The State of Montana floodplain regulations that deprive citizens the right to own and enjoy their properties as provided in the 5th

Amendment of the US Constitution (explained below)

 Missoula County’s 2022 zoning regulations (MCZR) violate the 5th and 14th Amendments of the US Constitution by drafting regulations that take private property through unreasonable and excessive regulations (explained below).

Montana Law:

 Title 76 of the Montana Code Annotated (MCA) sets forth regulations on the use of floodplain properties that unreasonably deprive citizens full economic viability of their properties, providing unbridled authority for counties to design their own zoning regulations that exacerbate and accelerate the illegal taking of private properties. One of the most depriving Montana laws regarding floodplain property is “artificial obstructions.”

76-5-404. Artificial obstructions and nonconforming uses.

(1) An artificial obstruction or nonconforming use in a designated flood plain or designated floodway enforced under

76-5-301 (1) and (2) and not exempt under 76-5-401 through 76-5-403 or subsection (2) or (3) of this section is a public nuisance unless a permit has been obtained for the artificial obstruction or nonconforming use from the department or the responsible political subdivision.

(2) [1] * It is unlawful for a person to establish an artificial obstruction or nonconforming use within a designated flood plain or a designated floodway without a permit from the department or the responsible political subdivision.

(3) (a) Parts 1 through 4 of this chapter do not affect any existing artificial obstruction or nonconforming use established in the designated flood plain or designated floodway before the land use regulations adopted by the political subdivision are effective or before the department has enforced a designated flood plain or a designated floodway under 76-5-301 (1) and (2). 

(b) However, [2] *a person may not make nor may an owner allow alterations of an artificial obstruction or nonconforming use

within a designated flood plain or a designated floodway whether the obstruction proposed for alteration was located in the flood plain or floodway before or after July 1, 1971, * except upon express written approval of the department or the responsible political subdivision.

 Maintenance of an obstruction is not an alteration.

MCA 76-5-103-1 , "Artificial obstruction" means any obstruction that is not a natural obstruction and includes any dam, wall , riprap, embankment, levee, dike, pile, abutment, projection, revetment, excavation , channel rectification, bridge, conduit, culvert, building ,

refuse, automobile body, fill, or other analogous structure or matter in, along, across, or projecting into any flood plain or floodway that may impede, retard, or change the direction of the flow of water, either in itself or by catching or collecting debris carried by the water, or that is

The MCZR (Ch 7.4 -j) fencing regulations are in conflict with Montana law as well:

 A person who owns or possesses livestock may not permit the livestock to graze, remain upon, or occupy a part of the right-of-way of: …”

MCA 81-4-101. “Legal fences defined.  Except as provided in subsections (2) and (7), a legal fence must be at least 42 inches but not more than 48 inches in height. The following are legal fences in Montana:

(1) fences constructed of at least three barbed, horizontal, well-stretched wires, the lowest of which is not less than 15 inches or more than 18 inches from the ground, securely fastened as nearly equidistant as possible to substantial posts firmly set in the ground or to well-supported leaning posts not exceeding 20 feet apart or 33 feet apart where two or more stays or pickets are used equidistant between posts; …”

Missoula County Zoning Regulations (MCZR) – Effective July 2022

  Relying in part on Title 76 of Montana Law, Missoula County adopted much of the new zoning regulation that are found online on the County’s website that went into effect July 2022. These regulations cover a wide area of development in Missoula County. This overview only focuses on 2 critical issues for property owners within certain distances from rivers and stream, including but not necessarily limited to floodplains.

 First and most violating of our civil rights is Chapter 1, stating in part:

 Ch 1,1.5 “Compliance Required

No building, structure, or land shall be used or occupied in whole or in part unless in complete conformity with these regulations.”

 Second, the reader must closely read the prohibitions of the use of your property sited in Chapter 7 of the regulations to determine if you can remain in complete conformity with these regulations.  

Where is MCZR applicable?

