Coronavirus

Montana's Ban on Mask Mandates Is Stopping Local Governments From Enforcing Their Zoning Codes

Officials in Gallatin County, Montana, say a state law that prohibits local governments from forcing businesses to turn customers away is preventing it from cracking down on zoning code violators.

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Late last year, the owner of snowmobile rental business Canyon Adventures filed a complaint with the code compliance office of Gallatin County, Montana, against the nearby Corral Bar and Steakhouse. It alleged the bar's own snowmobile rental business wasn't allowed by the property's zoning.

The county's code compliance office agreed that the snowmobile business wasn't allowed by the zoning code. But rather than slapping the Corral Bar owners with a fine or shutting them down, the Bozeman Daily Chronicle reported yesterday that the county closed the case without taking any enforcement action.

The reason? According to a sweeping law passed by the Montana Legislature in April 2021 aimed at prohibiting mask mandates, the county can't compel "a private business to deny a customer of the private business access to the premises or access to goods or services." It also can't adopt ordinances that deny customers the same access to those goods and services.

Importantly, H.B. 257 also stops governments from applying fines, revoking licenses, filing criminal charges, or bringing "any other retributive action" against business owners for not complying with a law forcing them to reject customers.

The language of the new state law is broad. So broad that, in a number of instances, Gallatin County officials have interpreted it to mean they can't penalize businesses for violating the county's zoning code.

"Each individual circumstance is going to be judged on its own," says Gallatin County Attorney Marty Lambert to Reason.

He declined to speculate on the full extent of H.B. 257. But, Lambert says, when there's a county law or regulation that falls within the scope of H.B. 257 and has the effect of forcing a private business to refuse a customer, then the county can't take "retributive action" against the business for servicing that customer anyway.

In those cases, the county is forbidden from using any "remedies that might be available under the ordinance," he says. "[H.B. 257] is all-encompassing, and it was meant to be all-encompassing."

In the Corral Bar case, county officials reasoned that they couldn't punish the bar for running an unpermitted snowmobile rental because that would involve compelling it to deny customers a service in violation of H.B. 257.

The Chronicle reports that Gallatin County officials have declined to bring enforcement actions in at least eight zoning cases because of H.B. 257's restrictions, including ones involving illegal Airbnbs and a summer camp that opened up in a residential zone.

The breadth of H.B. 257 stoked controversy when it was first passed. An Associated Press story from June 2021 quotes county and public health officials wondering what laws they'll still be able to enforce.

"The language eliminating local government authority to enforce any resolution or ordinance that interferes with a customer and business relationship is very broad and not limited to public health," Eric Bryson, the executive director of Montana Association of Counties, told the A.P. "Counties have many, many resolutions and ordinances that were previously enforceable but now may not be."

When asked whether his interpretation of H.B. 257 was exceptionally broad, Lambert says that he hasn't spoken with any other county attorneys about how they are enforcing it. Gallatin County appears to be unique by interpreting the law as affecting the enforcement of zoning codes.

Officials from other counties, the association representing municipal governments, and H.B. 257's author have all told the Chronicle that they don't think the law applies to zoning.

The requirements and complexities of zoning codes across the country can trip up entrepreneurs just trying to open a new burrito location or run a home studio business. Even when everyone is in agreement that the code is too burdensome, the most marginal reforms can still take years.

By passing a law preventing localities from getting in between willing businesses serving willing customers, Montana legislators seem to have liberated their state's business owners from all that red tape in one go. Intentionally or not, that might be the most sweeping zoning reform in the country.

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  1. "Counties have many, many resolutions and ordinances that were previously enforceable but now may not be."

    What’s the downside?

    1. Seems perfect actually.

    2. That's what I came on to ask. This seems like a good thing.

    3. The writer is in favor about it but it takes him to the last paragraph to say it. Other than that it's an actual libritarian take! How did this get by the reason editors?

      1. Monday margaritas?

    4. Logic is atrocious. Zoning laws that restrict the use of certain property e.g. prevent row sex shops from opening across from a local school is not '....forcing a private business to refuse a customer...' no matter how you twist it. The private business has to get it's authority to operate from another law on the books, usually zoning and licensing laws. HB 257 cannot possibly be read to overrule existing private business laws.

      1. Zoning laws that restrict the use of certain property e.g. prevent [...] sex shops from opening across from a local school is not '....forcing a private business to refuse a customer...' no matter how you twist it.

        Apparently, it can be twisted to mean exactly that.

        And here is the thing: if you are saying only an idiot would twist it that way, OK. But would the alternative — having that idiot going around shuttering business — actually be better?

