Statewide Streamside Setback Bill Gets Mixed, Emotional Response

Realtors, landowners and others lined up Tuesday to give wrenching testimony both for and against a bill to create statewide streamside setback zones for new construction in Montana.

“Clients who want river and stream frontage want the river to be clean,” said Kathleen Driscoll, a Bitterroot Valley realtor and lifelong Ravalli County resident, who supported the bill. “You should see the complicated mess that’s being floated for streams and rivers in Ravalli Co. at this moment.”

As she began to choke up, Driscoll added, “Protecting the values that I love about Montana is just plain good business.”

Driscoll’s support of the bill differed from some of the other realtors who testified, but her emotional tenor was typical of the large number who turned out to voice opinions on Senate Bill 345, sponsored by Sen. Bob Hawks D-Bozeman.

The bill, titled the “Montana Stream Legacy Act,” prohibits any further construction in a 250-foot zone on either side of the state’s 48 largest rivers. The distance is measured from the high water mark and includes a vegetative buffer of at least 100 feet, within which native plants must be maintained.

Major tributaries of those largest rivers would have a setback zone on either side of 150 feet.

The bill would not apply to incorporated cities or towns, zoned and unincorporated areas served by municipal sewer and water systems, or any locally-governed areas with setback regulations in place already. Agricultural use is exempted, and any buildings, wells and septic tanks already constructed or under construction would be grandfathered in.

Local governments, under the bill, would have authority to grant variances to the setback regulation on a case-by-case basis so long as it was in line with the intent of the legislation.

Rampant development along Montana’s riverfronts is causing permanent damage in the form of erosion, bad water quality, and a loss of wildlife habitat, said Hal Harper, Governor Brian Schweitzer’s chief policy adviser.

“By and large, we need to change the culture of building too close to these rivers,” Harper told the Senate Local Government Committee. “What is this state going to look like in 50 or 100 years if people don’t act?”

Karin Boyd, a scientist who studies river processes said houses built on riverfronts recently do not consider that Montana has been in a drought for over ten years.

“We’ve become a bit complacent about the risks associated with floods in this state,” Boyd said.

Several fishing guides also supported the bill, saying it would preserve Montana as a world-class fishing destination bringing in millions of dollars in tourist revenue every year.

Brett Tudsbury, a Gallatin Valley Realtor echoed Driscoll’s sentiments that streamside setback would help, not harm the real estate industry.

“I do not think this bill will hurt property values – it will only enhance values,” Tudsbury said. “You’re going to know what the guy next to you is going to be able to do.”

But a spokesman for the organization representing the majority of realtors throughout the state opposed the bill, calling it “one-size fits all state-imposed zoning.”

“We are not opposed to setbacks,” said Glenn Oppel of the Montana Realtors Association. Oppel added that the bill “ignores the principle that land use decisions are best left to local governments and their citizens.”

The variance provisions in the bill would also be very difficult to achieve, Oppel said. Overall, he said, the state should “trust the landowner to take care of their property.”

Opposition to the bill also came from the development industry, the Montana Stockgrowers Association, the timber industry and a number of landowners concerned about construction projects already underway.

Andy Skinner of Helena grew emotional describing what saw as the bill’s infringement on his private property rights.

“I’ve come up here and listened to all of these proponents who have vested interests for using my property,” said Skinner, who owns land near Stemple Pass. “We already have these rules. We’re going way past what we should be doing – this is private land.”

“It’s not for the public’s use, they shouldn’t be dictating where the house is built,” Skinner said.

Questioning the scope of the bill, Sen. John Esp, R-Big Timber, called it “de-facto state zoning.”

“Don’t you think this bill goes a little bit farther than just encouraging counties to act?,” Esp asked Harper.

The bill may need some work to refine its grandfather clause and variance procedure, Harper acknowledged.

“We’re standing strongly in support of (the) need to do something different than what the state of Montana is doing right now,” Harper said.

The committee’s chair, Sen. Kim Gillan, D-Billings, concluded the hearing saying she would form a subcommittee to make changes to the bill.