Dear Senators,

Tomorrow you’re scheduled to hear SB146, which creates a “Private Property Protection Act” that might better be termed the “Eternal Zoning Appeals Act”. In its preamble, it recites the MT constitution’s guarantee of property rights, but neglects to mention any other inalienable rights, thereby elevating property above things like the pursuit of happiness and a healthy environment.

We represent the board of the Bridger Canyon Property Owners’ Association, formed in 1971 with paying membership of about 250 households in a 49,000 acre zoning district in Gallatin County. Our district is citizen-initiated under Part 1, created by ranchers who had the foresight to protect the rural atmosphere, agricultural opportunities, and natural resources of the area. Many of the people now living here were attracted to the district by the protections our zoning regulation affords.

Let us assure you that we have a keen interest in our property rights on what must be half a billion dollars of real estate. But most of us also live and recreate here, and recognize that our property value and quality of life doesn’t end at our driveways and fences. We also cherish the wildlife, clean water, dark skies, and other features that make this some of the most valuable land in the state. Over the decades, Bridger Canyon zoning has enjoyed overwhelming support for its protection of these values.

At our last meeting, our board of 13 members from around the district voted unanimously to oppose SB146, because it makes the zoning we rely on unworkable. The preamble to SB146 claims that government “consumes or otherwise negatively impacts” property rights; we believe this is a false premise, and that regulations can also protect property rights and the other enumerated rights in Article II of the constitution.

Rather than modifying the criteria for amendments in the relevant parts of Title 76, SB146 adds a new layer of complexity by empowering any party to appeal a regulation for 5 years from its enactment. This would further burden the courts, and deny the citizens of the district an effective path to participation. This would also be inequitable as these appeals would be accessible only to those who could finance the lengthy proceedings and attendant risk.

In court, SB146 establishes an extremely one-sided and impractical burden of proof, including that measures must be “least restrictive” and have no “reasonable alternative”. Those principles sound good, but in fact it is impossible to prove the negative in such cases, so this merely involves the court in a set of difficult tradeoffs that are much better handled in a legislative process before a commission. Additionally this language is likely to conflict with similar language in widespread use.

The immediate effect would be to tie the hands of our Planning and Zoning Commissioners, because some tradeoffs that serve the “public necessity” and “general welfare” (current standards) would be precluded by the threat of litigation. In the long run, rather than making these tradeoffs with input from the broad community before the commissioners, the courts would decide what is or is not a sufficiently narrow restriction. This would limit access to zoning change to those with the time and money to pursue an appeal, and would degrade the predictability of land use that has enhanced our property values for over 50 years.

This bill enjoys well-funded support from a small group of Short Term Rental advocates who recently failed in an attempt to amend our zoning regulation, which was widely opposed. The issues were complex, but a substantial contributor was the coalition’s use of fearmongering tactics, which they have recently repeated before the Judicial Committee. For example, they assert that zoning threatens hunting and pet ownership (absurd, precluded by statute). They claim that Gallatin County delegated its powers improperly, when in fact it bent over backwards to extend the opportunity to compromise (met with intransigence). They scorn the residents of our district as out-of-state trust funders, which is both false and particularly ironic, because the sticking point in amendment negotiations was their desire to open up our area to exploitation by unsupervised STRs, owned by remote investors, with internet hosts.

Ironically, another effect of SB146 would be to freeze zoning regulations as they exist today, because any new provision becomes subject to appeal. Gallatin County’s efforts to eventually consolidate 21 Part 1 districts into a simplified Part 2 framework would grind to a halt: no one would want to trade the existing regulations for new ones that would become subject to endless litigation. For Short Term Rentals, this means a new provision to provide limited STRs would be subject to an appeal resulting in unlimited STRs. Testimony in last year’s P&Z hearings makes it pretty clear that a majority of property owners would prefer the status quo (no STRs) over that uncertainty.

In short, SB146 is a poor solution in search of a problem. Gallatin County is not oppressing anyone – we sometimes disagree with our Commissioners, but we feel that we always get a fair and timely hearing. Certainly the county has no enthusiasm for overly-restrictive regulations, because they are expensive and difficult to enforce. Zoning is working just fine as it is.

So, please, oppose SB146, and don’t burn down Montana’s citizen-initiated zoning. It would be an affront to local control, and harm our residents in the long run. It might even literally burn down Bridger Canyon. Last 4th of July I watched fireworks arcing over the forest, launched by clueless visitors to a VRBO in a structure that violated the terms of its conditional use permit. In 2020 we lost 30 homes to the Bridger Foothills fire, and a repeat of that episode would vastly outweigh the dubious benefits of a lengthy appeal process.

Looking beyond our boundaries, Montana cities share our challenges, reaping the benefits of development while managing its negative externalities, with a more complex set of land use tradeoffs. Let’s not diminish their toolkit and the self-determination of their citizens.
Regards,

Tom Fiddaman, 1070 Bridger Woods Rd., Bozeman

Chairman, Bridger Canyon Property Owners Association

with

Cyndi Crayton, Garth Neuffer, Kim Marchwick & Paul Strong, Directors

for the Bridger Canyon Property Owners’ Association board, BCPOA.net

BCPOA commissioned the following analysis of the June 13 version of the proposed Short Term / Accessory Dwelling rental amendment from Erin Arnold, former deputy county attorney for planning matters.