        HB 257 cannot possibly be read to overrule existing private business laws.

        That seems to be exactly what is happening.

        Local governments do stupid things all the time. In this case, a local government is under the misimpression that it is legally prevented from doing one particular stupid thing.

        I am OK with that.

    5. Seriously.

      Another case of "The Libertarian Case for Strict Zoning Laws"

  2. Alternative explanation: The law was written this broad by design and the “unintended consequences” were very intended. The only real connection to “mask mandate” was as a cheap way to ride pubic sentiment to pass a bill that otherwise would have gotten much more scrutiny.

    1. Shouldn't have made a mask law at the local level - unintended consequences right???

    2. Mandate is not law. Start there.

    3. Legislatures should always be subject to pubic scrutiny before they just let it all hang out

      1. This from the PANIC-porn master pushing every mandate offered.

    4. They're just so so EVIL. Unempowering the local petty dictators. MOAR REGULATION NOW.

      1. And punishments! Don’t forget the punishments!

  3. Hmmm... We usually think of unintended consequences as negatives and that makes for an argument against broadly-written laws. Maybe we just don't notice as easily when the unintended consequences are positive.

    1. Lawmakers are too good at weeding out the positive outcomes, intended or otherwise.

  4. Collateral benefit.

  5. Seems like a bit of a stretch to interpret it that way. Saying that an business can't engage in certain kinds of transactions isn't the same as forcing them to refuse service to certain customers.
    Though if it is interpreted that way, I have to agree with others here that this sounds pretty good from a freedom perspective.

    1. I almost think the LEOs there must *want* to not enforce them. Because you *really* have to stretch to say that.

      You're not forcing someone to refuse a customer if they aren't allowed to have the business in the first place.

      Also, apparently the snowmobile company reported *itself*? Is this just a late Brickbat?

      1. Oh, I misread that.

      2. the way I read the piece, Smowmobile Rental Company Number One is ticked because Snow Mobile Rental Company Number Two is not being shut down because Number One does not like REAL competitioin. so what if the bar also rents snowmobiles? Number One need to step up to the plate and swing on that ball coming over the plate. Do something to make Number Twos customers come empty their money pokes at Number One.

        What bidniss does the county have telling anyone what they may/mayn't do on their property? WHO benefits if Number Two gets shut down? Of course.. NUmber One!!! If number Two is also a bar, it would seem there is already commercial cusotmer traffic on that chunk of dirt. Why prevent them adding a second service? Pull up,park your car, get out, pay for the sled, get on the sled, disappear. No more traffic at that location, they're all out on the sleds. It would seem the BAR's activities would be far more "disturbing" to the "peace and tranquility" of the neighbourhood with the BAR gone and just renting sleds.
        I'd say the Legislature did a fine job here. May it happen in at least forty nine more states, and that happen this year.

      3. I almost think the LEOs there must *want* to not enforce them.

        My first thought.

    2. If only one county attorney reads the law this way, then it will only take one business fined in any other area of the state to take it to court for a reading. It used to be common for legislators run drafts past "stakeholders" to get input so there were no unintended consequences.

    3. Yeah, If I run a shoe store and some rando wanders in off the street and demands an ice cream cone, am I denying him a service or product if I tell him I don't have any ice cream?

  6. I really don't see a downside. Speaking as a person who was denied the opportunity to open a new business in a building that I owned thanks to small town zoning advocates I think this county is on the right track. I feel the pain of the snowmobile guy but he should beat his competitor in the market place. If you have to sicc the government on your rivals you're probably going to fail anyway.

    1. Yeah going after a competitor's zoning requirements is a dick move that should not be sympathized with.

  7. And this is bad how?? WTF, Britschgi?

    1. Oops, I need to read the fucking article.

  8. I bet dollars to donuts that it’s not overly broad, it’s just that government employees are dumber than Molly and Joe.

    1. I think you mean donuts to dollars.

    2. There's a link to the actual text. It is broad.

      What it isn't is a bill specifically banning mask mandates. In fact, the word "mask" does not appear once. It actually is a bill protecting the right of business owners to do business and to stop localities from using regulatory enforcement to pick and choose who gets to stay in business.

  9. Well, then I guess they can't arrest a drug dealer either, or a hitman because that comes between a customer and business relationship. *eye roll* This is just people being intentionally obtuse to try and undermine a law they don't like.

    1. So?

    2. ^THIS....
      "This is just people being intentionally obtuse to try and undermine a law they don't like."

      Eric Bryson, the executive director of Montana Association of Counties interprets the State Law however he wants to but will blame the State for his own interpretation.

