While Democratic state lawmakers this year were fumbling the passage of a major land-use bill aimed at increasing affordable housing options in Colorado, Republicans in the Montana statehouse had bipartisan support as they advanced similar policies.
Making it easier to build accessory dwelling units. Encouraging duplexes. Rolling back parking requirements. Boosting transit-oriented housing.
These strategies for increasing available housing and reducing its costs were featured in both Colorado’s failed measure and in several of Montana’s newly approved laws.
While the states’ bills are distinct and the political dynamics in both places are vastly different, some Democrats in Colorado have begun to wonder: How could conservative Montana accomplish what increasingly blue Colorado could not?
The answer is as complex as the policies themselves, but it mostly boils down to how each state views the argument that local governments should have the final say in how land is used.
Ultimately, the Colorado measure, Senate Bill 213, died without reaching a vote in the final hours of the 2023 legislative session because of universal opposition from Republicans and a lack of support among Democrats — who hold big majorities in the House and Senate.
“I can’t speak to what other states are doing,” said Sen. Rachel Zenzinger, an Arvada Democrat and a vocal opponent of Colorado’s land-use bill. “But I can speak to what Colorado is doing. I know for a fact that our communities are working really hard on the affordable housing issue and they are already implementing many of the things that we saw in 213, because they’re good strategies.”
The measure was a priority for Democratic Gov. Jared Polis, and its defeat was among his biggest policy losses.
“In Colorado, local control is such a Holy Grail that Senate Bill 213 was a rather sudden and abrupt challenge to that whole concept, without the governor having laid a lot of groundwork for it,” said Eric Sondermann, a Colorado political analyst.
For Montana Republicans, however, the new laws are seen as a way to increase property rights while allowing the free market to address a mounting problem that’s displacing longtime residents of the state.
“Montana’s got a very libertarian bent to it,” said Montana Sen. Daniel Zolnikov, a Republican who sponsored one of the bills in the state’s package of land-use legislation. “When you’ve got Republicans in Colorado who are like ‘local control’ you’ve got your Republicans in Montana who say ‘property rights are the truest form of local control.’”
Another differentiating factor was the response from organizations representing local governments in each state. The Colorado Municipal League took a hard line against the Colorado measure. But its Montana equivalent, the Montana League of Cities and Towns, had a mix of opposition, support and neutral positions for the bills there.
Kevin Bommer, the executive director of CML, said the Montana bills were just as flawed as Colorado’s measure because of that same local government preemption.
“If the Montana legislation had been introduced in Colorado it wouldn’t have looked a ton different than Senate Bill 213 probably and opposition from the league would have been the same,” he said.
The Montana bills
Montana Republicans, who have a supermajority in the state legislature, introduced several bills to try to increase their state’s affordable housing stock, taking a different approach than Colorado’s lone land-use bill.
Many of the ideas were born out of a task force created last year by Montana Gov. Greg Gianforte, a Republican.
One of those, Senate Bill 323, sponsored by Republican Sen. Jeremy Trebas, requires that cities with at least 5,000 residents allow duplexes to be built on lots zoned for single-family zoning. While the bill initially allowed for even greater density, lawmakers settled on duplexes.
Colorado’s land-use bill, as introduced, would have barred many communities from limiting the construction of duplexes, triplexes and other multifamily buildings with up to six units. That provision was removed before the bill failed.
Another Montana measure passed this year, Senate Bill 528, allows construction of at least one accessory dwelling unit on any lot in the state with a single-family home on it. Under the bill, those units — sometimes called mother-in-law suites, granny flats or carriage houses — have to be no more than 75% of the gross floor area of the single-family home or 1,000 square feet, whichever is smaller. Local governments are prevented from requiring additional parking for the units.
Under the introduced version of Colorado’s Senate Bill 213, most cities would have been required to allow accessory dwelling units.
One of the most significant pieces of legislation passed by the Montana legislature was Senate Bill 382. This law requires local governments to create planning commissions that study the housing needs of their communities and create plans to address those needs.
The cities will also have to choose five options from a menu of housing strategies to create enough housing to meet those goals.
Those options include zoning for higher density near high population areas like transit stations, eliminating requirements for more than one parking spot per unit, allowing triplexes or fourplexes in places zoned for single-unit homes, encouraging tiny houses and increasing building height limits.
It also requires all public hearings on land use to be in the general planning stages of a community, mostly preventing public participation in individual developments. The bill also prevents local governments from treating manufactured housing units differently from other types of residential units.
Colorado’s land-use bill also included a menu housing affordability options for municipalities to choose from when first introduced, though the bill stipulated that those specific options would be developed by the Department of Local Affairs after the bill’s passage.
“We’ve left it to local control for long enough”
The Montana League of Cities and Towns had mixed reactions to the various housing bills. They opposed the bill on duplex construction, only monitored the one on accessory dwelling units and supported the measure requiring cities to adopt strategies to increase housing.
“Many of the housing bills this legislative session mandate the same zoning rules for all communities across the state,” league executive director Kelly Lynch wrote in a news release. “Miles City, Missoula and Malta do not have the same problems that can be solved with the same solution.”
But Lynch went on to support the bill that would update the state’s zoning laws, calling it a “real solution.”
“Local governments, developers and community members will all know what is expected of them because they have been part of the decision-making process,” she said about the bill. “Most importantly, SB 382 will make it faster, cheaper and easier to build more housing in Montana.”
Still, Montana Republicans said concerns over local control were some of the biggest hurdles for their bills.
“We’ve left it to local control for long enough to know that it’s not working in a substantial way,” Trebas, of Montana, said, “because I don’t think they’ve really been focused on housing and housing affordability.”
But where proponents of the Montana measures saw property rights as trumping all else, opponents of Colorado’s measure — several of them Democrats — worried about the repercussions of taking decision making away from city and town councils.
“People are most passionate about what happens in their local communities,” said Rep. Shannon Bird, one of the Democrats who staunchly opposed the bill. “Their right to come and petition their local government in a meaningful way really matters. It’s a really big deal.”
Zenzinger, another Democrat who spoke against the legislation, joined Republican Sen. Barbara Kirkmeyer in a Colorado Sun opinion column criticizing the bill.
“Any issue affecting a town, city, county or region should be subject to local debate and control; and that’s especially applicable in the case of land use,” they wrote.
In Montana, Republicans were able to garner support from their Democratic colleagues. That’s different from Colorado, where Democrats pushing the land-use bill not only lost members of their party, but also faced universal opposition from the GOP.
Kirkmeyer, a Weld County Republican, said despite that, it all comes down to the power of municipalities to make their own choices.
“I don’t think there’s any appetite for preemption or mandates,” Kirkmeyer said of Republicans in Colorado.
In a future bill, Kirkmeyer suggested working individually with cities, offering rewards of additional grant dollars if they’re willing to increase density in their communities.
Polis and other Democrats have already hinted that a version of the bill will come back in the next legislative session.
“I think that we made a lot of great progress last session,” Polis told The Colorado Sun. “I think that laid the groundwork for an even stronger policy to come back. ”
The big hurdle will be in the Colorado Senate, where Senate Bill 213 died.
“We’ve got a lot of work to do in the other chamber,” said Rep. Steven Woodrow, a Denver Democrat and one of the lead sponsors of the bill. “But I think we need space after session to allow the air to clear and people to get some distance.”
Political reporter Jesse Paul contributed to this report.