HELENA — During the 2023 Montana legislative session, lawmakers passed a series of bills overhauling zoning and land-use rules, with the stated goal of addressing the state’s housing shortage. However, a judge has now put two of those bills on hold, as a lawsuit challenging them moves forward.
A limited liability company called “Montanans Against Irresponsible Densification,” set up by homeowners in several Montana cities, filed suit against four new laws. They argued the changes would threaten the character of their neighborhoods.
On Friday, retired District Judge Mike Salvagni, from Bozeman, issued a preliminary injunction preventing the state from enforcing two of the laws, which had been set to go into effect Jan. 1.
“These measures, calculated to increase density in single-family zoned areas of Montana’s cities will result in irreparable injury to the members of the Plaintiff LLC,” Salvagni said in his order.
The two bills covered by the injunction are:
· Senate Bill 323, sponsored by Sen. Jeremy Trebas, R-Great Falls, which requires that cities with more than 5,000 residents allow duplexes anywhere that single-family residences are allowed.
· Senate Bill 528, sponsored by Sen. Greg Hertz, R-Polson, which requires all cities and towns to allow “accessory dwelling units” – smaller residential units on the same lot as a single-family home.
The lawsuit is also challenging:
· Senate Bill 382, sponsored by Sen. Forrest Mandeville, R-Columbus, which establishes a completely updated land-use planning process for certain larger cities, which will have to create a new plan and future land-use map. It applies to cities with more than 5,000 people that are in counties with more than 70,000 people – currently Billings, Bozeman, Great Falls, Missoula, Helena, Kalispell, Columbia Falls, Whitefish, Belgrade and Laurel.
· Senate Bill 245, sponsored by Sen. Daniel Zolnikov, R-Billings, which says municipalities designated as urban areas that have more than 7,000 residents must allow multi-unit housing developments in commercial zones.
Jim Goetz, an attorney representing Montanans Against Irresponsible Densification, said the LLC has about a dozen members, but that hundreds of other homeowners – especially in Bozeman – share their concerns about the impacts this series of changes will have on neighborhoods.
“If it were only duplexes or only accessory dwelling units, it might not be such a big thing,” he said. “But this is a slippery slope.”
Goetz argued the new laws – overlapping and each applying to different municipalities – weren’t “carefully tailored,” and he questioned whether they would really make a significant impact on the availability of affordable housing.
“I recognize Montana's legislative session is 90 days; they've got a lot of business to do, and this is a very complex issue,” he said. “But I think this was way too rushed. And, in a way, I think we'd be doing the state a favor if they went back to the drawing boards and did a more competent job.”
In his order, Salvagni sided with plaintiffs, saying the bills were implemented arbitrarily and would unfairly harm homeowners in existing single-family neighborhoods.
“They dread waking up in the morning, with no notice, and a new, more dense, building is being erected in their family neighborhood,” he said. “As noted above, this injury would be irreparable.”
Salvagni took over the case after the Montana Attorney General's Office, defending the laws in court, moved to substitute the original presiding judge, John Brown.
Each of the new laws passed the Legislature with at least some support from members of both parties. Those who sponsored the bills have sharply criticized the judge’s decision and those supporting the lawsuit.
“They are frankly telling people what they can and can't do with their private property,” said Mandeville.
Mandeville said the plaintiffs in the suit were expressing “NIMBY,” or “Not in My Backyard,” ideas – accepting the need for development, but not wanting it near their own homes. He argued the laws are not going to have the impact on neighborhoods that opponents suggest.
“This is what we call gentle density,” he said. “We're not talking high-rise apartments on every parcel. And no one in these bills or elsewhere is forcing any type of development on these parcels.”
He said the Legislature’s actions were justifiable as a way to address the demand for housing while making sure cities are “growing well.”
“If we continue with single-family zoning on large lots as the only thing that's allowable in some places, all development is going to eat up agricultural property, we're going to sprawl into agricultural areas, cost of services is going to be higher,” he said.
Goetz pushed back against the characterization of the plaintiffs as “NIMBYs.”
“If you lived in a nice house, in a quiet tree-lined neighborhood, and you had a multiplex going up next to you – you can call it NIMBYism, people want to protect their properties,” he said. “It's, in most cases, their biggest investment of their lives, and they located in these areas because they like them.”
MTN asked Attorney General Austin Knudsen's office if they plan to appeal the judge's decision. A spokesperson said they are currently reviewing the judge’s order to determine their next steps.
