TLDR; Not really

The language became more explicit and formal, but the fundamental framework is not really different from previous editions of the zoning.

The county’s subsequent development of an STR policy really reflects reading the zoning the way it’s written. Claims of a surprise taking or government overreach are overblown, because there was abundant notice of both the Part 1 Admininstration update the the general BC zoning update.

At most one could say that historic ambiguity was resolved in a way that was unfavorable to short term renters. While a hearing was not strictly required, it might have been better have one anyway, given the controversial nature of the issue.

An Example

The county’s current posted policy is that “If short-term rentals are not mentioned in the specific zoning district regulation, they are not permitted anywhere in that zoning district.”

Let’s wind the clock back a decade or two, to see whether that was true under the previous zoning framework. The 1999 zoning regulation didn’t explicitly mention “Short Term Rentals”. Within the AE and RF subdistricts, there’s nothing really resembling them in the lists of Permitted and Conditional Uses, except the Bed and Breakfast and Guest Ranch classifications, which don’t quite fit.

If the permissibility of an STR were questioned, what would happen? The commission would have made an interpretation, to determine whether the use, “which in the opinion of the Zoning Commission are similar to those listed … may be permitted therein”. It’s hard to say what the commission in 2000 or 2010 might have decided in its finding of similar use, but it might have gone like this:

Is there a definition in the regulation that is similar to short term rental of a single family residence?

Yes – two:

3.52 Overnight Accommodations: Permanent, separately rentable accommodations that are not available for residential use, except for the proprietors of a Bed and Breakfast Inn or Guest Ranch. Overnight Accommodations include Hotel or motel rooms, hostels, cabins, Bed and Breakfast Inns, Guest Ranches, and time-shared units.

3.37 Recreational Housing:
Housing located in the Bridger Bowl Base Area which does not have restriction on length of stay, and includes attached and detached single family units. …

Because these most-similar uses are listed only in the B-districts in the Bridger Bowl Base Area, the commission might have concluded that STRs were prohibited.

On the other hand, the commission could have concluded that short term rentals were incidental uses included within the listed single family residential use, and permitted them.

We can’t know what the commission would have done, because the question never came before it. However, anyone relying on the status of STRs would have been wise to seek the certainty of a similar use finding before risking capital.

Not News

None of this should come as a surprise. There was abundant notice of the zoning process, including the questionable status of STRs, for more than five years before the updates.

BCPOA’s 2016 Short Term Rental survey opened with,

With the emergence of AirBnB and VRBO, this has become a topic of increasing interest in public meetings. The current zoning regulation does not specifically mention short term rentals, except in three specific situations that require Conditional Use permits: Bed & Breakfasts, Guest Ranches, and Recreational Housing in the Bridger Bowl Base Area. Also, the definition of “family” includes up to 4 boarders. Implicitly, short term rentals are not permitted otherwise, unless an applicant obtains a finding of Similar Use from the commission. This has never been tested. Short term rentals are also subject to state licensing for safety and health and tourism tax codes, for which purposes “short term” generally means 30 days or less.

The Bridger Canyon Zoning Advisory Committee opened it’s well-attended 2017 meeting on STRs with the following words in the introductory slide deck:

Status

• • Not a listed use, except in the Base Area
  • Therefore, not permitted without a finding of “similar use” (untested)

Subsequently BCPOA continued to mention the status of the zoning updates and STRs in a variety of emails and the annual newsletter, for example

The other topic that came up several times was short term rentals. The
advisory committee drafted a standard for those, based on input from a
public meeting in 2017, but the county declined to implement it in the
update. So, the situation remains exactly as it has been for years:
short term rentals are not listed or conditional uses in the district,
and therefore not permitted. One could potentially obtain a finding of
“similar use” but this has never been tested before the commission. We
think it would be better to have clear language in the zoning,
regardless of what the policy is.

Not Listed = Prohibited

All Gallatin County districts operate under the same basic framework. The zoning regulation lists structures and uses that are Permitted (available as a matter of right, often without a permit) and Conditional (available after a hearing). Other uses are prohibited, except those which may be found to be similar enough to be included within one of the listed uses (see Similar Use vs. Interpretation of Use below).

Before – 1999 zoning:

The 1999 language is a little fragmented, but contains statements like the following:

17.2 Building Permits.
No structure shall be built, moved or structurally altered until a building
permit has been issued by the Planning and Zoning Commission or their agent. The fee for building permits shall be determined by the Planning and Zoning Commission. Structures less than 100 square feet in size do no require a building permit, but must be in conformance with setback and other requirements.
17.2.1 Building permits shall be issued only for uses in conformance to these regulations, upon approved conditional use permits or variances, and where authorized by the Planning and Zoning Commission.

Notice that it doesn’t explicitly say that uses not in conformance with the regulations are prohibited, but since everything permitted must be in conformance, what would a sensible person conclude?

