DOJ: News Release

McGrath: Growth Policy Needed Prior to Zoning/Subdivision Review

HELENA – Local governments are required to adopt a growth policy before adopting new zoning or subdivision regulations, Attorney General Mike McGrath concluded in an opinion issued Thursday.

Kalispell City Attorney Charles Harball and Missoula County Attorney Fred Van Valkenburg requested the opinion, asking a series of questions about how 1999 legislative changes affected comprehensive plans adopted before October 1, 1999, and zoning, annexation and subdivision review decisions made since that date.

Through Senate Bill 97, the legislature replaced provisions for master plans and comprehensive plans with a requirement to adopt a growth policy. Furthermore, the legislation provided that existing master plans would not automatically qualify as growth policies, since they wouldn’t meet the new requirements contained in the 1999 law.

McGrath held that a comprehensive plan adopted prior to October 1, 1999 “has no legal effect as the basis for new local zoning or subdivision regulations unless it meets the requirements of a growth policy” listed in the new statute.

McGrath said, though, that zoning regulations lawfully adopted prior to the enactment of the new law remain in full effect and may be enforced. Before those existing regulations may be “substantively” amended, however, the agency must adopt a growth policy.

After October 1, 2001, cities or counties must have a growth policy that conforms to the new requirements before they can:
•adopt new zoning regulations
•extend municipal boundaries, or
•use the streamlined subdivision review provisions created by the 1999 legislation.

The opinion said that local governments may adopt interim zoning regulations, but only if all four of the following conditions are met:

  • The zoning is urgently needed to protect the public safety, health and welfare.
  • The interim measure addresses the urgent matter.
  • The required zoning procedures have not been implemented.
  • More formal planning processes are underway or will be initiated in a reasonable time.

Rezoning previously zoned parcels and routine, minor revisions that don’t have any impact on growth policy can be made legally without having a new growth policy in place.

In addition, in order for zoning decisions to proceed, the growth policy must cover the entire area over which the planning board has jurisdiction. If, for example, a city-county planning board has countywide jurisdiction, a growth policy must be adopted for the entire county before new zoning requirements may be adopted.

An attorney general’s opinion carries the weight of law unless the Supreme Court overturns it or the legislature modifies the laws involved.

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