Property-rights legislation moves to Senate

By WILLIAM L. SPENCE- The Daily Inter Lake

Property owners would be guaranteed the right to do whatever they want with their property, as long as they cause no harm, under a bill introduced recently by state Rep. George Everett, R-Kalispell.

HB 590 also would impose tougher standards for new neighborhood plans, taking language that had been removed from Flathead County's revised growth policy and turning it into state law.

The Montana House approved the measure 52-47 last week, largely on a party-line vote. It now goes to the Senate.

Critics say the legislation could undermine existing zoning and subdivision regulations and lead to substantial litigation. However, Everett said it was needed to protect property owners from over-eager neighbors and from unnecessarily restrictive regulations.

For example, he said that some communities have zoning regulations that restrict what color people can paint their homes, or prohibit them from installing flag poles.

"People ought to be able to do certain things with their property, as long as they don't cause harm to their neighbors," Everett said. "State law indicates property owners have certain rights, but it never defines them."

His bill includes a definition of property rights, saying they're "protected individual rights associated with property ownership that guarantee a property owner's ability to use property as they wish, as long as the owner causes no harm."

It also requires local governments to clarify, in their growth policies, how they intend to protect property rights. Jurisdictions that have growth policies would need to revise them by July 1, 2008, to comply with the new language.

The Montana Association of Planners opposes HB 590, primarily because of the way the property-rights definition is written.

"We see a great possibility of litigation coming from this," said Andrew Finch, past president of the association. "It's difficult to understand how local governments can 'guarantee' a land use without first considering the impact on the surrounding community. The word 'harm' also isn't defined. I can see copious litigation stemming from that."

Flathead County's zoning regulations, for example, impose a variety of restrictions on property owners, ranging from minimum lot sizes to the type of land uses that are allowed - but which restrictions cause harm and which don't is a matter of perspective.

"Right now, the growth-policy statute tries to balance the rights of landowners with the rights of the neighbors and the community that might be harmed by a proposed use," Finch said. "The basic question is, whose rights are paramount? We'd like to think the statute offers an appropriate balance."

Jonathan Smith, deputy county attorney, said the bill language "appears to have far-reaching effects for zoning."

"The definition certainly goes beyond what property rights are now," he said. "It seems to be a substantial change, and I'd guess it's something that would be litigated."

Flathead County Planning Director Jeff Harris questioned what would happen if a property owner wanted to do something illegal.

"In Alaska, growing marijuana is a property-rights issue. It's a personal right to grow it on your property."

Given such inherent uncertainties, Harris said Everett's bill could result in the "wholesale shift" of land-use decisions from local governments to the courts.

"We think we have a lot of lawsuits now, but there's still a lot of development going on in the county," he said. "With this bill, I think most land-use decisions would end up being made by the courts."

Everett said three attorneys were members of the House Judiciary Committee, which held the hearing on HB 590, and none of them thought the property-rights definition needed clarification. He also doubted the bill would undermine legitimate zoning or land-use regulations.

"I don't see that it would," he said. "You'd still have to conform to water quality and sanitation requirements."

The bill also requires that new neighborhood plans be supported by 60 percent of the property owners and 50 percent of the acreage involved before they can be considered by the local governing body.

That exact language was added to Flathead County's draft growth policy by the county Planning Board. However, it was removed later by the county commissioners; the revised version says "a clear majority" of landowners and acreage should support the plan.

"I grew up in Kalispell and my neighborhood was about six blocks, but some of these 'neighborhood' plans today cover [thousands] of acres," Everett said. "You shouldn't be able to do that unless at least 60 percent of the property owners agree with the plan."

The Montana Association of Planners didn't have a problem with that part of the bill.

"We aren't overly concerned about that," Finch said. "At first blush, it says if a majority of the landowners don't agree with it, you can't approve a neighborhood plan. That doesn't mean they can't revisit the plan, change it and resubmit it."

Reporter Bill Spence may be reached at 758-4459 or by e-mail at bspence@dailyinterlake.com.