What should carry more weight in matters of land use: the number of landowners or the amount of land owned? That's the question posed by Missoula and Gallatin counties in lawsuits seeking to have Montana's "protest provision" declared unconstitutional. The provision gives landowners with 50 percent or more of the private land in a planning area veto power over land-use regulations.
A similar case in South Dakota suggests the counties will prevail. Courts rejected that state's protest provision years ago because the statute allowed for an unconstitutional delegation of legislative power.
If that reasoning translates to Montana, no private landowner would be affected more than Plum Creek Timber, the largest private landholder in the state (and the country). That's why Plum Creek helped draft Senate Bill 379, which is quickly moving through the Montana Legislature. It would only go into effect if the courts take away Plum Creek's ability to veto zoning. The bill's language would be constitutional because, unlike South Dakota's law, in the opinion of Missoula Deputy County Attorney James McCubbin, it includes a provision allowing a supermajority of county commissioners to override the protest.
But the bill wouldn't just preserve the protest, it would make protests easier to invoke by lowering the protest's land ownership requirement to 40 percent. And its override provision, in the view of Missoula's commissioners, is much too "onerous." Missoula is among several counties around the state asking its delegation to oppose the bill. It echoes the Montana Smart Growth Coalition, which says "SB 379 would make the only tool counties have to manage growth almost impossible to use."
The bill passed the Senate last month, and the House amended it before passing it on Monday, sending it back to the Senate.
If it becomes law, its effects might first be felt in the community of Seeley Lake. Last fall, Missoula commissioners approved the Seeley Lake Regional Plan, a years-in-the-making growth policy that Plum Creek—which owns 83,000 acres in the area—opposed.
"It would be inequitable at best, and irresponsible at worst, if SB 379 were to become law," says Missoula County Rural Initiatives Director Pat O'Herren. That, he says, could "result in the inability of these landowners to protect their property values" through zoning.