After the Part 1 Admin update:

Zoning Regulation Conformance. Property owners are responsible for ensuring all
activity within and on their property conforms to this Administrative Regulation and
the applicable District Regulation. No Building, Structure, or land shall hereafter be
used or occupied, and no Building, Structure, or part thereof shall hereafter be
erected, constructed, reconstructed, moved or Structurally Altered unless it is in
conformity with all the Zoning Regulations.

No Building, Structure, or land in any Sub-district may be used for any purpose
unless such Use is listed as a Permitted or Conditional Use in that Sub-district and
approval for that Use is obtained through the proper procedure, or unless such
Use is deemed to be an appropriate Use pursuant to the interpretation process of
Section 3.8 of this Administrative Regulation. All other uses are prohibited unless
otherwise authorized by federal or state law.

The burden of proof is on an applicant to demonstrate that applicable requirements
and review criteria of the Zoning Regulations are met. Where conditions of
approval are attached to any approval issued under the Zoning Regulations, the
failure to comply with any condition of approval is a violation of the Zoning
Regulations.

The language is more explicit, but the effect is not materially different.

Similar Use vs. Interpretation of use

Obviously it would be problematic to have to enumerate every possible use, whether you propose to prohibit or permit the unlisted ones. There will always be boundary cases in need of interpretation. All versions of the zoning have contained an escape mechanism for this.

As above, the new language in the unified Part 1 Administration regulation is more explicit. The Interpretation of Use defines the earlier Similar Uses concept, and provides a process with decision criteria. This provides greater clarity and predictability without making it harder to get such an interpretation.

Before – 1999 zoning:

6.4 Similar Uses:
Uses which in the opinion of the Zoning Commission are similar to those
listed In 6.2 and 6.3 above may be permitted therein.

After the Part 1 Admin update:

3.8 Interpretations. Requests for Official interpretations concerning the Zoning
Regulations, boundaries, and maps shall be made in writing, accompanied by the
appropriate application and fee, and shall be handled as follows:
a. Administrative Interpretations. Interpretations concerning the Zoning
Regulations and maps, except those interpretations listed at subsection (b) or
(c)(vii) below, may be made by the Planning Director and are subject to Appeal
as described in Section 13 of this Administrative Regulation. If the Planning
Director determines the interpretation is of significant public interest, the
Planning Director may refer the request to the Planning & Zoning Commission.
The Planning & Zoning Commission shall consider the request in a public
hearing.
b. Interpretation of Use Classification. If questions arise concerning the
appropriate classification of a particular Use, or if the specific Use is not listed,
the Planning and Zoning Commission shall determine the appropriate
classification of that Use. In interpreting a Use classification, the Planning and
Zoning Commission shall hold a public hearing, consider the recommendation of
any Zoning Advisory Committee, and determine whether the use meets all of the
following criteria:
i. The proposed Use is compatible with the Uses allowed in the Sub-district;
ii. The proposed Use is similar to one or more Uses allowed in the Sub-district;
iii. The proposed Use will not adversely affect property in the neighborhood or
Sub-district or Zoning District; and
iv. The proposed use will not abrogate the intent of the Zoning Regulations and
applicable growth policy or neighborhood plan.

When the zoning updates were essentially complete, we wrote:

Last June the County Planning & Zoning Commission adopted a Resolution of Intention to Amend the Bridger Canyon Zoning Regulations, the first step toward formal consideration of the new zoning that we will propose for the Bridger Canyon Zoning District.

We have near-final drafts on almost all substantive portions of the new zoning regulations that we will propose. These were summarized in last year’s newsletter [possible link] and the drafts have changed little over the past year. (The only substantive changes are to the regulations governing wireless communications services, to conform to revised federal regulations.) A number of factors have delayed completion of the draft, including. some unexpected comments from the County Planning Department. BCPOA’s representatives on the Zoning Advisory Committee are working toward completion, hopefully for presentation to the County this autumn.

Unfortunately, that was four years ago; none of us on the Advisory Committee expected the county to table the updates for so long. After the hiatus, I think it’s understandable that our members have lost track of the substance of the update. With that in mind, here’s a summary of where things now stand – quoting heavily from the last edition.

Background

The update improves the regulations’ implementation of the goals expressed in the 1971 General Plan, and resolves a number of issues that are often needlessly controversial.

The update addresses all areas of the Canyon, except for the Bridger Bowl Base Area, and all topics except administrative procedures. The Base Area will be tackled separately, because its complexity would delay implementation of good progress to date. The administration section is being revised in a separate, county-wide process.

The advisory board has held five public meetings at the fire station community room to share the details with residents and collect input. If you missed those, here is an overview of the proposal.

