Affordable housing bills ‘legitimate government concern,' judge rules

Yahoo

05-03-2025

Montana needs more affordable housing units, and the Villagio, pictured here, and Trinity both opened in 2023, together bringing 402 new homes to Missoula. (Keila Szpaller/The Daily Montanan)
Four bills the Montana Legislature adopted in 2023 in a quest to create more affordable housing in the state will stay on the books — at least for now — despite a lawsuit arguing they are unconstitutional.
In an order Monday, Gallatin County District Court Judge Mike Salvagni said statutes restricting public participation in one bill, Senate Bill 382, are facially unconstitutional.
However, Salvagni denied other requests the court find all four bills unconstitutional.
The bills came out of Gov. Greg Gianforte's housing task force and were sponsored by Senate Republicans last session. They addressed land use legislation, including duplexes, urban infill, and accessory dwelling units, or backyard units, and they had bipartisan support.
'(Monday's) ruling by Gallatin District Court to uphold critical pro-housing reforms is a victory for all Montanans striving for affordable, attainable housing,' said Gianforte, a Republican, in a statement. 'These bipartisan measures … address our state's housing crisis by increasing supply and expanding access to homeownership, a key part of the American dream.'
Sen. Greg Hertz, R-Polson, one of the sponsors, also praised the outcome Tuesday.
'The ruling reinforces the legislature's authority to make common sense solutions to help with Montana's housing crisis,' Hertz said in a text message.
The lawsuit was filed by MAID, Montanans Against Irresponsible Densification, a group of homeowners.
MAID argued the bill package unfairly targets certain towns and counties, cuts the public out of its right to participate, usurps some of the control given to cities and counties by the 1972 Constitution, and treats some property owners differently, such as municipal residents in developments with or without covenants.
The judge protected public participation rights but otherwise said the legislature was properly doing its job.
'Clearly, each of the challenged new laws are reasonably related to achieving the purpose of addressing the affordable housing problem,' the order said. 'Considering them collectively in the overall scheme of the Legislature's purpose does not diminish their Constitutionality. Through the provisions of these laws, the Legislature has enunciated its means for achieving its purposes.
'It is not the Court's function to second guess the prudence of the Legislature.'
Tuesday, Jim Goetz, one of the lawyers who represented the plaintiffs, said he was unsure whether his clients would want to appeal the order. However, Goetz said he was pleased to see the judge protect public participation in his ruling.
'It will force the state to go back to the drawing board and make sure that the public is involved, and that's very important on land use decisions,' Goetz said.
Goetz said some people unfairly dismiss critics of developments as NIMBYs (Not In My Backyard), but he said it's an unfair characterization, and it's also beside the point.
'People have the right to have a voice in developments next door and in their neighborhoods, and that's very important to us,' Goetz said.
The Montana League of Cities and Towns is among four defendant intervenors, and its lawyer could not be reached for comment Tuesday.
Montana has lacked an adequate supply of housing, especially affordable housing, for years, and the bills address different aspects of development.
Senate Bill 382, the Montana Land Use and Planning Act, was a substantial part of it, and it intends to help cities modernize project development.
The order characterized SB 382 as a 'massive overhaul' of subdivision and zoning regulations, and it said the bill defined public participation in site-specific developments — the latter portion which the judge deemed unconstitutional.
Senate Bill 323 requires cities with populations of more than 5,000 to allow duplexes on lots zoned for single family residences. Senate Bill 528 mandates cities allow a minimum of one ADU by right on a lot or parcel with a single-family dwelling.
Senate Bill 245 states cities designated as urban areas and with populations over 5,000 must allow multiple-unit dwellings and mixed-use developments in commercial zones.
'Although the term 'affordable housing' is not used in SB 245, SB 323 and SB 528, the Legislature's concern to allow additional housing in larger municipalities and ADUs in all cities is a legitimate purpose,' the order said. ' … Clearly, housing affordability is a legitimate governmental concern, and the new laws at issue related to that concern.'
The lawsuit was filed over all four bills.
In late 2023, a district court judge temporarily blocked SB 323 and SB 528 from taking effect, but in September 2024, the Montana Supreme Court reversed that order, and the case went back to district court, according to a timeline from the Frontier Institute, which supported the bills.
'Today's order upholding SB 323, SB 528, and SB 245 is a victory for private property rights and the legislature's efforts to address Montana's housing crisis by giving landowners in cities more freedom to build homes,' said Kendall Cotton, president and CEO of the Frontier Institute, who served on the governor's housing task force.
'At the same time, we are disappointed that the court struck down innovative provisions of SB 382 that improve the public input process and speed up housing approvals.'