Montana Supreme Court lifts hold on two pro-construction housing laws

The Montana Supreme Court has overturned a lower court order temporarily suspending two pro-construction housing laws passed by the 2023 Montana Legislature, ruling Tuesday that the laws can take effect as a challenge brought by a Bozeman-based homeowners coalition is litigated.

The homeowners, organized as Montanans Against Irresponsible Densification, or MAID, challenged the bills and two other housing measures last year, arguing the Legislature’s efforts to promote infill development by limiting local zoning restrictions amounted to imposing “top-down ‘densification’” that would harm the quality of life they can enjoy in their neighborhoods.

While an initial ruling by Gallatin County District Court Judge Mike Salvagni agreed that the plaintiffs were threatened with immediate harm sufficient to justify blocking the laws while the case is fully litigated, a five-member panel of Supreme Court justices disagreed in a unanimous opinion published Tuesday.

MAID, wrote Justice Beth Baker, “offered only generalized fears and supposition about the potential effects” of the two bills. She also noted that briefs filed by the Montana Legislature and the housing advocacy group Shelter Whitefish had demonstrated that the bills had been passed “to advance the public welfare by addressing the housing crisis” following an “extensive deliberative process” that included the formulation of recommendations by Gov. Greg Gianforte’s housing task force.

MAID members have argued that development made possible under the slate of 2023 housing bills won’t make a meaningful contribution to solving Montana’s housing crisis, which has seen the state’s typical home price, $470,000 as of July, rise by 64% since the start of 2020, according to real estate website Zillow. 

The first of the two previously blocked laws is Senate Bill 323, which would require cities with 5,000 residents or more to allow duplex housing on any home lot. The second is Senate Bill 528, which would require cities to adopt regulations allowing more construction of accessory dwelling units, or secondary housing structures that share parcels with larger homes.

Both bills, which had been slated to take effect at the start of this year, remain in legal jeopardy as further litigation in MAID’s case continues in Gallatin County District Court. The two other bills challenged in that underlying case are the new Montana Land Use Planning Act, the broader land use planning framework that passed as Senate Bill 382, and Senate Bill 245, which requires cities of 7,000 residents or more to allow apartment-style housing in most areas zoned as commercial. All four laws passed last year’s Legislature with bipartisan support.

Senate President Jason Ellsworth applauded Tuesday’s ruling in a statement, blaming “judicial activism” for delaying the implementation of the two laws.

“I encourage the courts to reject future spurious legal arguments from the plaintiffs and let the Legislature’s bipartisan pro-housing reforms begin to chip away at Montana’s housing crisis,” Ellsworth continued. “We must build more affordable and attainable housing for young families, working Montanans, retirees and everyone else struggling with housing costs.” 

MAID’s attorney, Jim Goetz, told MTFP Tuesday that he was “disappointed in the decision.”

“But,” he continued, “we still have the case to try and we’ll proceed with the rest of the case in district court.”

Eric Dietrich is deputy editor for the Montana Free Press, a nonprofit newsroom, and can be reached at edietrich@montanafreepress.org.