Montana Supreme Court upholds development, zoning reform laws passed in 2023

The Montana Supreme Court has upheld several laws related to a raft of 2023 bills intended to spur development in the state’s bone-dry housing market.

A homeowner group called Montanans Against Irresponsible Densification (MAID) challenged the constitutionality of bills that largely set out to remove zoning restrictions on new housing development, such as accessory dwelling units and duplexes, calling those policies “top-down” measures that could impact the quality of neighborhoods.

The organization grounded its challenge on public participation requirements in the Montana Constitution, and the lawsuit somewhat dampened the reforms that supporters including Gov. Greg Gianforte had heralded as a meaningful response to the state’s housing crisis, even dubbed by one national news outlet as the “Montana Miracle.”

But the Supreme Court was unanimous in its March 17 decision in finding that Senate Bill 382’s changes to the public participation process — moving that component earlier in the development process — did not violate those requirements.

Justice Beth Baker, authoring the majority opinion, said the Constitution grants the Legislature the authority to provide for the public’s right to participate, which demands notice and a reasonable opportunity to do so. In this case, the court found that the Montana Land Use Planning Act (MLUPA) created by the Legislature in 2023 met both of those requirements.

“We may not dictate the process that the Legislature enacts to implement public participation when it is acting within its constitutional authority,” Baker wrote. “… The MLUPA provides for ample public participation throughout the adoption, amendment and updates of the land use plan, zoning regulations and subdivision regulations.”

The decision reversed the district court judge’s earlier decision on the public participation matter, but also affirmed the that judge’s ruling that the housing reforms contained in the bills did not violate the right to equal protection.

The bills MAID challenged in 2023 include:

• Senate Bill 528, which required all municipalities adopt regulations to allow a minimum of one accessory dwelling unit on a lot or parcel that contains a single-family dwelling.
• Senate Bill 323, which required cities with a population of 5,000 or more residents to allow duplexes where single-family dwelling is permitted.
• Senate Bill 382, which created the MLUPA for cities of 5,000 or more residents in counties with a population of 70,000 or more. The Act created substantial changes to communities’ subdivision and zoning regulations, as well as long-range community planning.

Several groups, including the Montana League of Cities and Towns, and Shelter WF, an organization from Whitefish focused on housing affordability, joined the case as intervenors to defend the laws alongside the state. Meanwhile, Flathead Families for Responsible Growth and Better Bozeman Coalition filed briefs against the the laws. By the time the Supreme Court issued its opinion last week, 22 attorneys were listed on the document attached to nine different parties, including those who joined the case.

The biggest change to the public participation part of the process in the name of streamlining was moving the period for public comment earlier in the development stages of the land-use plan, rather than during site-specific development. Public comment is also allowed in SB 382 when site-specific developments deviate from the land-use plan.

“Because the Legislature has ‘provided by law’ a detailed provision for notice and public participation, we conclude that MAID has not met its heavy burden to show that Senate Bill 382 is unconstitutional in all of its applications,” Baker wrote.