MCZR Ch 1, 1.3 states:

 “These regulations apply to all land, buildings, structures, uses, infrastructure, and rights-of-way located in zoned areas within the unincorporated area of Missoula County, regardless of ownership, unless specifically exempted by these regulations or any other local, state, or federal law.”

 While Ch 1,1.3 identifies applicability to properties in zoned unincorporated area of Missoula County, it does not specifically exclude properties outside of those zoned unincorporated areas. MCZR, Ch 7, page 227 includes, but does not limit, applicability to:

  “Blackfoot River – the entire length”

         “Bitterroot River – the entire length”

         “Clark Fork River – East of confluence with the Blackfoot River” and west of the Reserve Street Bridge.

           And several creeks in Missoula County – (See MCZR, page 227)

Examples of regulations in Chapter 7 of the MCZR that may deprive the full economic viability of property –

Within the

Riparian Resource Buffer:

[5] *“Construction of new structures and elements is prohibited within the Riparian Resource Buffer.” [6] *“Signage is prohibited, with the exception of wayfinding signs. Existing legal nonconforming signs are subject to the provisions of Chapter 10”

Within the Riparian Resource Protection Area:

“Ch 7.4 – j, fencing in the Riparian Resource Protection Area is prohibited, except for wildlife-friendly fencing meeting the following standards to allow for safe and convenient wildlife movement. The top rail may either be of solid material or smooth wire, separated by a minimum of 12 inches from the rail or wire below.

1.    The top rail or wire shall be no taller than 42 inches above grade.

2.    The bottom rail may either be of solid material or smooth wire and must be at least 18 inches above the ground.

3.    The spacing of fence posts shall be on 16.5-foot centers unless topography prevents this spacing. …”

NOTE: It is highly unlikely a property owner holding livestock can comply with this regulation, subjecting the property owner to violation under Chapter 1, 1.5 of the MCZR as well as MCA 60-7-201.

Within Floodplains:   “Uses Prohibited : The following uses are prohibited within the designated floodplain.” A few listed in the MCZR are:

·    Automotive or vehicle repair shops, including farm equipment repair shops

·      Buildings on non-permanent foundations

·      Manufacturing and production, except for artisan

·      Research cooperative learning and training facilities

[1] * The State floodplain building permit form states the cost of the floodplain permit application to be $25.00 to $550+. Missoula County charges $939.00, paid at the time of application to construct or reconstruct a non-residential building. A new floodplain permit is needed each time an artificial obstacle is added to a floodplain property, or an obstacle is moved or altered.

It may be helpful to know that not all counties in Montana require building permits or charge permit fees. It might also be important to ask what permit fees are used for that other taxes are not already paying for?  

[2]* With the language of MCA 76-5-404 and the definition of artificial obstruction, it is clear that a person’s right, pursuant to the US Supreme Court, to enjoy full economic viability of property is deprived unless a property owner pays substantial permit fees, in addition to property taxes, and permission is given by a local floodplain administrator to enjoy full economic viability of their property.

[3]* Upon enforcement by the State or county, can this be interpreted to include anything manmade that could float downstream?

[4]* The MCZR cause property owners to violate MCA 60-7-201 by creating fencing regulations (3 wires 12” apart, 18” off the ground, no higher than 42” on posts spaced 16’ 6” apart. [MCZR Ch 7.4 – j,]) that will not allow property owners to keep their livestock off of highway right-of-way. Property owners are therefore faced with violating Montana Law or be in non-compliance with MCZR, subject to MCZR Ch 1, 1.5, that does not allow the use or occupancy of property not in conformity with the MCZR. Forcing citizens to choose between which law they must violate to enjoy their right to own property is a violation of the 5th and 14th Amendment of the United States of America.

[5]* The definition for “elements” in the MCZR, “include but are not limited to surface parking, on-premises advertising signs, freestanding energy generation facilities, landscaping, helicopter pads, storm water detention facilities, building design element, lighting, playgrounds, and non-structural recreational facilities.”

[6] * Does this mean no “private property” signs, no business signs, no "no hunting” signs, no farm signs or owner name signs that have been enjoyed for hundreds of years?