AG Final Opinion Growth PolicySep-261002 09:16
From-tR ATTORNEY GENERAL OFFICE
4064443640
T-166 P.002/011 F-063
Mike McGrath
Attorney General
VOLUME NO.49
ATTORNEY GENERAL
STATE OF MONTANA
Department of justice
215 North Sanders
PO Sox 202401
Helena, MT 59620-1401
OPINION NO.23
ANNEXATION - Requirement for growth policy;
CITIES AND TOWNS - Authority for annexation and zoning with growth policy;
COUNTIES - Authority for expedited subdivision review and zoning based = adoption
of a growth policy,
LAND USE - Requirements for adoption of growth policy;
MUNICIPAL GOVERNMENT - Authority for annexation and zoning with growth
policy;
PLANNING - Requirements for adoption of growth policy,
SUBDIVISION AND PLATTING ACT - expedited review --growth policy requirement;
SUBDIVISIONS - expedited review --growth policy requirement;
ZONING - Requirements for adoption of a growth policy;
MONTANA CODE ANNOTATED - Title 7, chapter 2, parts 2, 4', 43, 44, 45, 46; Title.
76, chapters 1, 2, parts 2, 3; sections 7-2-420.1, -4301, -4401, -4501, -4601, 76-1-103(4),
-107, -504, -601,-601(1), -606, 76-2-201, -203,-203(1), -206, -210, -304,-304(1), -3061
-308(2),-4734376-3-210,-306,-505,-608;
MONTANA LAWS OF 1999 - Chapter 582;
OPINIONS OF THE ATTORNEY GENERAL - 43 Op. Att'y Gen. No. 37 (1990);
46 Op. Att'y Gen. No. 5 (1995).
HELD: 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
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, 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.
TELEPHONE: (406)444.2o26 FAX (406)444.3549 E-MAIL-eonta..-tdoJOstatemcus
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Mr. Charles Harball
Mr. Fred Van Valkenburg
September 26, 2002
Page 2
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 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.
6. A growth policy must cover the entire plamdng board jurisdiction
for zoning decisions to proceed.
September 26, 2002
Mr. Charles Harball
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
Dear Gentlemen:
You have requested my opinion on questions that I have flamed as follows:
Does a comprehensive plan adopted prior to October 1, 1999, 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, in it prohibited
from zoning previously unzoned land, rezoning previously zoned
land, and amending or enforcing existing zoning regulations?
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Mr. Charles Harball
Mr. Fred Van Valkenburg
September 26, 2002
Page 3
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 pmsuant 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?
F-053
In 1999 the Montana Legislature passed a bill generally revising laws relating to local
planning and subdivision review. Montana Laws of 1999, chapt(T 582. 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, chapter 582, section 34.
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 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,
2001.
1999 Mont. Laws, chapter 582, section 36.
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' I'tmd 1999 MT 169,116, 295 Mont. 173,178,
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Mr. Fred Van Valkenburg
September 26, 2002
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983 P.2d 363, 366. If language is ambiguous, however, the legislative history may be
sought to derive its intent. 43 Op. An'y Gen. No. 37 (1990).
To implement the provisions of the act, communities must adopt a growth policy as
defined in Mont. Code Ann. § 76-1-601. For example, Mont. Code Ann. § 76-3-210 now
enables subdivision review to proceed without an environmental assessment if a growth
policy is adopted, while Mont. Code Ann. § 76-2-201 authorizes county zoning initiated
by the Board of County Commissioners if a growth policy exists. In both subdivision and.
zoning statutes, SB 97 inserted the term "growth policy" for master plan, comprehensive
plan, and comprehensive development plan. SB 97 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 requirements for the growth policy.
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 requirements
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 master plans in existence would not
fully comply with the requirements of SB 97. Revising the L %ws Relating to Local
Gov.. 56th Leg. Sess. 9 (Mont. 1999) (statement that no counrias would comply 100
percent with this bill).
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. There is no language
indicating that the legislature intended an old master plan to have vontinuing 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.
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Mr. Charles Harball
W. Fred Van Valkenburg
September 26, 2002
Page 5
Based on the totality of the SB 97 statutory amendments, I conclude that a
comprehensive plan has no continuing legal effect as the basis for new local regulations
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 that 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.
11.
The above conclusion does not 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 without citizen petition only if a growth policy has been adopted.
for the entire jurisdictional area. For municipal zoning, Mont. Code Ann. § 76-24104
provides in pertinent part: "(1) Zoning regulations must 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 unless an SB 97-compliant growth policy has been adopted.
Similarly, a city or county does not have authority to substantively amend zoning
regulations without an. SB 97-compliant growth policy. Before 8B 97, amendments 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
substantively amended without adhering to a similar planning document. See Little v.
