States increasingly join the land use reform rodeo
Butte, Montana. Denis Tangney Jr via Getty Images
For a long time housing-related land use issues have been primarily dealt with at the local level, but that’s changing as a case in Montana shows.
Montana made headlines last year for passing statewide land-use reforms in an effort to build more housing, a rare move by a Republican-led government that some called the “Montana Miracle.” Included in the reforms were two laws that allowed duplexes on any residential lot in municipalities with more than 5,000 people and that streamlined approval processes for accessory dwelling units, commonly known as ADUs.
But just as some of the new rules were set to launch last week, a Montana county judge issued an injunction after a homeowners group argued the new rules were contradictory and difficult for local governments to follow. The conflict mirrors a broader tension between residents, cities and states and underscores the importance of collaboration across governments, one expert said.
Montanans Against Irresponsible Densification, the homeowners group that filed the complaint, argued that the new laws impede local authority and severely reduce public input opportunities, Montana Public Radio reported. The group targeted four laws, but the injunction applied to the two on duplexes and ADUs.
The injunction “reflects similar tensions that are playing out in states across the country as states are reconsidering the primacy … of single-family housing in local zoning,” said Nestor Davidson, a professor at Fordham University and expert in property and urban law.
Land use is a complicated issue and for a long time has been primarily dealt with at the local level, Davidson said, but that’s changing.
Take California, for example, where the state had long left development decisions almost entirely up to local governments that often aimed to prevent construction of multifamily housing. Over the last several decades, restrictive zoning has led to underdevelopment, high housing costs and some of the country’s highest rates of homelessness. Even where the state had mandates and requirements for cities to address housing needs on a regional basis, those obligations weren’t strictly enforced.
But in recent years, the state started enforcing existing laws and pushing reforms to encourage housing development, including 2016 legislation that prohibited cities and towns from banning ADUs. There’s been plenty of pushback, and municipalities often found loopholes in the legislation that prevented ADU development, according to the Brookings Institution. But as the state continued to modify laws, closing those loopholes, many localities grew to understand the need for diverse housing. Between 2016 and 2022, new housing permits for ADUs in the state jumped from about 1,000 to 24,000.
While decisions about planning and land-use are felt most directly locally, the consequences of these decisions ripple out across the state and therefore require some state guidance.
“It requires a balance,” Davidson said. “I think it's as much a mistake to ignore the regional and statewide implications of local land use as it is to have the pendulum swing the other way and make this purely a state issue.”
He pointed to New Jersey as an example where goals set at the state level helped communities build affordable housing. The Mount Laurel Doctrine, built on a series of state supreme court decisions since the 1970s, requires municipalities to ensure that local zoning regulations allow for sufficient affordable housing development.
The Mount Laurel Doctrine has seen its share of pushback and modification over the years, Davidson said, but ultimately it moved the needle in New Jersey’s efforts to build more housing. The rules have led to the development of 21,000 affordable homes since 2015, according to Fair Share Housing Center, a state housing nonprofit.
“It is something that has just become part of how local government works in the state, and I think that's a good model,” Davidson said.
Challenges to zoning reform don’t always come from the local level, Davidson noted. When Gainesville, Florida, voted to eliminate single-family zoning in 2022, the state pushed back, arguing that the changes wouldn’t lead to more affordable housing. Other ordinances aimed at making housing more accessible, including tenant protections, are also running into barriers at the state level in Florida and Texas, underscoring that “there are two sides to how you think about the state-local relationship here.”
“States have to recognize the important role that local governments and local communities play,” he said, “and I think local communities have to recognize that what they do in their neighborhoods have implications [regionally] and statewide.”
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