      But frankly; I'm of the constant opinion that the more LOCAL the regulation the more representation is involved. Thus I agree with Eric Brysons point being made (if that indeed is what this is). STATE governments really shouldn't be micromanaging cities and counties to this extent...

      I don't know; but I don't think the State of Montana was granted the authority to micromanage city/county zoning regulations. Unless perhaps the State of Montana is enforcing a 'right' granted to it's people by Montana's State Constitution...

      1. Municipalities are creations of states. Not only can states do this but they can also simply dis-incorporate the municipality at will. Municipalities have no powers at all that aren't given to them by states.

        1. Oh.. Is that like how the Federal grants Statesmanship so it must be the all mighty power too?? No need for guardrails. If the Fed can grant Statehood; it can just cancel Statehood whenever it wants to micromanage.

  10. So now Reason staff are for arbitrary zoning restrictions? Why, does it fit the current progressive outrage?

  11. "the owner of snowmobile rental business Canyon Adventures filed a complaint with the code compliance office of Gallatin County, Montana, against the nearby Corral Bar and Steakhouse."

    I know it's Montana, but these two businesses are actually 4.1 miles apart.

    1. That’s not that far in any rural area.

      1. Still, it's kind of fun to contemplate a bar, steakhouse, and snowmobile rental establishment. Get drunk, run something over in the snow, and they butcher and grill it.

        1. I mean, what do you do in wintertime?

      2. I know it's not that far for rural people, but it's also not exactly across the street, either. Why would such a rural area need zoning laws, anyway, with competing businesses spaced that far apart? Most of the rural areas I know do not have them.

        Also, what sort of jerk tries to pull a zoning code violation on their competitor, 4 miles down the road? It's not like they put up a huge sign that blocked the visibility to your shop - they just offer similar services relatively nearby.

  12. Wait, a state law is preventing local governments from using restrictive zoning laws to restrict in-demand products and services? Wow, Reason better get Britschgi on the case. This is...like...his THING:

    https://reason.com/2022/04/25/maine-could-be-the-third-state-to-end-single-family-only-zoning/

    That is one of an endless number of his articles that talks glowingly about how States and even the Federal government are overriding local zoning laws to free up property owners to provide demanded housing. Mr Britschgi should have a talk with the author of this article, and explain that local control isn't necessarily preferable when it isn't respecting private freedoms...

  13. Is it true? Will the court finally overturn the garbage ruling that has poisoned national politics for 50 years?

    Regardless of how you feel about abortion, this ruling deserved to go down. If you want abortion nationwide so badly then pass a constitutional amendment

    1. I had never considered that abortion might be a zoning issue.

      1. "Sorry, kid. This uterus is not zoned for childbearing."

        1. Or it's twins and the mom is only zoned single occupancy.

  14. Re: The leak of SCotUS's Abortion Ruling

    As with Jan 6, this is a new breach of norms, and as with Jan 6, this is not the end of life as we know it, no matter how many people want to blow it up into something larger.

    That said, the biggest loser of this whole thing was Chief Justice Roberts. All of his politicking and attempts to keep the Court on a neutral path has done nothing to save his institution. He betrayed basic principles with the Penaltax and all it bought him was a few years before his Court became a mockery of itself, with leaks about mask feuds and ultimately a new low: leaking opinions before they are released.

  15. So if I start a business in Montana with hard drugs and hookers the state of Montana can't stop me? Noted. Can we get the Feds to pass a similar law?

    1. I was thinking along the same line. By the county's interpretation, there's no reason that the Snow Mobile rental shop can't now serve liquor with his rentals. I bet a snow mobile rental permit is WAY cheaper than getting a liquor permit anyway.

      CB

    2. No, i.e. HB 257 does not authorize or allow anyone to create those or any other private business. Zoning laws and license laws do that. HB 257 would only apply AFTER you have satisfied all other laws governing the creation and licensing of the 'private business'. Once that is done, then local governments cannot engage in '....forcing a private business to refuse a customer...' It's like having a set of laws that create the Highway and roads in a State, and then going insane and passing something like HB 257 that says '...for all legal roads established under other laws, no one can be forced to obey speed limits on those roads.

  16. So it is not all local governments in Montana. It is just one county, whose officials may be applying the law beyond a reasonable interpretation.

  17. Small government eh?

    They don't want small government- they just want things their way and will be the authoritarians we always knew they were.

  18. Local zoning laws are preventing self-determination.

  19. Liberty as an unintended consequence of a law.

    Now I've seen it all.

  20. Looks like a great unintended consequence. It was especially gratifying to see that the cronyist whiner. Who wanted to use gov’t thugs to shut down the competition didn’t’t get to.

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