Court Injunction on SB 323 + SB 528

District Court Injunction

In early December, a complaint was filed against the State regarding the constitutionality of four bills passed during the legislative session, SB 323 (Trebas), SB 528 (Hertz), SB 245 (Zolnikov) and SB 382 (Mandeville). The City of Missoula, along with the Montana League of Cities and Towns, opposed the first three of these bills but provided extensive feedback and helped lobby for passage of the latter.

On December 29, Judge Salvagni in the Eighteenth Judicial District (Gallatin County) issued a preliminary injunction against the implementation of SB 323 and SB 528. SB 323 required municipalities with a population of 5,000 or more to allow a duplex as a permitted right in all zones where single-family residential is a permitted use. SB 528 required every municipality in Montana to allow an accessory dwelling unit of a certain size as a permitted right on lots zoned for single-family homes. In response to the preliminary injunction:

• If a municipality has not already enacted any changes to their zoning ordinance to comply with these new state laws, they are now held in abeyance, and municipalities can wait for the litigation to play out before taking further action.
• If a municipality has already codified these required changes into its zoning ordinance and this reflects the desired policy of the city or town, then no further action is needed at this time.
• If a municipality has already codified these changes into its zoning ordinance but would not have otherwise made these changes absent the passage of SB 323 or SB 528, and the city does not agree with the policies required therein, the city may take steps to repeal or hold such ordinance in abeyance until the lawsuit is resolved.

As to SB 245 and SB 382, both laws remain effective at this time and those municipalities to which they apply must take steps to come into compliance with these laws as set forth therein. SB 245 has already been adopted by the City of Missoula. We will continue to work towards the implementation of SB 382 through the Our Missoula Code Reform and Growth Policy Update project.

SB 323

The City of Missoula, through local powers, maintains the authority to amend our zoning code in alignment with our adopted growth policy. We’ve assessed the impact of SB323 and determined that the areas of the community where this would most apply to are zoned primarily single-family. The growth policy future land use map would support implementation of the duplex bill in approximately 66% of the affected parcels. We also find differences in which neighborhoods throughout Missoula would be impacted. The areas of the community where this would be supported based on the current land use designations in the growth policy future land use map include neighborhoods in the South Hills, Franklin to the Fort, River Road, and the Upper Rattlesnake. Some of these areas also allow for higher densities and are already taking on new development. The growth policy future land use map, as adopted, would not support implementation of the duplex bill in approximately 33% of the affected parcels. The areas of the community where this would not be supported include the University District, the Lower Rattlesnake, Miller Creek, and portions of Lewis and Clark and Rose Park areas.

While allowing duplexes in all zones is an effective gentle infill tool, our inability to implement this equitably across the community presents serious concerns. As identified in the Equity and Land Use Report, land use code can impact equity for decades to come. As a city, we have committed to remedying inequities that already exist and to ensuring that we do no further harm in the development of new code. In recognition of this, we will be removing SB 323 implementation from our round two code reform changes and instead work towards a comprehensive approach to equitably promote and allow gentle infill across the community through the Our Missoula Code Reform project.

SB 528

The City of Missoula has continued to promote ADU development over the last several years by providing more flexibility in our regulation and code, in alignment with our adopted growth policy. We continue to address barriers to ADU development through programming and code, and plan to incorporate targeted changes into the round two amendments that come directly from feedback from our local development community. This will ensure these changes remove the barriers most present in Missoula. Given that the City of Missoula has already been a leader throughout Montana in facilitating development of ADUs, we will continue to explore code amendments that build on our prior efforts, including the relaxation of size and height requirements. This will be achieved through a variety of locally driven code amendments and not through the implementation of SB 528.

Our Missoula Project Timeline

A key focus of the Our Missoula project is Missoula's housing issues, and the project's end goal, a new unified development code, will have a direct influence on the growth, shape, and affordability of housing. The current code sets limits on the types of housing that can be built in different locations, how large a building can be, and how many homes can be on a given site.

Although these rules were put in place for a purpose, in some cases they are constraining the ability to provide housing. The Our Missoula process includes putting a spotlight on how the current code affects housing development and will result in changes to remove unnecessary barriers and encourage housing that meets high priority needs. The solution presented to this issue through SB 323 is but one approach or tool to addressing this issue, and it will be considered, along with others, through the Our Missoula process to best determine what regulatory updates will be most meaningful for Missoula.