Use to be, that bit of semantics made all the regulatory difference in the world.
While developers of rural subdivisions had to worry about things like making roads wide enough for emergency vehicles, or getting comment from neighbors, those planning to build condos faced no such scrutiny - even when, as with some proposals, the condos in question would take up about the same amount of space as a housing development.
That was a concern to some county residents, who at least were given notice when housing developments were proposed. Condos were different.
“It's like waking up on your farm and seeing your neighbor next door putting in, essentially, a subdivision and having no public notice,” said Roger Millar, director of Missoula County's Office of Planning and Grants.
As development increased, the question of whether condos should have to go through subdivision review was posed to the state attorney general, district judges, the Montana Supreme Court and the state Legislature.
“It's a complicated question,” Millar said.
The 2007 Montana Legislature decided condominiums built within city limits won't face subdivision review, but those in unzoned areas of the county will.
Nick Kaufman, a planner with WGM in Missoula, said the law discriminates against residents in rural towns like Seeley Lake and Lolo. Much like cities, both towns have the infrastructure - a sewer system, roads and a rural fire department - to support a condominium development, he said. But they're required to obtain the county's approval anyway, and at a much higher cost. With a crunch for affordable housing, laws like this only push that reality farther away, he said. The law should focus on infrastructure and services, not jurisdictional boundaries, he said.
Others praise the new law, saying it acts as a watchdog on development. It thwarts those who might have tried to avoid governmental review by calling what looks, smells and tastes like a subdivision a condo project.
Myra Shults, a land use attorney in Missoula, spent years in California suing developers. So when a condo development was proposed near her Lolo home, she paid extra-close attention.
In 2002, Liberty Cove Inc. proposed a 70-home subdivision near U.S. Highway 93 near Lolo. It was denied by the Missoula County commissioners because of traffic and groundwater concerns. Instead of appealing the decision, the group went ahead with the development - as an 82-unit condominium.
Before construction could begin on the Jaden Meadows Condominiums, Shults filed a lawsuit.
The district court ruled in Shults' favor, saying the condo project needed to go through subdivision review. The Montana Supreme Court disagreed, overturning the decision.
“All they were doing was filing a declaration and saying, ‘We are exempt from review. We can do whatever we want.' They were going with no review,” she said.
So Shults, not satisfied with losing at the highest judicial level, steered her protest in another direction.
She took her case to the Montana Legislature. Lawmakers passed a law, which went into effect in April, that establishes when a condo needs government review.
Condo projects inside Missoula's city limits are exempt from review. Millar said that the city's streets, sewer, zoning and other regulations make the review unecessary.
In the county, where growth is rapid, and where a significant portion of land is not zoned, condominium projects must go through subdivision review.
Susan Swimley, a Gallatin County land use attorney who represents developers, does not consider the new law to be anti-development.
“I think it's a law to make sure condo development meets the basic public health and safety,” she said.
Others disagree.
It's in the developer's interest to build roads and install sewer and water, said Missoula land use attorney Colleen Dowdall. Otherwise, no one would buy the homes, she said.
Kaufman estimates it costs anywhere from $3,000 to $7,000 per unit to satisfy county regulations.
Small mom-and-pop developments are hardest hit by the new law change, Swimley said. Many may not be able to move forward with their plans because of the additional cost of subdivision review, she said.
“It's caught a lot of people off-guard,” she said. “When you change these laws, we tend to catch the people who aren't developing as a business.”
But the cost isn't Kaufman's real beef. It has more to do with fairly applying state law. He said that in addition to discriminating against rural communities, the law also penalizes homeowners. Apartment buildings aren't required to go through subdivision review, so why should condominiums? he asked.
“Should ownership be the issue that requires subdivision review? That's what the new legislation says,” said Kaufman.
But few developers are clamoring to build an apartment complex anywhere that lacks a municipal sewer, Millar countered.
A decade ago, no one had condos in mind, Swimley said. But as housing prices rise, the size and magnitude of condominium development has changed with their comparable affordability. In 2006, Missoula County received 24 declarations for condo projects. Already in 2007, there have been 28. That's compared to only a handful before 2003.
It's important to rework the law to jibe with the supply and demand, Swimley said.
She doesn't foresee the new law significantly upping the cost of condos, she said. If anything, consumers are getting more bang for their buck because people can rest easy that their basic public health and safety needs are met, she said.
“Those aren't the things you want to sacrifice for affordability,” she said.
And now that the “loophole” has been closed, Millar sees a bullet dodged. “The size and sale of condos being contemplated, which would have happened without any opportunity for public comment and agency review . . . we could've had some significant problems.”
Reporter Chelsi Moy can be reached at 523-5260 or at Chelsi.Moy@Missoulian.com
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