Last Monday, Mike McGrath, the Montana Attorney General issued an opinion holding that the “qualified” voters for purposes of county zoning regulation initiatives effective in all unincorporated areas of the county are all of the residents of the county, including those who reside in incorporated areas (e.g., a city). The question was presented to the Attorney General by the Hamilton City Attorney (located in Ravalli County) following the adoption of an interim resolution by the County Board of Commissioners in 2006 that placed a cap of 60,000 square feet on “large scale retail sales and retail service establishments” in all of the unincorporated areas of the County, and two subsequent citizen-sponsored zoning initiatives – one seeking to repeal the resolution and the other seeking to adopt zoning regulations limiting subdivision density to one residence per two acres for all unincorporated areas in the County. The County Attorney had concluded that only those who resided in the unincorporated areas of the County could sign the petitions and would be able to vote on the initiatives.  The City of Hamilton disagreed with the County Attorney’s opinion and argued that all county residents have a right to vote on county zoning initiatives, including those who reside in incorporated areas.

 

Reading the language of the State Constitution and subsequent legislative enactments that refer to qualified voters as residing in “each local government unit”  or “the local government,” the Attorney General concluded that the “qualified voters” for county-wide zoning initiatives include all county residents otherwise eligible to vote, including those residing in incorporated areas.  Although the County pointed to the fact that their authority, and hence jurisdiction of a zoning initiative, is limited to the unincorporated areas; and that the City only has jurisdiction to enact zoning regulations for its own incorporated area, and not for land outside of its jurisdiction, the Attorney General said that “even though the incorporated  voters of Ravalli County could not effectuate zoning regulations in unincorporated areas via their city government, they are entitled to vote on zoning initiatives within the power of the county government because they elect the board and because they could be affected by zoning regulations.”  The Attorney General distinguished the State statute dealing with “growth policies” which limits those who can vote on them to qualified electors of the area covered by the growth policy, as well as other specific regulations that impact land use, by concluding that the legislature chose a limitation in these areas, but that the nature of the general initiative provisions for zoning purposes is more inclusive.   

 

In avoiding the public policy ramifications of this opinion, the Attorney General noted that “Whether the Legislature should limit qualified voters for county-wide zoning initiatives in a similar manner is, of course, a question more properly directed to the Legislature.”

 

52 Op. Mt. A.G.6 (6/23/2008 ).

 

The opinion can be accessed at:

http://www.doj.mt.gov/resources/opinions2008/52-006.pdf

 

For a news account discussing the issues raised by this opinion see:

http://www.newwest.net/topic/article/city_residents_can_vote_on_county_issues/C35/L35

 

Thanks to Phyllis Myers for bringing this opinion to my attention.