The new Montana House of Lords

Feudalism is back in Montana – or at least if SB379 passes, we’ll be well on the way.

SB379is to protect real property owners from unreasonable land use restrictions and reductions in land value due to county zoning.” Translation: make zoning impossible by allowing a superminority of owners to protest its implementation.

The real devil is in the details:

Section 2.  Definitions. For purposes of [sections 1, 2, 4 through 9, 11, and 12], the following definitions apply:

(1) (a) “Affected property” means property taxed on an ad valorem basis on the county tax rolls and directly subject to a proposed zoning action.

(2) “Affected property owner” means the owner of affected property, including natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations, and any other legal entity owning land in fee simple, as joint tenants, or as tenants in common.

(3) “Protest override procedure” means the procedures described in [sections 6 through 9].

(4) “Protesting landowner” means an affected property owner who protests a zoning action.

(5) “Successful protest” means a protest by owners of 25% or more of the affected property.

Section 5.  Protest. (1) Within 60 days of the date that notice of passage of the resolution of intention to take a zoning action pursuant to [section 4] is first published, affected property owners may protest the proposed zoning action by delivering written notification to the board of county commissioners.

Notice how this assigns the right to protest to owners on the basis of area. Owners don’t even have to be people. A protest is a de facto vote. In other words, this policy is “one acre, one vote.” This bill elevates property rights, as in the 5th Amendment,

No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

above the Equal Protection Clause of the 14th Amendment,

No State shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the laws.

If the drafters of this bill are unclear as to which principle is the more fundamental, they could consult the Declaration of Independence,

We hold these truths to be self-evident, that all men are created equal, …

Update: one could also check the Montana constitution,

Section 1. Popular sovereignty. All political power is vested in and derived from the people. All government of right originates with the people, is founded upon their will only, and is instituted solely for the good of the whole.

I’ll gladly admit that zoning is a blunt instrument. But a de facto ban on zoning, with the idea that it’s a taking, guarantees a tragedy-of-the-commons outcome (unless you live in the faux-libertarian lalaland where property rights are fully allocated, markets are complete and there are no externalities). Even if that’s the road we choose to take, the governing principle must be “one person, one vote.”

Let’s see: government of the landowners, by the landowners, for the landowners – check. Elevation of politics above science – check. Montana is two thirds of the way to the Middle Ages! All we need now is to get rid of separation of church and state.

6 thoughts on “The new Montana House of Lords”

  1. Nicely stated! The concept that decisions impacting communities, health and safety and the environment (ie, ZONING) can be totally overrun by large ag / forest landowners has been one of the most startling aberrations of democracy that I have ever encountered. (Yes, I was naive, I thought “one person = one vote”!)

    The GOMAG lawsuit challenging the consitutionality of the large ag/forest landowner veto provision is being heard by the Montana Supreme Court. We anticipate a decision sometime during the summer of 2011.

    We hope to restore rights and decision-making to PEOPLE, with renters, small landowners, and landowners of large parcels that are not taxed as agricultural or forest given the same “one person = one vote” as the large ag/forest landowners.

    1. I neglected to point out that Montana law already has an acreage-based protest provision, but at least it takes 50%, not a minority of 25% of land to prevent formation of a zoning district. I hope the GOMAG suit overturns it, though the likely result is that the legislature will then find some other way to make zoning difficult.

      I think there are some interesting paradoxes about democracy, including tyranny of the majority, but granting power in proportion to wealth is hardly a good solution, though it was a popular one, as in 19th century England:

      T.B. Macaulay, later Lord Macaulay, famous as an essayist, historian and politician, was one of the leading liberals of the first half of the 19th century. He was a member of Parliament in 1848 when the Chartists presented their petition. This is what he said then about democracy (universal suffrage):

      My firm conviction is that, in our country, universal suffrage is incompatible, not with this or that form of government, but with all forms of government, and with everything for the sake of which forms of government exist; that it is incompatible with property, and that it is consequently incompatible with civilisation.

      If it be admitted that on the institution of property the well-being of society depends, it follows surely that it would be madness to give supreme power in the state to a class which would not be likely to respect that institution.

      [What would be the result?]

      We can only guess. My guess is that we should see something more horrible than can be imagined — something like the siege of Jerusalem on a far larger scale. There would be many millions of human beings, crowded in a narrow space, deprived of all those resources which alone had made it possible for them to exist in so narrow a space; trade gone; manufactures gone; credit gone. What could they do but fight for the mere sustenance of nature, and tear each other to pieces till famine, and pestilence following in the train of famine, came to turn the terrible commotion into a more terrible repose? The best event, the very best event, that I can anticipate, — and what must the state of things be, if an Englishman and a Whig calls such an event the very best? The very best event, I say, that I can anticipate is that out of the confusion a strong military despotism may arise, and that the sword, firmly grasped by some rough hand, may give a sort of protection to the miserable wreck of all that immense prosperity and glory… Thinking thus, I will oppose, with every faculty which God has given me, every motion which directly or indirectly tends to the granting of universal suffrage.

  2. Thanks for this clear description of the feudal times in store for MT and Gallatin County. As if! the people who hold title to the land are the only people who care for it or who care about it!

  3. How far do we have to bend before we see the folly in handing all the rights to corporations and the uber-rich? Stuff like this gets me as well as the insistence of those with multiple houses that unless they can vote in every location where they own property, it’s taxation without representation. ‘Scuse me? One PERSON, one vote?

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