210 now enables subdivision review to proceed without an
environmental impact statement if a growth policy is adopted, while Mont. Code Ann. §
76-2-201 authorizes county zoning if a growth policy exists. SB 97 thus standardized
Code language by replacing all references to a "plan" with "growth policy." Pursuant to
Mont. Code Ann. § 76-1-103(4), a growth policy means a plan "that meets the
requirements of 76-1-601," which was amended to include a list of required contents.
The only remaining reference to a pre-SB 97 plan is within the definition of growth
policy itself, and SB 97's transition clause. As noted above, the definition of growth
policy states that a master plan is synonymous with a growth policy, but only if it meets
the requirements of Mont. Code Ann. § 76-1-601. SB 97 explicitly linked the definition
of a growth policy to the list of required contents in Mont. Code Ann. § 76-1-601 as
amended. I am unconvinced by the argument that this language can be interpreted to
mean that a master plan becomes a growth policy if it met the guidelines of Mont. Code
Ann. § 76-1-601 before SB 97 amendments. Such a presumption runs contrary to the
clear language of the amended statute. If any confusion persists, it is clear that the
legislature understood that no master plan in existence would fully comply with the
requirements of SB 97. Revising the Laws Relating to Local Planning and Subdivision
Review: Hearing on SB 97 Before Senate Comm. On Local Gov., 56th Leg. Sess. 9
(Mont. 1999) (statement that no counties would comply 100 percent with this bill).
Mr. Charles Harball
Mr. Fred Van Valkenburg
August 23, 2002
Page 4
Section 36 of SB 97 also references a pre-SB 97 master plan in the bill's transition
clause. The transition clearly allows zoning regulations to be adopted pursuant to a
master plan until October 1, 2001, so long as the plan was adopted before October 1,
1999. However, after October 1, 2001, the requirements for a growth policy under Mont.
Code Ann. § 76-1-601 apply to the adoption of zoning regulations. The plain language of
this transition merely extends the life of an old master plan for the purposes of adopting
zoning regulations. There is no language indicating that the legislature intended an old
master plan to have continuing legal effect after the transition period expired. To the
contrary, the transition explicitly requires local governments to conform to the new
growth policy requirements when adopting zoning regulations after October 1, 2001.
Based on the totality of the SB 97 statutory amendments, I conclude that a
comprehensive plan has no continuing legal effect after October 1, 2001, if it does not
meet the current requirements of Mont. Code Ann. § 76-1-601. After October 1, 2001,
the only mention of a master plan, comprehensive plan, or comprehensive development
plan provided by SB 97 is in the growth policy definition which requires conformance
with Mont. Code Ann. § 76-1-601. There is simply no statutory basis to conclude that
the legislature intended a pre-SB 97 plan to have continuing legal effect when it was so
thoroughly removed from all corners of the Montana Code Annotated.
II.
The above conclusion does not necessarily unravel lawful zoning implemented previous
to October 1, 2001, but merely restricts further planning that is dependent upon adoption
of a growth policy. As stated above, SB 97 amended Mont. Code Ann. § 76-2-201 to
authorize county zoning only if a growth policy has been adopted for the entire
jurisdictional area. Additionally, Mont. Code Ann. § 76-2-304 was amended to require
municipal zoning regulations to be made in accordance with a growth policy. Pursuant to
this clear language, when read in context with the Section 36 transition clause, after
October 1, 2001, no new zoning regulations may be adopted on previously unzoned land
unless an SB 97 compliant growth policy has been adopted.
Similarly, a city or county does not have authority to either re -zone or amend zoning
regulations without an SB 97 compliant growth policy. Before SB 97, amendments and
revisions to zoning regulations had to be made according to a "plan." An absurd result
would be reached if zoning regulations were required to be adopted pursuant to a plan,
but could be amended or revised without adhering to a similar planning document. See
Little v. Board of County Commis, 193 Mont. 334, 353, 631 P.2d 1282, 1293 (1981)
Mr. Charles Harball
Mr. Fred Van Valkenburg
August 23, 2002 AFT
Page 6
policy cover an area proposed for municipal annexation before a municipality can extend
corporate limits.
In summary, SB 97 amendments clearly require a growth policy before certain
subdivision review procedures and city powers of annexation are authorized. As
concluded above, a growth policy requires conformance with Mont. Code Ann. § 76-1-
601 as amended by SB 97. However, the SB 97 amendments to subdivision law nowhere
require a growth policy in order to continue subdivision review — the only requirement is
that a growth policy exist if a city or county wishes to qualify for the streamlined
Processes specifically enumerated by SB 97. Additionally, as noted above, SB 97
explicitly amended Mont. Code Ann. § 7-2-4734 to require a growth policy before a
municipal governing body can annex new territory. I do note, however, that SB 97 does
not require a growth policy for citizen petitioned annexation pursuant to Mont. Code
Ann. § 7-2-4601.
Based on the plain language of these statutes, I conclude that failing to adopt a growth
policy does not hamper subdivision review, but merely restricts potential qualification for
subdivision review benefits and exemptions that are provided by the above stated
statutes. However, SB 97 amendments clearly restrict a municipal governing body from
annexing new territory on its own accord unless a growth policy is adopted.
