HOUSE BILL NO. 441

INTRODUCED BY M. BRAINARD

A BILL FOR AN ACT ENTITLED: "AN ACT PROTECTING HOMEOWNERS' RIGHTS BY GENERALLY REVISING LAWS THAT MAY INFRINGE ON THOSE RIGHTS; PROVIDING THAT IF A MUNICIPALITY PROPOSES TO TAKE AN ACTION THAT WOULD RESULT IN WHOLLY SURROUNDING LAND WITH AN IMPROVEMENT, SUCH AS A BIKE OR FOOT PATH OR AN OPEN SPACE CORRIDOR, A MAJORITY OF THE REGISTERED VOTERS RESIDING ON THE LAND THAT WILL BE WHOLLY SURROUNDED SHALL FIRST APPROVE THE ACTION; PROVIDING THAT IF A PROPOSAL IS MADE TO ANNEX LAND THAT WHOLLY SURROUNDS LAND THAT WILL NOT BE ANNEXED, A MAJORITY OF THE OWNERS OF THE LAND THAT WILL BE WHOLLY SURROUNDED LAND SHALL FIRST APPROVE OF THE ANNEXATION; PROVIDING THAT A STATE OR LOCAL GOVERNMENT ENTITY OR AGENCY MAY NOT FILE A CIVIL PROCEEDING OF ANY TYPE AGAINST A PERSON OR PROSECUTE THE PERSON FOR ACTIONS THE PERSON TAKES ON THE PERSON'S PROPERTY TO PROTECT THE PROPERTY FROM NATURAL DISASTERS, SUCH AS FIRES OR FLOODS, IF THE ACTIONS DO NOT INJURE OTHER PERSONS OR PROPERTY; PROVIDING THAT A PERMIT IS NOT REQUIRED FOR AND AN INSPECTION FEE MAY NOT BE CHARGED FOR THE INSPECTION OF THE REPAIRING OR REMODELING OF A SINGLE-UNIT OR DOUBLE-UNIT RESIDENTIAL BUILDING OR A GARAGE, SHED, STORAGE STRUCTURE, BARN, OR OTHER BUILDING NOT USED FOR RESIDENTIAL PURPOSES THAT IS ON THE SAME PIECE OF PROPERTY AS THE SINGLE-UNIT OR DOUBLE-UNIT RESIDENTIAL BUILDING; AND AMENDING SECTIONS 7-2-4201, 7-2-4312, 7-2-4313, 7-2-4314, 7-2-4402, 7-2-4601, 7-2-4606, 7-2-4710, 45-8-111, 50-60-104, 50-60-203, 50-60-301, 50-60-503, AND 50-60-604, MCA."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

NEW SECTION. Section 1. Municipal resolution of intent to wholly surround land with improvements -- notice. When, in the judgment of a city or town council, expressed by a resolution that is passed and adopted, it is in the best interest of the city or town to wholly surround land with an improvement, such as a bike or foot path or an open space corridor, the city or town clerk shall:

(1) immediately notify, in writing, all registered voters residing on the land to be wholly surrounded; and

(2) cause a notice to be published in the newspaper published nearest the land to be wholly surrounded at least once a week for 2 successive weeks. The notice must state that the resolution has been passed and that for a period of 20 days after the first publication of the notice, the city or town clerk shall accept written comments approving or disapproving the proposed improvement from registered voters residing on the land to be wholly surrounded.

NEW SECTION. Section 2. Hearing -- resolution on proposed action -- vote. (1) The city or town clerk shall, at the next regular meeting of the city or town council after the expiration of the 20-day period provided for in [section 1], present all written communication received by the clerk for the city or town council's consideration.

(2) If the city or town council, after considering all written communications, adopts a resolution approving the improvement, the implementation of the resolution must be approved by a vote of the registered voters residing in the area to be wholly surrounded. The resolution must state the time period during which the proposed improvement is intended to be effected.

(3) Within 45 days of adopting the resolution, the city or town council shall submit the question of approving the resolution to the registered voters residing in the area to be wholly surrounded. A notice of election must be mailed to all registered voters residing in the area to be wholly surrounded.

