City Voters Allowed to Vote Country

Montana AG’s Opinion Highlights Urban-Rural Divide on Zoning

By Greg Lemon, 6-27-08

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. 

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