Posted by: Patricia Salkin | December 26, 2014

MT Supreme Court Holds City to Was Not Permitted to Enact Building Regulations Under the Guise of a Zoning Ordinance

The City of Helena filed a complaint against owners of property located within a wildland-urban district for violation of an ordinance dictating permissible roofing materials. The owners answered and petitioned for declaratory judgment that the ordinance was a building regulation that City lacked authority to promulgate. The First Judicial Court entered summary judgment for owners, and the City appealed. The relevant portion of the zoning ordinance, states “[s]tructures located within the wildland-urban interface district may not have exposed, wooden roofing materials, whether treated or untreated, and must have noncombustible or fire resistant roofing materials that are rated Class C or higher…”

The court first noted that the primary flaw in the City’s argument was that neither the general municipal zoning authority set forth in §§ 76–2–301, –302, MCA, nor the distinguishing of zoning ordinances within the definition of “building regulations” in § 50–60–101(3)(b), MCA, supplanted the Legislature’s clearly demonstrated intention to occupy this area of the law by enacting a statewide building code and by expressly prohibiting local governments from adopting regulations that deviated from the state code. The City further emphasized the language of § 76–2–302, MCA, which authorizes municipalities to “regulate and restrict the erection, construction, reconstruction, alteration, repair, or use of buildings, structures or land.” Despite this contention, the statute neither mentioned nor authorized municipalities to regulate building materials that are expressly governed by the state building code. Because the Helena City Code expressly limited the materials that may be used in the construction or repair of a building, it exceeded the zoning authority granted to municipalities by statute and trespassed into subject matter that had been made the exclusive domain of the Department of Labor and Industry by the Legislature. The court therefore affirmed in favor of the property owners.

City of Helena v Svee, 2014 WL 6679280 (MT 11/25/2014)

The opinion can be accessed at:{8880136E-565B-485E-B0F7-E437BA7A42EC}&impersonate=true&objectStoreName=PROD%20OBJECT%20STORE&objectType=document

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