Section 3. Section 7-2-4201, MCA, is amended to read:

"7-2-4201. Additions to municipalities. Whenever land adjoining an incorporated city or town is surveyed and laid off into streets or blocks as an addition to the city or town, the land may become a part of the city or town:

(1) upon filing the map or plat in the office of the county clerk;

(2) upon the approval of the mayor and a majority of the council ; and

(3) when land is proposed to be annexed wholly surrounds land that is not proposed to be annexed, upon the favorable vote of a majority of the persons owning land that is not proposed to be annexed."

Section 4. Section 7-2-4312, MCA, is amended to read:

"7-2-4312. Resolution of intent by city or town -- notice. When, in the judgment of a city or town council, expressed by a resolution that is passed and adopted, it is in the best interest of the city or town and the inhabitants of any contiguous platted tracts or parcels of land or unplatted land for which a certificate of survey has been filed that the boundaries of the city or town be extended to include the platted tracts or parcels of land or unplatted land within the corporate limits of the city or town, the city or town clerk shall:

(1) immediately notify, in writing, all registered voters residing in the area to be annexed and, if the proposal is to annex land that wholly surrounds land that is not proposed to be annexed, all owners of the wholly-surrounded land that is not proposed to be annexed; and

(2) cause a notice to be published in the newspaper published nearest the platted tracts or parcels of land or unplatted land for which a certificate of survey has been filed, at least once a week for 2 successive weeks."

Section 5. Section 7-2-4313, MCA, is amended to read:

"7-2-4313. Contents of notice -- protest period. The notice under 7-2-4312 must state that:

(1) the resolution has been passed; and

(2) for a period of 20 days after the first publication of the notice, the city or town clerk shall accept written comments approving or disapproving the proposed extensions of the boundaries of the city or town from registered voters residing in the area proposed to be annexed and, if the land proposed to be annexed wholly surrounds land that will not be annexed, from the owners of the wholly surrounded land that will not be annexed."

Section 6. Section 7-2-4314, MCA, is amended to read:

"7-2-4314. Hearing on question of annexation -- vote on question of annexation -- resolution of annexation. (1) (a) The city or town clerk shall, at the next regular meeting of the city or town council after the expiration of the 20-day period provided for in 7-2-4313, forward all written communication received by the clerk for the city or town council's consideration.

(b) Except as provided in subsection (1)(d), if the city or town council, after considering all written communication, adopts a resolution approving the annexation, the implementation of the resolution must be approved by the vote of the registered voters residing in the area proposed for annexation. The resolution must state the date on which the proposed annexation is intended to take effect.

(c) Within 45 days of adopting the resolution for annexation, the city or town council shall submit the question of approving the resolution to the registered voters residing in the area proposed to be annexed. The question must also be submitted to the owners of any land that is not proposed to be annexed that is wholly surrounded by land that is proposed to be annexed, and the annexation may not be carried out if a majority of the owners of the wholly surrounded land that is not proposed to be annexed do not vote in favor of it. A notice of election must be mailed to all registered voters residing in the area proposed for annexation and to the owners of any land that is not proposed to be annexed that is wholly surrounded by land that is proposed to be annexed.

(d) If the area to be annexed contains less than 300 recorded parcels, the city or town council, after considering all written communication, may adopt a resolution approving the annexation and the boundaries of the city or town must be extended to include the platted tracts or parcels of land or unplatted land for which a certificate of survey has been filed. An area annexed pursuant to this subsection may include land used for railroad purposes. A city or town council may not annex by resolution an area containing less than 300 recorded parcels if the resolution is disapproved in writing by a majority of real property owners of the area proposed to be annexed. If the resolution is disapproved by a majority of the land owners, the city or town council may not on its own initiative propose further resolutions relating to the annexation of the area or any portion of the area, without petition, for a period of 1 year.

(2) Except as provided in subsection (1)(d), further resolutions relating to the annexation of the area or any portion of the area may not be considered or acted upon by the council on its own initiative, without petition, for a period of 5 years from the date of disapproval by the voters as provided in subsection (1)."

Section 7. Section 7-2-4402, MCA, is amended to read:

"7-2-4402. Annexation of contiguous government land. (1) Whenever any land contiguous to a municipality is owned by the United States or by the state of Montana or by any agency, instrumentality, or political subdivision of either or whenever any of the foregoing have a beneficial interest in any land contiguous to a municipality, the land may be incorporated and included in the municipality to which it is contiguous and may be annexed to the municipality and made a part of the municipality in the manner provided in this part.

