As noted earlier this month, the Stillwater County Commissioners have found that the group seeking to form a citizen initiated zone in southern Stillwater County has collected the signatures of over 60% of the landowners in the proposed zone, the minimum threshold required by law. That is a major accomplishment by a dedicated group of volunteers over a long period of time, and a tribute to the commitment of local landowners to preserving their community.

Map courtesy Bert Sperling, bestplaces.net

However, the Commissioners have questioned whether the mineral rights holders in the proposed district should be counted toward the 60% in addition to the freeholders, or landowners. They plan to request an opinion from Montana Attorney General Tim Fox on whether this is the case, which could delay action on the zone for a significant period of time.

The fact that the Commissioners feel this is an open question made me wonder whether this is really an issue in practice in Montana. After all, citizen initiated zoning has been allowed by the Legislature since 1953 (see page 8), and the process, requiring the signatures of “real property owners,” is well established in Montana law.

If the law has been in place for 64 years, other counties in Montana must be using it. Are they struggling with the same issue? I took a look at the web site for every county in the state to find out.

The counties listed below provide links to citizen initiated zones on their web sites. They sometimes call them by different names — special zones, Part 1 zones, RFIDs — but the listings all refer to special districts created under MCA § 76-2-101. Other counties may have citizen initiated zones as well, but they are not identified on their web sites.

County (population)                Number of citizen initiated zones
Yellowstone (158,437)                                        6
Missoula (116,130)                                            31
Gallatin (104,502)                                             23
Flathead (98,082)                                              1*
Ravalli (42,088)                                                41
Park (16,114)                                                       6
Stillwater (9,406)                                               1**
Dawson (9,327)                                                  2

* Not listed on website, but per email from a Flathead County planner
** Not listed on website, but the West Fork Stillwater District was formed in 1979. Petitions were signed by landowners only, and approved by the Stillwater Commissioners.

That’s at least 111 citizen initiated zones formed under the same Montana law used by the Stillwater petitioners. How many, I wondered, were formed by petitions of both surface and mineral owners?

So I looked at the citizen initiated zoning process for the counties that posted them, talked to the planning department and clerk and recorder of a number of them, and could find no indication that a single one of the 111 required the signatures of mineral rights holders. Many of the zones are decades old, but no one I spoke to had ever been involved with a zone that included mineral rights holders in the petition process.

There are very good reasons for this, of course. First, it’s a practical impossibility to find out who the mineral owners are. There are no databases of Montana mineral rights holders. We’ve often discussed the research it takes to find out who owns the mineral rights to your land. Imagine having to do a title search for the 600+ properties in the Stillwater Zone, tracking down the contact information of every fractional owner, and obtaining their signatures. And if you were successful, how could the County Clerk validate the signatures without doing a similar search?

And what about the existing 110+ citizen initiated zones in Montana, created by dedicated volunteers concerned about protecting their own properties and approved by their county commissioners? If the Attorney General decides that mineral owners need to be included, will they have to disband because they didn’t get the signatures of mineral holders?

The Montana Legislature established citizen initiated zoning over 60 years ago and has updated the code several times since then. You have to imagine that if  they had wanted mineral rights owners to be a part of this they would have specifically said so.

If counties around the state have been enacting these zones for decades without considering this question, why should this be an issue now?

More:

• Ravalli County, which has the largest number of citizen initiated zones, has established a very clear process for landowners who seek to establish a citizen initiated zone. It does not include mineral rights holders. Download.
• Missoula County information regarding the creation of citizen initiated zones. The document specifically refers to the collection of signatures of freeholders, and mentions nothing about mineral rights holders.
• An example of a 1994 resolution to create a Ravalli County zoning district. Note that on Page 11 the document refers to “freeholders” rather than “real property owners.”
• A citizens guide to forming a zone in Sweet Grass County created in 1999 clearly specifies that it applies only to landowners.