Townhouse Law or Zoning?

Townhouse? Isn’t that just a type of structure? Not anymore, it can now be used as an exemption to the long, unpredictable, and often expensive subdivision process.

The laws regarding this exemption are extensive and tedious to read so are paraphrased in some cases below for brevity. For more detail or to view the full laws, click HERE.

In 2011, the state legislature passed House Bill #460 which amended Montana Code Annotated (MCA) 70-23-102(14) Unit Ownership Act – condominiums andTitle 76 Chapter 3 Local Regulation of Subdivisions, MCA (detailed information available HERE). The amendment allowed fee simple single unit home and duplex development to occur without subdivision review in the same way that traditional condominium projects do not require subdivision review. “‘Townhome’ or ‘townhouse’ means property that is owned subject to an arrangement under which persons own their own units and hold separate title to the land beneath their units, but under which they may jointly own the common areas and facilities.”

76-3-203. Exemption for certain condominiums is the section that is being used most often to create condominiums, townhomes, or townhouses as they are within incorporated cities and towns and are therefore exempt from subdivision review if the proposal is in conformance with local zoning regulations.

Then we must look at the legislation that enables zoning to see if there is a problem. Through a public process; MCA 76-2-304 lays out the criteria and guidelines for zoning regulations. They must be made in accordance with a growth policy and be designed to secure safety from fire and other dangers; promote public health, public safety, and the general welfare; and facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements.

In the adoption of zoning regulations, the municipal governing body must also consider the following provisions: (a) reasonable provision of adequate light and air; (b) the effect on motorized and non-motorized transportation systems; (c) promotion of compatible urban growth;(d) the character of the district and its peculiar suitability for particular uses; and (e) conserving the value of buildings and encouraging the most appropriate use of land throughout the jurisdictional area.

“OK – so what’s the big deal?” – using the state law, it really should not be a problem to create townhouses as defined in the new law if they comply with zoning. Many times, the state laws operate in somewhat of a vacuum based on general practice and therefore must remain relatively simple and to the point. This allows each community to deal with the issue separately and to meet its local needs.

The City of Missoula is embracing the opportunity to provide efficient housing and adapting to the reality that simply meeting the zoning code is not sufficient for community needs. They recently amended the Zoning and Infrastructure codes to allow the ability to review projects that are larger in nature and that were not contemplated when the zoning codes were originally written since the Townhouse law did not exist then. The new rules add protection of natural resources, the creation of recreation spaces, and a public review process that is more streamlined than a subdivision. Territorial-Landworks, Inc. can provide you with a copy of the up-to-date version, upon request.

The reality, however, is that given the right economic situation, the same housing styles as presented with the townhouse projects can occur as rentals or condos with no additional review. It may be that in the future we will embrace the option to evaluate comprehensive zoning that does allow housing, so long as it complies with zoning. If zoning contemplated the creation of lots or units or townhouses, then the development community, as well as the existing citizens, would have clearer expectations.

As is the case with many changes in our world, compromise is sometimes necessary to achieve new and innovative ways of providing housing.

by Jason Rice, P.E., CEO