(2) Land may not be annexed that wholly surrounds land that will not be annexed unless a majority of the owners of the wholly surrounded land that will not be annexed vote in favor of the annexation."

Section 8. Section 7-2-4601, MCA, is amended to read:

"7-2-4601. Annexation by petition. (1) The boundaries of any incorporated city or town may be altered and new areas annexed as provided in this part.

(2) The council or other legislative body of a municipal corporation, upon receiving a written petition for annexation containing a description of the area to be annexed and signed by not less than 33 1/3% of the registered electors of the area proposed to be annexed, shall without delay submit to the electors of the municipal corporation and to the registered electors residing in the area proposed by the petition to be annexed the question of whether the area should be made a part of the municipal corporation. If the land to be annexed wholly surrounds land that will not be annexed, the annexation may not occur unless it is submitted to the vote of and receives a favorable vote by a majority of the owners of the wholly surrounded land that will not be annexed.

(3) (a) The governing body of a municipality need not submit the question of annexation to the qualified electors as provided in subsection (2) if it has received a written petition containing a description of the area requested to be annexed and signed by:

(i) more than 50% of the resident electors owning real property in the area to be annexed; or

(ii) the owner or owners of 50% of the real property in the area to be annexed; and

(iii) if the land to be annexed wholly surrounds land that will not be annexed, more than 50% of the owners of the wholly surrounded land that will not be annexed.

(b) The governing body may approve or disapprove a petition submitted under the provisions of subsection (3)(a) upon its merits. When the governing body approves the petition, it shall pass a resolution providing for the annexation."

Section 9. Section 7-2-4606, MCA, is amended to read:

"7-2-4606. Resolution of annexation. (1) (a) If it is found that a majority of votes were cast in favor of the annexation, the city or town council or other legislative body shall, at a regular or special meeting held within 30 days of the election, pass and adopt a resolution providing for the annexation.

(b) The resolution must state that a petition has been filed with the council or other legislative body with the signatures of 33 1/3% of the resident electors owning real property in the area proposed to be annexed; a description of the boundaries of the area to be annexed; a copy of the resolution ordering a general or special election; a copy of the notice of the election; the time and result of the canvass of the votes received in favor of annexation and the number of votes cast against annexation; and that the boundaries of the city or town will be extended to include the area described in the petition for annexation. The resolution must be incorporated in the minutes of the council or legislative body.

(2) A resolution adopted pursuant to 7-2-4601(3) must include a statement that a petition has been filed with the governing body containing the signatures of more than 50% of the resident electors owning real property in the area to be annexed or the owners of 50% of the area to be annexed and, if the land to be annexed wholly surrounds land that will not be annexed, the signatures of more than 50% of the owners of the wholly surrounded land that will not be annexed; a description of the boundaries of the area to be annexed; and a statement that the boundaries of the municipality are to be extended to include the area described in the petition for annexation. The resolution must be incorporated in the minutes of the governing body. Upon incorporation in the minutes, the resolution must be filed and becomes effective as provided in 7-2-4607."

Section 10. Section 7-2-4710, MCA, is amended to read:

"7-2-4710. Protest. (1) For a period of 45 days after the public hearing provided for in 7-2-4707 through 7-2-4709, the governing body of the municipality shall accept written comments approving or disapproving the proposed annexation from real property owners of the area proposed to be annexed.

(2) If a majority of the real property owners disapprove of the proposed annexation in writing or, if the proposal is to annex land that wholly surrounds land that will not be annexed and a majority of the owners of the wholly surrounded land that will not be annexed disapprove of the proposed annexation in writing, further proceedings under this part relating to the area or any part of the area proposed to be annexed may not be considered or acted upon by the governing body on its own initiative, without petition, for a period of 1 year from the date of disapproval."

NEW SECTION. Section 11. Actions to protect person's own property from natural disasters -- freedom from government interference. A state or local government entity or agency may not file a civil proceeding of any type against a person or prosecute the person for actions the person takes on the person's property to protect the property from natural disasters, such as fires or floods, if the actions do not injure other persons or property.