Board of County Comm'rs, 193 Mont. 334, 353, 631 P.2d 1292, 1293 (1981) (stating that
'In reaching zoning decisions, the local governmental unit should at least substantially
comply with the comprehensive plan (or master plan)').
As concluded above, a "plan" has no fiuther legal effect unless it meets the requirements
of a growth policy. The clear statutory language of Mont. Code Ann. §§ 76-2-203 and -
304 requires zoning regulations to be made in accordance with a growth policy. Such a
mandate applies to zoning regulations whether they are newly adopted or substantively
amended.
A final part to this question concerns the enforcement of zoning regulations adopted
under a master or comprehensive plan prior to October 1, 2001. Enforcement of zoning
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Mr. Fred Van Valkenburg
September 26, 2002
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provisions is governed by Mont. Code Ann. §§ 76-2-210 and-308(2), which allow
county and municipal authorities to institute proceedings to prevent violation of the.
zoning regulations. Enforcement of regulations is in no way dependent upon the
enactment of a growth policy. Zoning regulations lawfully adopted prior to October 1,
2001, remain in full effect.
Moreover, the statutes do not preclude rezoning. The application of the previously
adopted zoning regulations to a parcel of property does not constitute the adoption of
zoning regulations. Routine, minor revisions that do not have any impact on growth
policy could be made without violating the purpose of the law.
III.
SB 97 made substantive changes in subdivision law. In the Subdivision and Platting Act,
SB 97 changed: (1) Mom. Code Ann. § 76-3-210, which exempts subdivisions from
required environmental assessments if a growth policy exists; (2) Mont. Code Ana. § 76-
3-505,•which provides for summary review of minor subdivisions in Two forms, one of
which requires a growth policy; and (3) Mont. Code Ann.. § 76-3-608, which exempts
both minor and major subdivisions from some local review if a growth policy and other
criteria are established. In each of these sections the statutory language clearly states that
the streamlined processes and exemptions will apply only if a growth policy exists.
SB 97 also changed sections in Chapter 1 of TiTle 76 of the Montmoa Code Annotated to
provide expedited subdivision review if a growth policy is established. For minor
subdivisions, Mont. Code. Ann. § 76-1-107 now enables a plampag board to delegate
advisory responsibilities To staff if a growth policy is adopted. And Mont: Code Ann.
§ 76-1-606 requires that local subdivision regulations be adopted in accordance with the
growthpolicy.
Additionally, Mont. Code Ann. § 7-2-4734 requires that a growth policy cover an area
proposed for municipal annexation before a municipality can extend corporate limits
under the Planned Community Development Act (Mont. Code Ann., Title 7, chapter 2,
part 47). However, the requirement does not apply to annexations conducted under Title
7, chapter 2, parts 42, 43, 44, 45, or 46.
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
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Mr. Charles Harball
Mr. Fred Van Valkenburg
September 26, 2002
Page 7
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, w; 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 annexations undertaken pursuant to Mont. Cade Ann.
§§ 7-2-4201,-Q01,-4401,-4501,or-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
expedited subdivision review that is provided by the above -stated statutes. However,
proposed annexations under the Planned Community Development Act (Lyra must
conform to a growth policy.
PW
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 adapt 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:
(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 Ana. § 76-2-306, which
provides:
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Mr. Charles Harball
Mr. Fred Van Valkenburg
September 26, 2002
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(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 safely, 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 Gentaal Mazurek held that
Mom. 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, Morn.
Code Ann: §§ 76-2-203(1) and-304(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
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, I 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. §§ 76-2-203(1) and
-304(1). See Allen v. Flathead County, 184 Mon. 58, 63, 601 P.2d 399, 402 (1979)
(recommending that interim zoning be implemented when zoning regulations were
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Mr. Fred Van Valkenburg
September 26, 2002
Page 9
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 legislidure had intended this
result, there would have been no need for the transition language they included. in the
statute.
V.
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 areas designated both within and
surrounding incorporated city limits. Thus, if a city -county planning board has
countywide jurisdiction, I conclude that the plain statutory language requires a growth
policy to be adopted for the entire county before zoning can be adtipted. This conclusion
is in line with present Montana case law. See Allen v. Flathead l oun 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).
THEREFORE IT IS MY OPINION:
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 Mont. Code Ann. § 76=1-
601.
Sep-266=2002 09:10 From -MT ATTORNEY GENERAL OFFICE 4084443549 T-166 P-011/011 F-053
Mr. Charles Harball
Mr. Fred Van Valkenburg
September 26,2002
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2. Zoning regulations lawfiilly 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,
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 Art 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.
S. 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 aad welfare; the zonitig
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.
6. A growth policy must cover the entire planning board jurisdiction for
zoning decisions to proceed.
Very truly,
�� �VJQ�GRATH
AttorneyGeneral
�..