Different Interpretations: Pandemic-era Legislation Causing Issues With Gallatin County Zoning Enforcement | County
Jerry Johnson was fed up.
He and other neighbors were fed up with the growth of a summer camp in their neighborhood, the Hyalite Heights subdivision.
The united front took the issue to the county. The Gallatin County Planning and Zoning Commission decided that the camp needed a permit to operate in this neighborhood.
The permit was later denied at a planning and zoning commission hearing in February. The neighborhood opposition had won.
A month later, this victory is cut short.
“When my wife got the email from the county, she sank,” Johnson said. “She still doesn’t want to talk about it.”
That email informed the Johnsons that Gallatin County could not enforce the permit denial and the summer camp could continue to operate.
The reason: House Bill 257, passed by the Montana Legislature in 2021.
Tyd Rogers, the summer camp owner, declined to comment.
The law, sponsored by Rep. Jedediah Hinkle, R-Belgrade, was one of several pieces of legislation from the 2021 legislature reacting to the response of local governments and health officials to the pandemic.
The bill prohibited local governments and health officials from passing ordinances or resolutions denying customers access to a company’s goods or services, or requiring companies to do so. It was built to prevent local governments and health officials from shutting down businesses or imposing mask mandates during the pandemic.
But based on Gallatin County’s interpretation of HB 257, the law goes further. The county attorney’s office has found that enforcing zoning regulations in some cases — such as prohibiting a summer camp from operating in a residential area without a permit — is illegal under the law because it would prohibit patrons to use a company.
This interpretation of the law prevents the county from enforcing certain aspects of long-standing zoning laws. The bill’s sponsor believes the county is misinterpreting the law and said zoning was never meant to be affected. Still, the county has closed at least eight zoning compliance cases due to HB 257.
Gallatin County’s interpretation of the law begins at the county attorney’s office.
Central to his approach is whether any of the rules enacted by the county actually prevent a customer from accessing a company’s goods and services.
Gallatin County District Attorney Marty Lambert said the county would review any county office or department on a case-by-case basis.
“The legislature has done what it has done, it can enact new laws,” Lambert said. “And Gallatin County is a local government and will proceed on a case-by-case basis and not make sweeping statements about the scope and reach of the bill.”
So far, zoning is the only area where the county has run into trouble with the law.
Zoning prohibits certain types of uses in certain areas. Gallatin County has 22 different zoning districts with various sub-districts.
For example, the summer camp was in an “existing residential” or RX sub-district. Permitted uses in the sub-district include single family dwellings, agriculture and other uses. Permits can be obtained for conditional uses, such as accessory buildings, such as a garage, a family daycare or a group daycare. The latter two uses allow between three and 15 children to be in a person’s home, per state law.
The language used by the county to close the summer camp case and others is nearly identical. Basically, the county cannot prevent a private company from operating in a location where zoning laws historically did not allow it. In effect, it would force businesses to deny goods and services to customers, or deny goods and services to customers by preventing access to the business.
Sean O’Callaghan, Gallatin County’s planning director, said the law change was “crippling” the planning department on a variety of fronts.
When the law changed, O’Callaghan said the planning department was trying to carry on as usual and would escalate enforcement issues to the compliance office when they arise.
Since then, the situation has changed.
Asking someone for a permit has become more difficult. O’Callaghan said the county wouldn’t tell someone to go through the permitting process if they didn’t need it because of HB 257.
Or if someone applies for a permit and is denied, the county cannot enforce the permit denial.
The summer camp situation is one of dozens of different complaints filed by the Gallatin County Compliance Office over the past year that have either been closed due to HB 257 or are still pending. investigation.
“The general member of the audience who sees something happening, how do we explain to them that our hands are somehow tied in this case,” O’Callaghan said.
Gallatin County Commissioner Zach Brown said the law change has wide-ranging implications. Zoning neighborhoods or districts that restrict vacation rentals like Airbnbs is something the county can no longer enforce, Brown said.
So far, a handful of vacation rental and short-term rental cases have collided with HB 257 in the county.
“The current situation with this law does not allow our staff or local elected officials to succeed,” Brown said.
Other counties, however, do not interpret the law in the same way. Gallatin County Commissioner Joe Skinner presented the issues with HB 257 facing the county during a session of the Montana Counties Association planning committee.
