Montana Supreme Court said zoning laws meant to ease housing crisis are valid

The Montana Supreme Court has upheld laws passed by the 2023 Legislature meant to help cities address affordable housing shortages through allowing higher density housing in neighborhoods where it would otherwise have been limited or illegal.

The state’s highest court also reversed a ruling from Gallatin District County Judge Mike Salvagni that part of the group of laws violated the state’s constitutional right to public participation and comment, saying Montana lawmakers had allowed for public comment at specific points of the process, upholding citizens’ rights.

The long list of groups participating in the lawsuit either directly or as friends-of-the court demonstrates the intense public interest in the issue centered on two issues of high consequence in Montana — affordable housing and private property rights.

The original lawsuit was brought by a group called Montanans Against Irresponsible Densification which argued to both the district court and the Supreme Court that the laws passed by a bipartisan group of lawmakers undercut property rights and property values in an effort to speed up other residential housing that threatened to undermine property values, for example, accessory dwelling units built as additions to existing property or by converting structures like garages, turning them into apartments.

Originally, Salvagni had said that laws had cut out the public’s right to participate and offer feedback on the potential higher-density housing made possible by Senate bills 528, 323, and 382, passed in 2023. However, the high court’s unanimous ruling, authored by Justice Beth Baker, said case law says that courts must evaluate whether the public has been provided a meaningful opportunity to participate or comment, but can’t pigeonhole or force a certain type of participation. In other words, the courts must safeguard that the public has the opportunity to comment, not prescribe the exact way that public comment must be handled.

Part of SB 382’s requirement is that municipalities above 5,00 residents are required to approve developments without public review or comment when they meet certain requirements.

“The Montana Land Use Planning Act provides for ample public participation throughout the adoption, amendment, and updates of the land use plan, zoning regulation and the subdivision regulations,” the Supreme Court said. “The plain language is clear that continuous and extensive public participation is encouraged at this stage.”

The group MAID also raised equal protection concerns in its appeals, including that homeowners who had covenants and restrictions as part of their neighborhoods were being treated differently than landowners in neighborhoods without similar covenants. The group argued the new laws gave one group an advantage.

The court rejected that argument, though.

“Parties subject to a private restrictive covenant have entered a contract to receive a benefit in exchange for a countervailing burden. The benefit is not the consequence of the unequal protections of the law; it is instead the result of a private contract, carrying both enforceable benefits and enforceable burdens,” the court said. “Put simply, homeowners without such covenants are not treated different because of the statute.”

The court said that Montana’s laws would only trigger equal protection if it treated homeowners with covenants different than each other.

Attorneys with the Pacific Legal Foundation, which entered the case as a friend-of-the-court, was concerned about upholding the property rights of those who had entered into covenants and restrictions. It cheered on the win from the Supreme Court.

“The court reaffirmed a basic principle: Homeowner have the freedom to use their property and to enter into private agreements as they fit,” said attorney David McDonald of the Pacific Legal Foundation. “There is not constitutional right to block your neighbors from building homes that comply with the law. This decision protects both property rights and opportunities to address Montana’s housing needs.”