City Voters Allowed to Vote Country
Montana AG’s Opinion Highlights Urban-Rural Divide on Zoning
An opinion released this week in Montana by the Attorney General attempts to answer, but ends up raising more questions about whether city residents should have a say in rural zoning.
By Greg Lemon, 6-27-08
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Montana’s Attorney General issued an opinion this week that gives voters living in incorporated communities a vote on any countywide referendum, initiative or ordinance – specifically zoning ordinances.
Mike McGrath made the call in a case over who should have been able to vote in 2006 on two controversial Ravalli County zoning ordinances.
According to some, this decision could have far-reaching implications for county residents across the state, because it gives voters living in cities a voice in county land-use regulations. Other say county land-use regulations affect city residents too, so every voter in the county should be able to have a say.
The issue all started in November of 2006, when Ravalli County voters decided on an emergency zoning ordinance and a cap on the size of big box stores. Ravalli County Attorney, George Corn decided that voters in incorporated communities throughout the county wouldn’t be able to vote on the two zoning ordinances.
Corn’s decision riled up city voters, particularly those in Hamilton. At the time Wal-Mart was planning on building a superstore just north of town. The box store size cap was meant to keep their plans for a store at a reasonable size and businesses in Hamilton had rallied quite a bit of local support for the size cap. But when Hamilton voters went to the polls in 2006, they got to vote on the county commissioner race, they got to vote a series of questions about Ravalli County’s form of government, but they didn’t get to vote on the box store issue or the emergency zoning ordinance.
The emergency zoning ordinance passed, but the box store size cap was voted down, opening the door for a Wal-Mart supercenter. (Incidentally, Wal-Mart pulled plans for a supercenter in Ravalli County earlier this year, pointing to shifting priorities within the company.)
Hamilton voters felt disenfranchised, said Hamilton mayor, Jessica Randazzo. After the elections, she heard complaint after complaint about the voting issue. Many people weren’t only miffed about the 2006 election, but also concerned about the future implications, she said.
Ravalli County is working to implement countywide zoning. It’s been a hotly contested issue since it began in earnest late last year. The plan is to have an ordinance in place by November.
And, many people are worried that somehow the countywide zoning plan would make it to the ballot and city residents wouldn’t have a chance to vote on it, Randazzo said.
(Just to be clear, there aren’t plans to put the final countywide zoning plan up for a vote, despite the desires of two of the five county commissioners and a vocal group of citizens.)
So earlier this year Randazzo directed city attorney Ken Bell to submit a request to attorney general Mike McGrath asking for a clarification on who was able to vote on countywide zoning issues.
McGrath’s office issued a draft opinion in late May and a final opinion on Monday, which effectively changes Corn’s earlier opinion.
“Just as county citizens in unincorporated areas are also entitled to vote in state and federal elections, county voters within incorporated areas are entitled to vote in city, county, state and federal elections,” reads McGrath’s opinion.
The decision represents a drastic shift in county land-use law, Corn said. The Montana legislature has an intricate process for adopting county zoning regulations, subdivision regulations and growth policies, which McGrath’s opinion seems to ignore, he said.
“The opinion just wades into this very thought-out and crafted system of law the legislature has enacted, without being aware of all the subtleties of law that have gone into it,” Corn said. “(McGrath) Didn’t bother to get familiar with the legislative enactments regarding zoning and land use law.”
For instance, Montana law specifically indicates residents within incorporated communities can’t vote on county growth policies, he said. Conversely, no incorporated community would allow county residents to vote on city zoning or land-use laws.
“All of a sudden, city residents have a say in county legislative matters which they never had before,” said attorney Myra Shults, who commented on the draft opinion for the Montana Association of Counties.
“(City residents) aren’t affected by county zoning directly and they’re certainly not affected by subdivision regulations,” Shults said. “But they could potentially bring a referendum on county zoning or county subdivision regulations.”
Though the arguments for and against McGrath’s opinion delve into the complexities of Montana law pertaining to the authority of county government, Harold Blattie, MACo executive director, says it basically comes down to the simple idea that good fences make good neighbors.
Cities and counties have long struggled over issues like this, he said. Basically, the county doesn’t want the city telling them how to operate or exerting control of lands in the county and vice versa.
“The county can’t make a zoning decision that affects your property within the city and I think that’s the thing,” Blattie said. “Will it affect it? Yes there may be indirect affect, but your piece of property isn’t affected by the county zoning.”