U
Both municipal and county zoning statutes provide authority for interim zoning
regulations even if the local governing body has not adopted a growth policy and
complied with the statutes enabling permanent county zoning. County interim zoning is
authorized by Mont. Code Ann. § 76-2-206, which provides:
(1) The board of county commissioners may adopt an interim
zoning map or regulation as an emergency measure in order to promote the
public health, safety, morals, and general welfare if:
(a) the purpose of the interim zoning map or regulation is to
classify and regulate those uses and related matters that constitute the
emergency; and
(b) the county:
(i) is conducting or in good faith intends to conduct studies
within a reasonable time; or
(ii) has held or is holding a hearing for the purpose of considering
any of the following:
Mr. Charles Harball
Mr. Fred Van Valkenburg
August 23, 2002 DRAFT
Page 7
(A) a growth policy;
(B) zoning regulations; or
(C) an amendment, extension, or addition to a growth policy or to
zoning regulations pursuant to this part.
Similarly, municipal interim zoning is authorized by Mont. Code Ann. § 76-2-306, which
provides:
(1) The 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.
Although the statutory language differs between the county and municipal statutes, their
commonalities indicate a similar application. Namely, both statutes specify that interim
measures may be adopted (1) where proper zoning procedures have not been satisfied,
(2) some matter of urgency requires zoning to protect public safety, health, and welfare,
(3) the interim measure addresses the urgent matter, (4) so long as more formal planning
processes have been initiated, or will be initiated within a reasonable time. While the
absence of a growth policy satisfies step one of the above application, an interim measure
cannot be implemented unless the remaining three requirements are fulfilled. The
determinative issue of whether interim zoning may be promulgated thus requires analysis
of what constitutes an "emergency" or "urgency" measure.
Although not specifically addressing what constitutes a matter of urgency, 46 Op. Att'y
Gen. No. 5 (1995), is instructive. In this opinion, Attorney General Mazurek held that
Mont. Code Ann. § 76-2-306 imposes various conditions on the use of interim zoning
power, including "the existence of an exigency." Further clarifying the issue, Mont.
Code Ann. § 76-2-304(1) and Mont. Code Ann. § 76-2-203(1) require standard zoning
regulations to be designed to:
lessen congestion in the streets; to secure safety from fire, panic, and other
dangers; to promote health and the general welfare; to provide adequate
light and air; to prevent the overcrowding of land; to avoid undue
concentration of population; and to facilitate the adequate provision of
Mr. Charles Harball
Mr. Fred Van Valkenburg
August 23, 2002
Page 8
A
transportation, water, sewerage, schools, parks, and other public
requirements.
In light of Attorney General Mazurek's opinion, when read in context with the entire
zoning statute, 1 conclude that both "emergency" and "urgency" measures exist if there is
some exigent circumstance impacting the public health, safety and welfare, and zoning is
required to address the exigency pursuant to Mont. Code Ann. §§ 76-2-304(1) and 76-2-
203(1). See Allen v. Flathead Countv, 184 Mont. 58, 63, 601 P.2d 399, 402 (1979)
(recommending that interim zoning be implemented when zoning regulations were
adopted, implemented and relied upon by residents for five years, and then declared
invalid by the court). Thus, interim zoning may be adopted when a community has not
adopted a growth policy so long as all proper 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.
The question of what constitutes an "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. If the legislature had intended this
result, there would have been no need for the transition language they included in the
statute.
IN
SB 97 explicitly amended Mont. Code Ann. § 76-1-601(1) by requiring a planning board
to prepare a growth policy for the "entire" jurisdictional area. Further, Mont. Code Ann.
§ 76-2-201 only authorizes county zoning if a growth policy is adopted for the "entire"
jurisdictional area. Pursuant to Mont. Code Ann. § 76-1-504, a city and county may
adopt a joint planning jurisdiction including area designated both within and surrounding
incorporated city limits. Thus, if a city -county planning board has established a
countywide jurisdiction, I conclude that the plain statutory language requires a growth
policy to be adopted for the entire county before zoning can be adopted, revised or
amended as of October 1, 2001. This conclusion is in line with present Montana case
law. See Allen v. Flathead Countv, 184 Mont. 58, 62, 601 P.2d 399, 402 (1979) (holding
that county zoning authority may only be exercised if a comprehensive plan (now growth
policy) covers the entire jurisdictional area of the county planning board).
Mr. Charles Harball
Mr. Fred Van Valkenburg
August 23, 2002 DRAFT
Page 9
THEREFORE IT IS MY OPINION:
1. After the SB 97 transition clause expired on October 1, 2001, a "plan" has
no further legal effect unless it meets the requirements of a growth policy
pursuant to Mont. Code Ann. § 76-1-601.
2. Zoning regulations lawfully adopted pursuant to master plans,
comprehensive plans 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,
Chapters 2 and 3, may not be adopted, amended or revised unless a growth
policy is adopted for the entire jurisdictional area.
3. A municipal governing body may not extend municipal boundaries, and
subdivision review exemptions and benefits provided by SB 97 may not be
authorized without a compliant growth policy.
4. 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
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.
5. A growth policy must cover the entire planning board jurisdiction for
zoning adoption, amendments or revision to proceed.