After the presentation, he said, representatives from other counties came up to him saying they “were pretty much unaware of the issue and were waiting to see what Gallatin County would do with it.”
Missoula County has a different interpretation of the bill. County spokeswoman Allison Franz said in an email to the Chronicle that Missoula County’s interpretation of HB 257 does not apply to its zoning codes.
The bill’s sponsor, Rep. Jedediah Hinkle, R-Belgrade, believes the county is misinterpreting the law.
The legislative intent was never to affect zoning regulations, Hinkle said. He cited part of the Montana law regarding a county’s ability to enforce zoning violations on building and structure violations as an example.
Hinkle said that during the drafting process, the variety of laws that a new bill could potentially affect are reviewed and added to the bill as needed. The portion of the Montana law relating to enforcement of violations of buildings and structures has not been added.
If the bill affected a county’s ability to enforce zoning laws, counties would no longer be able to enforce zoning violations for buildings and structures, Hinkle said.
“Since this law was not included in the bill, it shows that HB 257 has no effect on zoning enforcement,” Hinkle said.
County Commissioner Joe Skinner said the Gallatin County Attorney’s Office has been clear about how it interprets the bill.
“Our attorney’s office has been pretty clear that this affects zoning enforcement,” Skinner said.
Hinkle said he was surprised by the county’s interpretation of the bill, particularly because no zoning-related issues were raised by the Montana Association of Counties, a lobbying arm for counties in the Montana, during the legislative session.
Three separate lobbying reports filed by the association showed that HB 257 was not on MACO’s lists of bills to support, oppose or amend.
Shantil Siaperas, a spokeswoman for MACO, said in an email to The Chronicle that the association is aware of the potential unintended consequences of the bill, but could not provide more information.
Eric Bryson, the association’s executive director, did not respond when asked how MACO is approaching the issue.
Kelly Lynch, executive director of the Montana League of Cities and Towns, said her organization has seen no problems with HB 257 in cities and towns across the state.
The organization sees it as a public health bill, not a bill that would interfere with zoning regulations.
Hinkle said he would be happy to change the language of the act in the next legislative session to clarify that the intent was not to affect zoning laws.
But that would leave the county nearly a year to wait for a solution. Before that, an appeal hearing will soon put the county’s interpretation of the bill in the spotlight.
A fight has been brewing since late last year over whether the Corral Bar south of Big Sky can allow people to rent snowmobiles on its property.
Ed Hake, the owner of snowmobile rental company Canyon Adventures, filed a complaint with the county about Corral Bar renting snowmobiles from its premises. However, his compliance file was closed.
The reason for this was that although the Corral Bar is in two sub-districts where renting snowmobiles or other equipment is not considered permitted use, HB 257 prevents the county from preventing the bar from continuing. to rent snowmobiles because it would require “a private company to deny customer access to goods or services,” according to county documents.
Hake appealed the decision and an appeal hearing before the Gallatin County Planning and Zoning Commission is scheduled for May 12.
Robert Baldwin, a lawyer representing the owners of the Corral Bar, said the gist of his argument was that Hake’s actions were an attempt by a competitor to shut down another business.
Baldwin said the law prevents enforcement of zoning regulations.
Both parties submitted briefs before the hearing. John Nesbitt, Hake’s attorney, included a letter in the paperwork he sent to the county saying he called the Montana attorney general’s office about the district attorney’s interpretation of the new law. Gallatin County, Marty Lambert.
Nesbitt wrote that he was “unofficially advised” by Derek Oestreicher, general counsel for the Montana Attorney General, that the changes made by HB 257 do not supersede state zoning laws and their enforcement.
“Mr. Lambert’s interpretation is inconsistent with legislative history, statutory interpretation, and a plain reading of the law,” Nesbitt wrote.
Emilee Cantrell, a spokeswoman for the attorney general’s office, said in an email to the Chronicle that the office had no role in the dispute that the letter was a misinterpretation of the conversation.
She said Nesbitt called and sought an attorney general’s opinion, but was told he did not meet the legal requirements to seek one and would have to pursue his own legal remedy.
While the battle for the Corral Bar still rages on, Jerry Johnson’s fight against summer camp isn’t over.
He said the neighborhood would return to the county to let it be known that he was still touched and upset.
“The people of Montana and the Legislature love to talk about local control,” Johnson said. “Neighborhood disputes are the most local local control and they destroyed all of that, they bypassed all of that.”