He points to Missoula County, where residents in the city of Missoula outnumber residents in the county. Under McGrath’s opinion, city residents could put forth a countywide zoning initiative, get it on the ballot and get it passed even if the county residents outside the city voted against it.
“To allow all the electors in a county to vote for an initiative or referendum that only applies within the unincorporated areas of a county defies logic,” wrote Shults in her comments on the opinion.
But Randazzo completely disagrees. The arguments against McGrath’s opinion say that it is essentially a private property rights issue, she said. But it’s really a voters’ rights issue.
At its heart, zoning is a decision by the collective about laws governing private property, she said.
“It’s a collective decision made by everybody who is in the government unit,” Randazzo said.
McGrath’s opinion defines the government unit as every eligible county voter. Just because a voter has the identity as a county resident and city resident, that should not exclude them from voting on countywide land-use issues, she said.
“Ravalli County residents who live in incorporated towns are going to be afforded their full rights as Ravalli County residents by being allowed to vote when there’s an opportunity,” she said. “We will no longer be disenfranchised because we’re a member of two subsets (of voters).”
Blattie said he expects some sort of legislation to come forward in the 2009 legislative session to more clearly define who is allowed to vote on county land-use issues and possibly legislation to reverse McGrath’s opinion.
[End of article]Defies logic? We're talking McGrath here.
If you think THIS is interesting, just consider, the guy is running for Chief Justice of the state Supremes. Scary.
I think it would be cool if residents of incorporated areas were not required to pay county taxes. Or be in any way affected by county laws.
Darned farmers have been running things for too damned long...
Yes, this is scary because it shows how widely the perception of one issue is between urban and rural voters. Urban voters outnumber rural voters, so the urban view usually wins and the rural residents have to accept the consequences.
As a case in point: In 2001 Gallatin County residents (urban and rural) passed an Open Space Bond issue for 10 million dollars - up to 3 million of which was dedicated for a 100 acre Regional Park somewhere in the county. The "in favor" votes were heaviest in Bozeman and Big Sky areas of the county. Rural residents in Belgrade, Manhattan, Three Forks were more often not in favor of the proposal.
A location for the Regional Park was selected (mostly by Bozeman in-town voters). I know because I was there as one of only two people from outside the Bozeman donut area. County residents (even if they voted for the bond and approved of a Regional Park) were angry (and still are angry) when they found out that the 100 acre Regional Park, purchased with County Wide Open Space Bond Money was annexed within Bozeman City Limits and serviced by city water and sewer. (One old lady - a Bozeman resident - was ready to walk out when she found out about this. Others calmed her down and she stayed.)
Furthermore, I have reviewed and commented on the development
plans for the park and was appalled at what I saw. The plans were obviously developed by people who had never managed any land bigger than a city lot.
(1)The planners are not sure what they own. They do not know what limitations are imposed by easements on the property that might affect their development plans.
(2) They have no irrigation plan - source of water, how much they need to keep it green, mainline and lateral locations especially difficult since the park has a large lake and and an amphitheater in the middle. (No, you are not going to irrigate this economically by putting in multiple 35 gallon a minute exempt wells.)
(3) They have no grasp of the equipment necessary to maintian a 100 acre park or space needs to store and maintain the equipment. (No, you cannot mow 75 acres of lawn with a riding lawn mower.)
(4) They have no infrastructure plan. How are you going to get electricity to the concession stands? How are you going to service the toilets, get a mower from one end of the park to another, collect the trash from the concession stands, or provide emergency medical assistance if someone is drowning in the lake? The only means of access to the interior of the park is via the trail system!
(5) The plan only addresses the visitor facilities which are to be paid for and developed by sponsoring groups. No investment in infrastructure first. A hodgepodge of infrastructure to serve facilities as they are developed.
And as a County Taxpayer I am supposed to support this mess with more tax dollars. It's been 7 years and there has been no attempt at an interim management plan to control weeds, vandalism, or work toward resolving any of the above questions. The urban viewpoint that controls the park has no idea anything is wrong! Offers to help select appropriate equipment or address the above concerns are ignored. Rural voters are not going to support another open space bond if this is what we can expect in the future.
As an outside observer in a state where city residents have a say in county votes, I support McGrath.
I'm sure there are many scenarios wherein the urban majority may overrule the rural minority. And it may truly be for the worse.
But, if someone is under the governance of a local government, the idea of democracy guarantees a voice for the resident.
