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Housing haves versus housing have-nots in Montana – Daily Montanan [1]

['More From Author', 'January', 'Daniel Brooks']

Date: 2024-01-31  

“We’ve switched from a system in which owning a piece of real estate means you’re entitled to do what you want with it, to one in which owning a piece of real estate means you get wide-ranging powers to veto activities on your neighbors’ land,” writes Matthew Yglesias in his 2012 book, “The Rent is Too Damn High.”

It perfectly sums up the legal battle playing out between homeowners and recent bipartisan legislation aimed at adding critical housing supply.

In December, a group of homeowners filed a lawsuit challenging four bipartisan pro-housing bills passed by the legislature. The challenged laws return rights to property owners and help address the housing crisis through the only viable solution — building more homes in our cities. The plaintiffs allege they are filled with dread and will suffer “irreparable harm” at the thought of their neighbor turning a garage into a granny flat for elderly parents or converting a basement into a duplex rental. They claim that an extra unit of housing in their neighborhood is too great a burden, their own perceived costs tipping the scales of equity and outweighing the housing needs of fellow Montanans. They’re the “Housing Haves”—Montanans who attained their housing when it was more abundant and affordable and now fight to keep others out. They ignore the suffering, the dread, and the irreparable harm of the “Housing Have-Nots”—renters aspiring to buy, citizens insecure in their housing, or unhoused altogether, in large part because local governments intentionally restrict housing supply and density, enforcing an exclusionary land-use regime.

The judge agreed with the plaintiffs and temporarily blocked the new laws from taking effect as the case plays out.

Core to the plaintiff’s argument is the unspoken classist assumption that families that can only afford a duplex or multi-family housing (lower class) should be excluded from a single-family “family neighborhood.” This preference for class segregation goes back to the origins of zoning as outlined by M. Nolan Gray, a professional city planner, in “Arbitrary Lines“:

“The fact is, many affluent neighborhoods and suburbs continue to use zoning to perpetuate patterns of segregation in the same way they use zoning to raise housing costs…Though the courts have taken a dim view of racial zoning, they have long tolerated economic zoning, beginning with Justice Sutherland’s characterization of apartments as ‘mere parasite[s]’ in the case that deemed zoning constitutional.”

The lawsuit also claims that new legislation attempts to circumvent the Constitutional requirement of public participation, citing the most incontrovertible evidence, “common knowledge.” The logic goes like this, common knowledge says people don’t “get excited” about the planning process, therefore they have been denied a forum for public participation. It’s very solid reasoning.

Most importantly, the allegation that front-loading the public participation process reduces public involvement is untrue. I’m fortunate to sit on the Billings City Zoning Commission and participated in our Re:Code zoning re-write—a front-loading process. More than 100 public meetings and more than 20 public presentations to community groups and neighborhood task forces ensured hundreds, if not thousands, of residents from across Billings were involved in updating the decades-old code. We have a great model of front-load public participation to implement Senate Bill 382 with its requirement to meaningfully address our housing needs.

By contrast, a typical zone change meeting, the project-specific process preferred by those filing the lawsuit, may involve a few neighboring property owners. On the rare occasion that neighboring properties organize to protest a zone change, it’s because local government is required to give them explicit notice. By design, the process excludes notification of every resident who might otherwise benefit from adding housing to the community.

I strongly disagree with the arguments made by the plaintiffs and the judge’s reasoning so far in this case. Our current land-use system is designed to limit housing, and it has resulted in too few and too expensive homes for Montanans, a de facto denial of the Constitutional right of “pursuing life’s basic necessities.” Regardless, I remain an optimist, encouraged by the strong bipartisan agreement for these pro-housing reform bills.

Daniel J. Brooks is the Director of Business Advocacy at the Billings Chamber of Commerce.

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