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Homeowner group files court challenge against pro-construction housing laws

The lawsuit asks a judge to declare portions of Gov. Greg Gianforte’s signature housing policy unconstitutional

A lawsuit filed late last month by a coalition of homeowners challenges the constitutionality of four bipartisan laws passed by this year’s Legislature in an effort to tackle Montana’s housing shortage by encouraging proactive land use planning and making it easier to build homes in situations where construction has been hampered by local zoning rules.

The Bozeman-based plaintiff group, Montanans Against Irresponsible Densification, or MAID, describes itself as a group of members who live in neighborhoods “characterized by single-family homes, attractive well-maintained yards, and quiet streets.”

The new housing laws, the group argues in the complaint filed in Gallatin County District Court, aim to impose “top-down ‘densification’” that will force them to live in more densely populated areas with larger buildings, more traffic and “any number of other changes that spur uninterrupted development under the guise of affordable housing.”

In an interview, MAID attorney Jim Goetz, himself a prominent resident of Bozeman’s university district, said he agrees the state is short on housing, but doesn’t think measures that try to shoehorn new housing development into existing neighborhoods will do anything to address the problem.

“Don’t put them in beautiful, older neighborhoods,” Goetz said. “Don’t ruin them.”

“It ain’t going to solve affordable housing in any way,” he said.

The state of Montana is named as the sole defendant in the lawsuit. The office of Attorney General Austin Knudsen, which typically represents the state in court, declined to offer substantive comment on the matter Friday, saying it hadn’t yet been formally served.

The office of Gov. Greg Gianforte, whose housing policies have drawn national attention since the laws passed with bipartisan support, provided a brief statement Friday afternoon.

“While the governor’s office generally doesn’t comment on active litigation, the governor recognizes the rising price of housing is straining Montanans, is proud of the pro-housing reforms that are now law, and remains committed to increasing Montanans’ access to affordable, attainable housing,” Gianforte Press Secretary Kaitlin Price said in email.

Housing affordability has emerged as one of the most pressing public issues in Montana in recent years as limited supply and high construction costs have combined with rapid in-migration, particularly during the COVID-19 pandemic. According to real estate website Zillow, the typical Montana home value is now $446,000, up from $277,000 at the beginning of 2020 — an increase that has driven up rents and locked out many aspiring homebuyers.

Gianforte, a Republican, and a bipartisan coalition of lawmakers responded this year by passing a slate of laws intended to ease the housing crunch over the long run by making it easier to build new homes, especially higher-density development inside the boundaries of large cities.

Several of those laws function by reining in city zoning regulations that allegedly drive up housing prices by stifling home construction.

Another, the Montana Land Use Planning Act, which passed as Senate Bill 382, includes provisions reworking the state’s land use planning statute in an effort to focus resident input on high-level planning discussions and make it harder for not-in-my-backyard-style opposition to derail projects that comply with existing growth plans.

The new lawsuit targets SB 382 as well as three zoning bills:

• Senate Bill 245, which forces cities of 7,000 residents or more to allow apartment-style housing in most areas set aside as commercial zones.

• Senate Bill 323, which would force cities to allow duplex housing on any home lot in cities with 5,000 residents or more.

• Senate Bill 528, which requires cities to adopt regulations allowing more construction of accessory dwelling units, or secondary housing structures that share parcels with larger homes.

In their complaint, the MAID homeowners argue that the zoning bills represent a ham-fisted intrusion by the Legislature into municipal government’s traditional control over development policy.

They also argue that the pro-density provisions of the zoning bills are unenforceable in portions of their communities covered by homeowners association covenants with development restrictions.

MAID says that covenants, as private contracts between property owners, can’t be usurped by state law, meaning development stemming from the new laws will be channeled disproportionately into non-covenant neighborhoods — a dynamic that they argue runs afoul of the constitutional right to equal protection under the law.

“Homeowners in Montana have traditionally relied on single-family zoning designations to protect the scale, character and financial viability of their most important investment,” the group’s complaint argues.

MAID also argues that the land use planning act violates the Montana Constitution’s right of participation, which requires government entities to provide the public with “reasonable opportunity for citizen participation” in decision making.

As the bill was under consideration by the Legislature, proponents said it would carve out more opportunity for citizen involvement as communities write forward-looking growth plans, then generally shift the review of growth-plan-compliant projects to an administrative matter handled by staff.

That’s a departure from the current system, whereby repeated public hearings on development proposals can give opponents ample opportunity to rally opposition to slow or scuttle projects they dislike, even when those projects are well within the scope of previously adopted local development goals.

MAID also takes issue with provisions in the land use bill that require local jurisdictions to project future population growth and plan for how they’ll build housing to accommodate it, a requirement the group says reduces public input to “illusory participation” in land use planning.

“SB 382 sets forth a self-fulfilling prophecy, which Plaintff’s members — and cities like Bozeman, Missoula and Whitefish — will be forced to endure without legitimate public participation: Montana’s largest cities… will grow and continue to grow.”

Goetz declined Friday to provide Montana Free Press with a list of MAID’s members. A press release names Bozeman resident Glenn Monahan as the managing partner of the group, which is incorporated as a limited liability company.

In its court filing, MAID says its membership includes homeowners residing in Montana cities including Bozeman, Whitefish, Billings, Missoula, Great Falls, Columbia Falls, and Kalispell.

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