Gutting local zoning codes won’t fix the housing crisis

Now that Montana has finally figured out it has a serious housing problem, “housing experts” have come out of the woodwork to tell us all how to solve it. And predictable, when there’s a problem to be solved, some of these “experts” attempt to exploit the problem by using it to advance their political agenda.

The March 5 edition of the Daily Inter Lake included an article by the Montana Free Press that described a “study” produced by the Frontier Institute that claims if more multi-family housing were built in Montana, the result would be a greater supply of housing for those with low and middle incomes.

That statement is probably true as far as it goes. However, it would be reasonable to expect that a study of what prevents more multi-family housing from being constructed in Montana cities would examine all of the factors that affect the production of multi-family housing; factors such as financing, the cost of building materials, land costs, supply chain issues, labor shortages, transportation and other infrastructure needs, and return on investment. The “study” makes no mention of how to keep any additional housing affordable to the local workforce in perpetuity.

Still, even with little or no discussion of these factors, let alone any meaningful analyses, this “study” identifies its villain and its name is zoning.

To be fair, the Frontier Institute, which the article describes as a “Republican-aligned Montana think tank” doesn’t use the term “study” to describe its report titled, The Montana Zoning Atlas. And that’s a good thing because it wouldn’t pass muster as any kind of impartial or unbiased study.

For one thing, the report uses loaded terms that are specifically intended to evoke an emotional response from the reader. To describe single-family zoning districts, which every community has, the report labels them “Exclusionary Single-Family” districts. In professional community planning and zoning administration “exclusionary zoning” is a term used to describe an entire zoning code or sets of codes and policies that, implicitly or explicitly, seek to prevent people of certain races, ethnicities, or income levels from purchasing homes in certain neighborhoods, or in some cases, keep them out of the community entirely. That practice, where it did exist, began being struck down by the courts in the 1950s and 1960s, and is not a part of ethical planning practice today.

Even if the phrase were being used to describe areas where only single-family homes are allowed, that too would be inaccurate. For example, in addition to single-family homes, Whitefish’s WR-1 single-family zone allows home occupations, manufactured home subdivisions, and daycare facilities for up to 15 children. With a conditional-use permit, it allows accessory residential units, bed and breakfasts, churches, larger daycare centers, “dwelling groups or clusters” and certain types of “community residential facilities,” such as group homes for the developmentally disabled. That is hardly an Exclusionary Single-Family district by anyone’s definition.

Another biased and loaded term is use of the word “penalized” to describe when something other than a single-family home is allowed in any zoning district through a conditional-use permit. This permit is extremely common in zoning codes and almost every zone contains both a list of allowed (by right) and conditional uses. Some conditional uses are allowed through an administrative CUP, which doesn’t even require a public hearing.

The very idea of a conditional use is that under certain conditions, a use that may not otherwise be allowed in a particular zone may be found to be compatible and complementary to uses allowed by right. Therefore, the CUP process is actually a bonus, and not a penalty at all.

The same applies to planned unit developments. In most zoning codes, a PUD gives the applicant an opportunity to establish a land use that would not ordinarily be allowed in a particular zone. For example, multi-family developments are often allowed in single-family zones through a PUD. In addition, PUDs often have density bonuses associated with them, as well as setback, height, and other variances to take better advantage of any density bonus. And so, PUDs, like CUPs, are a bonus to the developer, not a penalty.

Authors of the Montana Zoning Atlas have included a set of interactive maps that they claim demonstrates how certain communities exclude multi-family housing. They have titled the maps “How Regulations Exclude” and offer the statement, “Whitefish is a prime example of how Exclusionary Single-Family Zoning practices and Minimum Lot Area Requirements stifle affordable multi-family housing development.”

However, this is not confirmed by any comprehensive or even meaningful analysis. In fact, in the case of Whitefish, the interactive maps are not even consistent with actual city zoning maps that are readily available online. Plus, it is difficult to compare maps because the interactive maps don’t display street names.

The Frontier Institute report also contains a statement that “Exclusionary Single-Family Zoning can either outright prohibit multi-family homes or it can penalize multi-family housing by conditioning approval on public hearings, special requirements or a long and costly discretionary permit process.”

This too is loaded language, mainly because the public hearing (at least one for a PUD or CUP), the “special requirements” (conditions of approval), and the discretionary permit process are all part of one application and one PUD or CUP review procedure, and do not constitute separate steps under most codes.

While the study’s authors have identified public hearings as part of the multi-family housing “penalty,” they actually serve a legitimate public purpose. Open, public hearings before the planning board or governing body allow residents of the surrounding neighborhood to participate in the governmental decision-making process. It also allows them the right to lawful assembly and freedom of speech, all provided in the First Amendment to the Constitution. Public hearings also provide the right to procedural due process guaranteed by the Fifth and 14th Amendments. I suspect the authors are at least somewhat familiar with the Constitution, but they do not appear to have connected its provisions and principles to local land use decisions.

In conducting their analysis, the authors examined land in the communities of Whitefish, Bozeman, Missoula, Kalispell and Helena. However, they only considered land zoned residential, and therefore overlooked the fact that significant numbers of multi-family units are developed in commercial zones.

For example, Missoula’s code allows multi-family buildings by right in all six of their commercial zones, Neighborhood Business all the way up through the Central Business District.

Whitefish allows multi-family buildings in their WB-2 Secondary Business zone, and currently has hundreds of multi-family units in this zoning district on the city’s south side. In addition, many more can be found in the WR-1 Single-Family district, having been approved through the PUD. In the Frontier Institute report, the WR-1 is labeled “Exclusionary Single-Family” zoning. These are real-world, actual units on the ground (a few are still under construction), but because they were developed on land zoned something other than residential, their mere mention apparently did not meet the Frontier Institute’s purpose or message.

Again, the article describes the Frontier Institute as Republican-aligned. This is evident when you visit their website and see that much of their material, especially about housing and regulations, is authored by Montana Republican legislators. The Institute is a 501.c.(3) that does not disclose its financial supporters, and that alone may be all we need to know about them.

However, Montana does need additional housing, and construction has not kept pace with demand. But gutting our local zoning codes in hopes of producing more market rate multi-family units that still won’t be affordable to the local workforce, will not solve the housing problems now faced by Montana communities.

Robert Horne, Jr. (Bob) is a 17-year resident of Whitefish. He holds a graduate degree in urban and regional planning and has practiced community planning for over 40 years in six states, but mostly in Montana. He is now retired and serves as a volunteer on the city of Whitefish’s Workforce Housing Strategic Plan Committee.