The update process was started by BCPOA almost twenty years ago, led by Bruce Jodar, but was sidelined in 2006 with the latest Base Area controversy. It’s now led by a Zoning Advisory Board convened by the County Commission, with support from Planning Dept. staff. The rewrite is guided by the General Plan for our district. Changes attempt to implement the plan better, and are careful to strike a balance between private enjoyment of property and preservation of public resources like wildlife and water quality. Wherever possible, standards have been made objective and numerical, to maximize clarity minimize the kinds of uses that require a public hearing for a permit.

Major Changes

There are three major components of the update:

1. The uses permitted in the AE and RF districts, which comprise the vast majority of the canyon, have been updated to eliminate a few obsolete uses, like feedlots, and to recognize new ones, like solar panels. The calculation of lot size and density for subdivision has also been improved. Setbacks from watercourses and other features have been modified, in part to make them more consistent with subdivision regulations

2. The General Standards governing all of the districts have been improved in a variety of ways. The biggest change is the creation of an Accessory Dwelling standard, that replaces the previous options for caretaker residences and guesthouses. This generally represents a relaxation of the previous standards, but there are new provisions limiting the permissible size and number and requiring proximity of accessory dwellings to primary residences, so that whatever burdens these dwellings imposed weigh most heavily on the owners who also benefit from them, and the temptation of separate rental is minimized.

Separate rental units have not historically been legal under the zoning, except by explicit subdivision, and we have preserved that restriction. The board felt that permitting multiple dwelling rentals would constitute an increase in density that could not be squared with the General Plan, and would require more intrusive regulation of other uses in order to mitigate the added traffic, water and other pressures that would result.

3. Administration. The county has created a comprehensive administration regulation that is to govern all citizen-initiated districts like Bridger Canyon. This covers such things as application and appeal procedures and standards for nonconforming uses. This will replace most of the administration chapter in the Bridger Canyon regulation. The intent is to improve consistency and reduce errors, without interfering with the substantive choices in various districts, which are quite diverse. An update to this section is imminent, spearheaded by the Springhill District.

Other standards cover guest ranches (less vague and therefore a little narrower), B&Bs (little changed), accessory buildings (requiring CUPs for very large structures, as often happens now), home occupations, refuse storage and dark skies lighting (modernized).

Omissions

Two sections written by the Zoning Advisory Committee have been left out of this update (against our wishes).

A new section governs short term rentals, which may be permitted as a Conditional Use. The standards seek to preserve the General Plan’s low density and rural character of neighborhoods without unduly impacting reasonable uses.

3. Planned Unit Developments. The PUD was originally conceived as a way to preserve open space and agricultural land in the bulk of the canyon by transferring density to the Bridger Bowl Base Area. Some very nice PUDs have been done, which protect resources and viewsheds through careful design and building envelopes. But along the way, through ambiguous drafting and Base Area developer pressure, the regulation has lost its way, and become at times a density giveaway rather than a fair public-private tradeoff.

When we surveyed the canyon a few years ago, many of you favored getting rid of the PUD and density bonuses altogether. The committee draft did not do this, because we thought it politically infeasible, though it would have made our job easier. Instead, we made the standards for obtaining a PUD more comprehensive, and included objective criteria for obtaining density through transfers or a bonus founded on preservation of functional, contiguous open space. However, getting rid of the PUD, which is either extremely complex, or full of loopholes, may now be a possibility.

The third omitted section was originally intentional: the Bridger Bowl Base Area. No one imagined that it would take a decade to get to this, but it should now be much easier to tackle, with friendly, public-minded parties holding most of the land.

BCPOA will initiate amendments on these three topics if the county does not promptly do so.

What can you do?

We really need these amendments adopted and put to bed, so that we can move on to the critical omissions above.

1. Read the drafts, or at least skim them for topics of interest.
2. Send an email to the Planning & Zoning Commission, expressing support for adoption. (Some style suggestions are at the bottom here.)
3. Come (or Zoom) to the hearing on June 17th and make a comment.

It seems that the Bridger Canyon zoning update is finally back in progress, after a multi-year hiatus. We’ve just received new copies of a complete draft, which we haven’t really had time to review properly. I’ve posted them all at:

https://bczoning.wordpress.com/2021/03/02/march-2021-zoning-draft/

Major changes over the Zoning Advisory Committee’s last work include omission of revisions to the PUD section and dropping the Short Term Rentals section in General Standards (Chapter 15).

In parallel, there has been a county-wide update to the Administrative section of all Part 1 districts. Not all districts have implemented the change; next up is Springhill. They have some objections copied at the link below.

https://bczoning.wordpress.com/2021/03/02/county-wide-part-1-district-administration-update/

On a related note, if you’re rebuilding, or just building anew, we’ve created a FAQ about permits needed and other considerations. It’s under the Bridger Canyon Zoning menu item above.