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.

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.