Posted by: Patricia Salkin | May 11, 2021

MT Supreme Court approves conditional use permit process to replace planned unit development regulations

This post was authored by Amy Lavine, Esq.

In the 2021 case Hartshorne v. City of Whitefish, the Montana Supreme Court found no uniformity violation in connection with a planned unit development (PUD) ordinanceThe case involved an undeveloped parcel of land that was located in the WR-4 high-density residential zone. The property was also part of aneighborhood plan and PUD overlay that was adopted in 2000 and that provided for up to 10% of the parcel to be developed for commercial use, but in 2018 the city amended the PUD regulations to prohibit non-residential PUDs in primarily residential areas. To preserve its commercial development rights, the property owner then submitted an application to change the underlying zoning regulations so that commercial uses could be approved through a conditional use permit (CUP) process. Some residents saw this as underminingthe city’s decision to repeal the commercial use PUD regulations, but the city adopted the new commercial useCUP ordinance despite this public opposition. Several nearby properties who had opposed the change thenfiled suit, claiming that the commercial CUP ordinance was impermissible spot zoning and that it violated the requirement of uniformity. The court disagreed. It first rejected the spot zoning argument because limited commercial use had been contemplated for the property since 2000 and would also be consistent with the neighborhood plan. With respect to the uniformity challenge, the court first explained that uniformity requirements arose in the context of traditional Euclidean zoning, but that “float zoning” had since emerged in Montana and other states to provide more flexibility to zoning authorities. The court emphasized that that the uniformity statute differentiated “between ‘districts’ and the ‘regulations’ that may be applied to those districts,” and it determined that the “districts” that are subject to the uniformity requirement were the geographic districts identified on the city’s zoning map, not the “use districts” set forth in the city code, whichestablished the applicable regulations. As a final point, the court held that the CUP ordinance established the property as its own “district” because it rezoned the property with a different review process, different permitted uses, and it included its own map amendment, and because the regulations were applied uniformly within this “district” the ordinance did not violate the uniformity statute.

Hartshorne v. City of Whitefish, 2021 MT 116 (5/11/21)

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