A few things have changed in the latest version, but many of the issues remain.

The Planning Department has posted Staff Reports for the revised Short Term Rental/Accessory Dwelling Rental amendment proposed by the BC Property Rights Coalition. Copies follow below. The hearing will be on Dec. 12th, and the agenda is posted at https://media.avcaptureall.cloud/meeting/8ab2ba61-929f-4704-b2bc-460786bbb44b

The first document is the revised amendment itself, with analysis by planning staff, as well as the letter of submission from the coalition and a lot of historical material. The second document is the staff response to the proposal to continue this application for a few more months, which they oppose.

Normally comment should be directed to planning@gallatin.mt.gov, but in this instance you can send your letter straight to the Planning Director, at

<Sean.OCallaghan@gallatin.mt.gov>

The following table is a quick-reference for comparison of three options:

• The PRC amendment to be considered by the Planning & Zoning Commission on June 13. Update: see also the Staff Report.
• The status quo (no short term rentals outside the Base Area).
• The revised BCPOA draft standard (for discussion – not up for consideration right now).

The following is an excerpt from the 2017 Zoning Advisory Committee public meeting on Short Term Rentals. It’s an AI transcript, so a few words may be off, but the essence is correct I think.

I haven’t cross-checked who’s speaking here, but presumably some combination of Richard Lyon and Tom Fiddaman (Zoning Advisory Committee members and BCPOA directors) and Chris Scott and Randy Johnson (Planning Department staff supporting the zoning update).

But at the same time, since we do have a conditional use permit for Bed&Breakfasts, which you trouble to obtain at one time, there’s some value, I think, having a level playing field for various kinds of accommodations. So you don’t have to serve it. The bootleg layer and a license later competing with one. You’re suggesting that any short-term rentals should fall under conditional use requirement? Well, that’s one proposal. The majority of the draft, for example, is to make a conditional use permit. So that takes us to the options. So maybe I should have covered that for a quick moment at this time.

So at the moment, short-term rentals are in a legal gray area because they’re not a listed use in the canyon. And the way the zoning works is that each district designates uses that are allowed within it. You know, so you can have single family residents and agricultural operations and whatever else. And then there are maybe additional conditional uses for which you need a permit required hearing. So the matter of right uses, you can just go get a land use permit or any other permit at all. You just do it and there’s no remaining standards, but there’s certain knowing components of that. Next there is a conditional use permit. To get that, you need to meet whatever standards are set and then get a permit through a hearing. And the nice thing about that is it creates some visibility of what’s happening and gives neighbors an opportunity to comment on the permit. And the commission can impose additional conditions, you know, restrictions on hours of operation or whatever they think it takes for them to negate impacts on neighbors.

And then anything else is that’s not listed is implicitly forbidden except that maybe similar enough to an existing to a list of use that you get what’s called finding similar use and get permitted that way. So cell towers could come in by finding similar use to a microwave tower. No one has actually done that for a short term rental. So they’re not mentioned, no one to obtain a similar use finding, but it’s not good. They wouldn’t get one if they asked for it.

And to our knowledge, no one has complained about one. That’s right. I was going to follow up with that. I made sure to ask our code enforcers as well. Whether or not we’ve even received a complaint of a short term rent. Yeah, Nicole Olmsted of code enforcement, we haven’t. Other than one that was it was a tourist license that was through environmental health. And I think it was a matter of getting them to get that, but nothing related to zoning. Right. Yeah. So there’s in if you read through the comments that I compiled, there’s a little bit grumbling about things that have happened. But no one has actually filed a zoning complaint over short term rent. And there are typically a dozen or so on VRBO and Airbnb and other places.

So options. We could just be silent on this and continue to ignore it until it’s an easier issue. We felt like that was kind of an abrogation of our responsibilities as the advisory board. We have a session for everyone around the other. So the legal limbo doesn’t continue. We could allow short term rentals without any additional standards or regulation. We could allow it and require a permit, which would at least create some visibility on what’s going on. And I could be either a land use permit, which you can think of going out and filling out a form or could be a additional use permit that they could hear. And consent some standards. And finally, simply, they are [banned] outright, which is what Hebgen Lake have done, except in a commercial district.

Subsequent to this meeting, the Zoning Advisory Committee drafted a fairly permissive STR standard, which became Section 15.16 of the draft General Standards by 2018. BCPOA supported the draft through the 2021 zoning update (and objected when it was not included). If you read the letter in the Chronicle claiming that “the Bridger Canyon Property Owners Association and commissioners decreed that STR rental were BANNED immediately on February 8, 2024”, rest assured that it is pure fabrication. BCPOA didn’t ban STRs, and has no legal power to “decree” anything. From the meeting notes above, and various other proceedings, STR operators were on notice of the dubious legal status long before 2024.