April 13, 2011

The Honorable Jim Peterson

President of the Senate

State Capitol

Helena, MT 59620

The Honorable Mike Milburn

Speaker of the House

State Capitol

Helena, MT 59620

Dear President Peterson and Speaker Milburn:

In accordance with the power vested in me as Governor by the Constitution and the laws of the State of Montana, I hereby veto House Bill No. 542 (HB 542), “AN ACT REVISING PROVISIONS GOVERNING CRITERIA FOR LOCAL GOVERNMENT REVIEW OF PROPOSED SUBDIVISIONS AND INFORMATION PROVIDED AS PART OF A REVIEW; REQUIRING INFORMATION FROM A GOVERNMENTAL ENTITY TO BE SUPPORTED BY SCIENTIFIC INFORMATION; PROHIBITING CONSIDERATION OF INFORMATION PROVIDED BY A GOVERNMENTAL ENTITY THAT IS OR HAS BEEN INVOLVED IN AN EFFORT TO ACQUIRE OR ASSIST OTHERS IN ACQUIRING AN INTEREST IN THE REAL PROPERTY UNDER REVIEW; PROHIBITING A GOVERNING BODY FROM CONSIDERING THE IMPACT OF A SUBDIVISION UNDER REVIEW IN CONJUNCTION WITH THE IMPACTS OF POTENTIAL FUTURE SUBDIVISIONS; PROVIDING THAT INFORMATION PERTAINING TO MITIGATION BY THE SUBDIVIDER MAY NOT BE CONSIDERED NEW INFORMATION; AMENDING SECTIONS 76-3-608 AND 76-3-615, MCA; AND PROVIDING AN APPLICABILITY DATE.”

I issue this veto because the amendments to Montana’s subdivision review process contained in HB 542 are unnecessary, contrary to the public interest, and could jeopardize one of Montana’s most important industries – farming and ranching. The amendments would unnecessarily tie the hands of local governments by limiting sources of information those governments can rely on in their decision-making absent any reasonable justification.

First, in the name of clarifying the original intent of subdivision review criteria, HB 542 would replace the term “agriculture” as a criterion for considering a proposed subdivision’s impacts, with the term “surrounding agricultural operations.” This would prevent local governments from considering a new subdivision’s overall impacts to agriculture, including the permanent loss of agricultural land. This subtle but significant change would erode the original intent of Montana’s subdivision laws, which in the words of the primary bill sponsor in 1975 when the laws were enacted, was to address “the tragic intrusion on the agricultural land base of Montana.” Simply stated, I oppose this change to Montana’s subdivision review laws that eliminates the consideration of the impacts of a subdivision to Montana agriculture.

Totally unworkable in my opinion is the requirement that information presented to a local governing body from federal, state, or local government experts concerning wildlife, wildlife habitats, or the natural environment be limited to “the best available scientific information.” While this standard for providing opinions may sound reasonable, I doubt any two parties can give the same definition of what it actually means. Who will determine whether information provided is the “best available”? What if the information is “reasonably reliable”? What if dueling experts each proclaim their information is the “best available”? Under each example, the local governing body would be put in the position of having to make an evidentiary determination as to whether information is the “best available” and exclude all other information. I believe this high evidentiary standard for the submission of comments is unnecessary, unreasonable, and counterproductive.

Additionally, I object to the provision in HB 542 prohibiting a local governing body, in its consideration of a pending subdivision application, from considering the impact of a future subdivision. I believe that local officials are best suited to decide whether impacts to future developments in their areas should be considered. I also oppose HB 542’s absolute prohibition on the categorization of all mitigation information as new information. Clearly, notwithstanding this arbitrary classification in the bill, a mitigation proposal could be new information as a matter of fact, thereby triggering the requirement for a public hearing and the opportunity for neighbors to comment on the developer’s new proposal. Like other provisions of the bill, I believe this categorization is unnecessary, unreasonable, and contrary to Montana’s strong public participation laws.

Finally, while the requirement that a governmental entity offering comments disclose any self-interest it may have based on its own efforts to acquire or assist another in acquiring the property may be of value, this provision in HB 542, alone, is not sufficient to win my support for the bill in its entirety. In any event, local governments should have the tools necessary under existing law to address this issue to the extent it has been a problem.

I ask for your support in sustaining my veto of HB 542 for the reasons stated above.

Sincerely,

BRIAN SCHWEITZER

GOVERNOR

cc: Legislative Services Division