County repeals zoning ban

By NICK GEVOCK, Chronicle Staff Writer

Months of debate over a 13-year-old ban on County Commission-initiated zoning districts ended Tuesday when commissioners threw out the 1990 ordinance in a split vote.

The repeal ends more than a decade of legal uncertainty over whether commissioners can create emergency zoning districts, said Commissioner Bill Murdock, who joined Commissioner John Vincent in voting to overturn the ordinance.

Murdock called the ban "patently illegal" and said it should no longer tie the hands of the commission.

"Interim zoning in certain situations is very important to this county," Murdock said. "You don't need to look any further than the coal-bed methane issue."

State law lays out two ways to create a zoning district: Residents can go through a petition process, or the County Commission can form one on its own.

But in 1990, Gallatin County commissioners passed an ordinance banning so-called "top down" zoning districts coming from the commission.

The ordinance was part of a political compromise struck in exchange for forming the County Planning Board.

When commissioners first proposed in July to repeal the ban, it touched off agitation among property rights advocates. They argued the ordinance was county landowners' guarantee that rules governing land use would never be forced on them. And last week the Planning Board voted 6-to-3 in favor of maintaining the ban.

County Planning Director Jennifer Madgic said board members thought limiting the commission's power was a good idea. However, the board also said it favored the commission having the power to zone an area in an emergency.

County Attorney Marty Lambert told commissioners the zoning ban was illegal the day it was passed because a county commission cannot take away a power the Legislature specifically granted it. And the commission ignored the ordinance a year and a half ago when it formed an emergency zoning district near Bozeman Pass to bar coal-bed methane drilling.

"We've violated our own policy," Vincent said. "We need to take this step to be in compliance with state law."

Mitchell, however, said the county hasn't been sued over the issue yet and therefore she saw no reason to fix something that wasn't a problem.

"I have a hard time understanding why anybody would sue us for having too much public input," she said. "Until it becomes an in-the-court legal problem, I am not going to support the repeal."

Immediately after they repealed the zoning ban, commissioners unanimously added language to the County Growth Policy saying it still wants a petition to create a district. That way the practice is incorporated into policy, but no longer a rule imposed on the commission.

Madgic said that should ease the fears of those who fear the commission will force zoning on landowners. County planning officials are already working with locals to form five separate grassroots districts.

"I don't see things changing," she said. "We're working with citizens and that's going to continue."

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