Agricultural property is exempt from the open space bond levy. Yet most of the bond money, and I approve of this idea, goes to preserve agriculture. Some amount, ten or fifteen percent of the total, has gone to parcels with access. There are at least ten times as many people who complain about the access issue. I think most of it should go to preserving agriculture, but the urban versus rural issue's got two sides. Most of the open space money comes from the urban area, and yes, that also means most of the tax base is in the urban areas. Agricultural tax base is five percent of the total, yet here's the city preserving what it can, for exactly the reasons enumerated by the AG opinion.
The situation at the park is pretty much as described by Ms. Duncan. The county bought a park before they had a park board or a plan to manage the park, and it's been whittled down by the commission by several acres given to developers for roads and rights of way.
However, the 100 acre, now 89 acre park, is a huge asset to the community. That decision was a good one, and the first open space bond issue wouldn't have passed without the support of the group in Bozeman who supported the regional park.
County commissioners always act like people who live in Bozeman aren't voters and residents of the county. It's good to have the AG remind them of the opposite.
To goof:
Most county residents do not own agricultural property and are paying toward the Open Space Bonds. They are suburban commuters. Some live in Belgrade, Manhattan, and Three Forks. From out in the County, the Regional Park looks like a "huge asset" for Bozeman and especially for the developer of Baxter Creek subdivision. In the long run they may come to believe it is an asset to them too.
Why can't the Park Commission set up a Technical Advisory Committee to address the problems of the Regional Park before they get any worse? If this is a Regional Park, why can't the experience and knowledge base of both urban and rural residents and existing agencies be brought together to build the park into an asset everyone can be proud of?
Purchasing the park land was only the first part of saving it (which in the long run is undoubtedly a good idea). Purchasing it does not save it "forever" . It cannot be put in the pantry and ignored, like a jar of jam. It's a living entity like a child, that grows, changes, and adapts over time. It is painful for me to watch it slip into delinquency.
Without an interim management plan it will deteriorate to a point that it will be a weed infested fire hazard open to vandalism and liability problems. It's eventual development, operation, and maintenance (if done according to the current plan) will be ineffiecient and unbelievably expensive for all taxpayers. Enough so that the purchase (in hindsight) will look like a very bad idea.
Don't forget that about one-fourth of the land area was donated to the YMCA to develop. Plus, more out for a 911 center and a firestation (which I think are very appropriate uses). But I don' t recall any citizen input on those decisions. What you have is a development plan for about 75 acres., or less.
If rural and urban are both part of this at the voting stage. Why does that deteriorate at the implementation stage?
Wow, this has some huge implications. Putting those all aside for a moment, consider how much revenue generated in a Montana city typically gets spent in the county that surrounds it, and consider all of the services offered to residents out in the county by their city. Yes, those same county residents who bemoan the city as some sort of festering heap of urban mess (including the Ravalli County resident who alluded to the imminent urban-style drive-by shootings in Hamilton) go to the doctor, shop, work and conduct other businesses in the very same city that they complain about bitterly to their other "rural" friends. They complain about the very city, Be it Kalispell, Missoula or Bozeman or whatever, that makes their rural life possible, and most would not be willing to live in a rural Montana county that was not convenient to all those creature comforts the Montana city offers.
Oh yeah, and if your truck has a "back off city boy" bumper sticker(flanked by stickers of Calvin peeing on at least two other brands of truck), I think your city driving privileges should be revoked, or you should at least have to take a long, slow drive through the Bronx some time, and see how you, your truck and your stupid sticker fare there.
I think Mr. McGrath's opinion show exactly the kind of nuanced consideration that we want on the Supreme Court in Montana. I guess it's easy to say that the ruling "defies logic," despite the fact that the logic is clearly outlined in the article itself.
Comment By goof houlihan, 7-04-08Hey Lucinda, et al, I heard that MACO, the Montana Association of Counties, and Ravalli county, is appealing this ruling.
MACO represents all counties, and is paid for with county taxes. I guess they sending a big "up yours" to anyone living in an incorporated town..and doing it with our own money.
In fast-growing counties like Missoula, much (most, even?) of the added impact to exisiting city infrastructure is -- and will increasingly be-- driven by growth out in the county. Yet, the city pays for the added costs to the infrastructure (road expansions, etc). I don't see how the counties can argue that we city folks are not impacted by land use decisions in the county. When a new county subdivision goes in west of Missoula city, we city-dwellers pay for the upgrades to capacity for roads, fire stations, police etc that those new COUNTY residents require be added to system. So, of course urbanites within the county should be able to vote on land use and other regs.
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