A bill moving through the Montana Legislature would end the ability of local governments to reject new subdivisions for devouring precious agricultural land, a direct response to the Missoula development community's claim that forced preservation of ag land infringes on private property rights.
Senate Bill 209, sponsored by Sen. Bruce Tutvedt, R-Kalispell, would strike from the Montana Subdivision and Platting Act a provision requiring governing bodies to consider a subdivision's "impact on agriculture." Over the past three years the Missoula City Council and Missoula Board of County Commissioners have—to the dismay of the development community—used that language to justify rejecting or reshaping subdivision proposals to preserve farmland. Instead, the bill, drafted by the real estate industry, would have governing bodies only consider "the impact of the proposed subdivision on surrounding agricultural operations."
"It's a reaction to people who have had their rights trampled," Tutvedt says, adding that agricultural values like soil quality should not determine whether a subdivision is approved.
The Missoula County Community Food and Agriculture Coalition (CFAC), a quasi-governmental organization sanctioned by the city and county in 2005, has helped foster local decision makers' newfound concerns over the incremental loss of ag land. The group has become an influential voice in the local subdivision review process in recent years by informing governing bodies of subdivision proposals' potential impacts on agriculture.
CFAC argues that the whole point of subdivision review is to ensure that what one person wants to do with their private property doesn't inflict unnecessary harm—in this case, limiting access to local food and open space—on the larger community.
"We're trying to pass on a rich agricultural legacy," says CFAC's Paul Hubbard. "Missoula County residents have stated that as being a key priority of theirs. It says it all over our growth policy documents. Our working farms and ranches are a really important part of our heritage. We want to do what we can to see that working farms and ranches continue to be a part of the landscape and part of our community in the future."
Hubbard says Tutvedt's bill limits the ability of communities to shape their own futures.
The Montana Association of Realtors (MAR) drafted the bill, according to MAR Government Affairs Director Glenn Oppel, to give the review process "more predictability and certainty."
"If the public wants to preserve property, or preserve ag—whatever the public interest is—they should compensate the landowner for the value of that property," Oppel says. "They shouldn't be able to utilize the Subdivision and Platting Act to stop a subdivision that's otherwise complied with the law.
"What we're dealing with here—not just on CFAC's side but on our side as well—is disagreement about how that law is interpreted."
The proposed bill reflects the findings of a recent report commissioned by the Missoula Organization of Realtors (MOR) and Missoula Building Industries Association (MBIA). In it local attorney Bill VanCanagan, who conducted the legal analysis, wrote: "There is certainly no doubt that requiring that land may either be farmed or left fallow and nothing else is un-American and, most likely, unconstitutional." VanCanagan also argued that the Montana Subdivision and Platting Act was never intended to interfere with development, and that zoning is the appropriate tool to guide the preservation of agricultural land. He helped draft SB 209.
MOR CEO Ruth Link says MOR and CFAC can still find common ground on a host of items relating to ag land, but not on the role of subdivision review.
"The one thing [CFAC] won't compromise on—and neither will we—is subdivision review," Link says. "We feel like [agriculture] is a community ideal, and it's a great thing, and we all want locally grown food, but we think there could be a policy that deals with it in a much more cohesive way, and in a more far-reaching way, than the incremental taking of land."
Link says MOR neither supports nor opposes SB 209.
The bill goes further than amending the Montana Subdivision and Platting Act's agricultural considerations. It would also implement a five-day timeline for planning departments to certify applications; force governing bodies to disregard opinions given by federal, state, or local government agencies unless it's supported by a formal written study; and prohibit governing bodies from considering cumulative impacts; among other things. Taken together, it would, according to the Missoula Board of County Commissioners' position statement, "preclude elected officials from doing their sworn duty."
"We have way more issues than just CFAC with this bill," says Commissioner Jean Curtiss.
Sen. Tutvedt finds many of those same items problematic, too. He says he may work to take out most of the provisions Missoula's commissioners find troublesome—except the one limiting agriculture's influence over the subdivision review process.
"It's a basic property right that a person can sell their property for its highest and best use," he says, "and I don't think oversight of whether it's got agricultural value or not is an appropriate determining factor."
The Senate Local Government Committee plans to hold a hearing on Senate Bill 209 on Friday, February 4.