DOJ: News Release

McGrath: Election Mandatory for Building Codes Enforcement Outside City Limits

HELENA – In an opinion issued Wednesday, Attorney General Mike McGrath ruled that real property owners in so-called “donut areas” – the real estate within 4½ miles of the city limits of several Montana cities – may vote in a mandatory election to decide whether to continue building code enforcement in those areas.

Yellowstone County Attorney Dennis Paxinos requested the opinion, asking McGrath’s office to answer a number of questions raised by Senate Bill 242. The opinion notes that this bill was introduced during the 2001 Legislature simply to eliminate the ability of municipalities to enforce building codes in the donut areas around cities. However, as SB 242 made its way through the legislative process, the bill was amended, raising the questions addressed by the opinion.

When the bill was signed into law by the governor on May 1, it created:

  • a new mechanism for counties to assert building code jurisdiction outside city limits and
  • a new kind of election in which only “record owners” of real property in the affected area may vote. These elections would be held to approve new county jurisdictional areas. The bill also requires counties in which existing “donut” areas are located to hold a referendum on the continuation or elimination of the county’s jurisdiction outside the city limits.

The opinion notes that, in order to create a new county jurisdictional area, “commissioners must give notice to the public, hold a public hearing, and accept written protests and receive general protests and comments.” They must then hold an election to approve the new area.

The opinion also notes that the new law is ambiguous on the issue of whether it intended to immediately eliminate existing donut areas, or to continue municipal jurisdiction in these areas pending the outcome of the required special elections. Since no written legislative records exist to shed light on the intent of the legislative committee that amended this section of the new law, the opinion concludes that it is most likely that the legislature intended that existing “donut areas” would continue pending the required election. It would make no sense to conduct an election on continuing a donut area if that jurisdiction had already been eliminated by passage of the bill, the opinion reasons.

On the question of who is allowed to vote in these elections, the opinion concludes that the new law’s reference to “record owner” seems to limit voting only to “persons or entities whose ‘ownership’ interest is recorded in the office of the county clerk and recorder.”

“To hold otherwise,” the opinion states, “would create an administrative nightmare for county election officials, requiring them to investigate…the ownership of every parcel of real property in the jurisdictional area.”

The opinion provides the following guidance on the required elections:

  • People who own more than one piece of property in a donut area are not entitled to more than one vote.
  • Where a piece of property has more than one owner, each owner with a recorded interest has the right to vote.
  • Persons or entities possessing property under a mortgage, trust indenture or contract for deed have the right to vote.
  • To determine who may vote, election officials should use the property records from the date 30 days prior to the election day.

An attorney general’s opinion carries the weight of law unless a court overturns it or the Legislature modifies the laws involved.

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