Montana Legislature passes substantial land use reforms to promote housing and planning

The Montana Legislature, not generally known as a bastion of left-leaning principles, has passed several bills designed to promote land use planning and, specifically, the development of missing-middle housing in its cities.

Perhaps the most significant of the bills is SB 382, the Montana Land Use Planning Act. The fifty-two page bill, among other things, will require cities of 5,000 or greater in counties of 70,000 or greater to create land use plans. It sets out processes for public participation in, and the adoption of such plans, and requires plans to address (1) existing conditions and population projections, (2) housing, (3) local services and facilities, (4) economic development, (5) natural resources, environment, and hazards, (6) land use and future land use map, and (7) implementation. It also sets forth a schedule for the review and possible amendment of land use plans, and permits jurisdictions to adopt area plans and issue plans that provide more detailed analyses of any component of the land use plan.

SB 245 will require local zoning in cities over 7,000 in an urban area to allow multi-family housing and mixed-use development in commercial zones that previously only allowed office and retail.

SB 323 will require local zoning in cities of 5,000 or greater to allow duplexes in single-family neighborhoods.

At the same time, the Montana Legislature passed SB 406, preventing cities from adopting building codes more stringent than the state building code.

Minnesota amends code to change variance standard

by Gary Taylor

In the 2010 decision Krummenacher v. City of Minnetonka (our post on the decision can be found here) the Minnesota Supreme Court adopted a restrictive interpretation of “undue hardship” for city boards of adjustment to apply when deciding on variance applications, similar to the interpretation of unnecessary hardship applied by the Iowa courts throughout the years.  Unlike Iowa, however, the Minnesota Legislature quickly remedied the situation by passing legislation that put a “practical difficulties” standard into Minnesota state code (Minnesota House File 52 can be found here).  Under the new law, practical difficulties means (1) the property owner proposes to use the property in a reasonable manner permitted by the ordinance, (2) the owner’s plight is due to circumstances unique to the property not created by the owner, and (3) the variance will not alter the locality’s essential character.  If the variance is granted with conditions, those conditions must be directly related to, and bear a rough proportionality to the impact of the variance.

The difference between “undue hardship” as applied by the court, and “practical difficulties” as passed by the legislature, is the absence of the requirement that the landowner show the property cannot be put to a reasonable use but for the variance.  Again, this is nearly identical to the challenge facing landowners and boards of adjustment in Iowa.  There was a bill introduced in the last Iowa legislative session to put “practical difficulties” in the Iowa Code, but it did not make it out of committee.

Legislation moving Nebraska State Fair to Grand Island was not unconstitutional special legislation

NOTE:  With the start of fall classes the BLUZ welcomes its newest student contributor, Melanie Thwing.  Melanie’s bio appears under “contributors.”  My hazing ritual required her to write a case brief for a case involving my alma mater.  Her sucessful result follows:

by Melanie Thwing

Yant v. City of Grand Island
(Nebraska Supreme Court, May 28, 2010)

The location of the Nebraska State Fair has been set by statute since 1901. Until 2009, Neb. Rev. Stat. § 2-101(3) provided in part**:

“The state fair shall be held at or near the city of Lincoln, in Lancaster County, under the direction and supervision of the Nebraska State Fair Board, upon the site and tract of land selected and now owned by the state for that purpose and known as the Nebraska State Fairgrounds.”

In 2003 at the annual meeting the State Fair Board it was announced that the state fair and the location that housed it were in a financial crisis. The Nebraska State Legislature ordered two studies to determine if any new models for conducting the state fair would help alleviate the problem. One of the options discussed in these studies was relocating the state fair completely. Then, in 2008, L.B. 1116 was brought to the Nebraska Legislature.  It proposed moving the state fair to Fonner Park in Grand Island.  L.B. 1116 was debated at public hearings of the Agriculture Committee, where individuals were allowed to present testimony both for and against the bill.  The bill was also debated on the floor of the legislature.

L.B. 1116 passed.  It permanently moved the state fair grounds to Grand Island, allotted preparation tasks of the site to Hall County Livestock Improvement Association (HCLIA), directed the State Fair Board and the Nebraska Board of Regents to cooperate in turning the current State Fair grounds over to the University of Nebraska.

In 2008 Roger Yant, Brian Von Seggem, and Jerry Christensen filed suit in Lancaster County District Court for declaratory judgment on the basis that L.B. 1116 was unconstitutional because it (1) created special legislation in violation of Nebraska Constitution, Article III, §18, and it (2) it created an improper delegation of authority to spend public tax dollars to HCLIA and the State Fair Board. The District Court denied the request, and the petitioners appealed to the Nebraska Supreme Court.

Article III, § 18, provides that the Legislature cannot pass any special laws that would grant privileges to specific corporations or associations. The Nebraska Supreme Court struck down petitioners’ claim because legislative classification can be valid if it is “…based upon some reason of public policy, some substantial difference of situation or circumstance….” The Nebraska Supreme Court pointed out that the site of the state fair had been in statute since 1901, the State Fair is something of interest to the entire state, and incidental benefits to HCLIA and the University of Nebraska of the relocation do not automatically qualify that statute unconstitutional if it is enacted for public purpose.

The Nebraska Supreme Court also dismissed petitioners’ claims with regard to the improper delegation of authority.  “It is a well-established principle that the Legislature may delegate to an administrative agency the power to make rules and regulations to implement the policy of a statute, and in particular, we have said that delegation of legislative power is most commonly indicated where the relations to be regulated are highly technical or where regulation requires a course of continuous decision.  The Court found the grant of authority under L.B. 1116 to be sufficiently specific in addressing expenditures for carrying out the move and improving the facilities at Fonner Park.  The Nebraska Supreme Court affirmed the decision of the District Court.

**Neb. Rev. Stat. 2-101, as amended by L.B. 1116 can be found here.





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