Section 12. Section 45-8-111, MCA, is amended to read:

"45-8-111. Public nuisance. (1) "Public nuisance" means:

(a) a condition that endangers safety or health, is offensive to the senses, or obstructs the free use of property so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood or by any considerable number of persons;

(b) any premises where persons gather for the purpose of engaging in unlawful conduct; or

(c) a condition that renders dangerous for passage any public highway or right-of-way or waters used by the public.

(2) A person commits the offense of maintaining a public nuisance if the person knowingly creates, conducts, or maintains a public nuisance.

(3) Any act that affects an entire community or neighborhood or any considerable number of persons ,as specified in subsection (1)(a), is no less a nuisance because the extent of the annoyance or damage inflicted upon individuals is unequal.

(4) An agricultural or farming operation, place, establishment, or facility or any of its appurtenances or the operation of the place, establishment, or facility is not and may not become a public nuisance because of the normal operation as a result of changed residential or commercial conditions in or around its locality if the agricultural or farming operation, place, establishment, or facility has been in operation longer than the complaining resident has been in possession or commercial establishment has been in operation.

(5) Noises resulting from the shooting activities at a shooting range during established hours of operation are not considered a public nuisance.

(6) Actions taken on a person's own property to protect the property from natural disasters, such as fires or floods, do not constitute a public nuisance if they do not injure other persons or property.

(7) A person convicted of maintaining a public nuisance shall be fined not to exceed $500 or imprisoned in the county jail for a term not to exceed 6 months, or both. Each day of such conduct constitutes a separate offense."

Section 13. Section 50-60-104, MCA, is amended to read:

"50-60-104. Inspection fees. (1) Except as provided in subsection (2), the department shall establish a schedule of fees and may collect fees for the inspection of plans and specifications and for the inspection of buildings, factory-built buildings, or any other facility or structure. The fees must be commensurate with the cost of the inspections and with appropriations for other purposes.

(2) Neither the department nor a municipality may establish or collect a fee for inspecting the plans and specifications for, or for inspecting, the repairing or remodeling of a single-unit or double-unit residential building or a garage, shed, storage structure, barn, or other building not used for residential purposes that is on the same piece of property as the single-unit or double-unit residential building."

Section 14. Section 50-60-203, MCA, is amended to read:

"50-60-203. Department to adopt state building code by rule. (1) (a) The department shall adopt rules relating to the construction of, the installation of equipment in, and standards for materials to be used in all buildings or classes of buildings, including provisions dealing with safety, accessibility to persons with disabilities, sanitation, and conservation of energy. The adoption, amendment, or repeal of a rule is of significant public interest for purposes of 2-3-103.

(b) Rules concerning the conservation of energy must conform to the policy established in 50-60-801 and to relevant policies developed under the provisions of Title 90, chapter 4, part 10.

(2) The department may adopt by reference nationally recognized building codes in whole or in part and may adopt rules more stringent than those contained in national codes.

(3) The rules, when adopted as provided in parts 1 through 4, constitute the "state building code" and are acceptable for the buildings to which they are applicable.

(4) The department shall adopt rules that permit the installation of below-grade liquefied petroleum gas-burning appliances.

(5) The department may not adopt a rule or that part of a nationally recognized building code that requires an inspection fee or a building permit for the repairing or remodeling of a single-unit or double-unit residential building or a garage, shed, storage structure, barn, or other building not used for residential purposes that is on the same piece of property as the single-unit or double-unit residential building."

Section 15. Section 50-60-301, MCA, is amended to read:

"50-60-301. Municipal and county building codes authorized -- health care facility and public health center doors. (1) The local legislative body of a municipality or county may adopt a building code by ordinance to apply to the municipal or county jurisdictional area. The code may not require an inspection fee or a building permit for the repairing or remodeling of a single-unit or double-unit residential building or a garage, shed, storage structure, barn, or other building not used for residential purposes that is on the same piece of property as the single-unit or double-unit residential building.

(2) A municipal or county building code may include only codes adopted by the department.

(3) Any provision of a building code requiring the installation or maintenance of self-closing or automatic closing corridor doors to patient rooms does not apply to health care facilities as defined in 50-5-101 or to a public health center as defined in 7-34-2102."

Section 16. Section 50-60-503, MCA, is amended to read:

"50-60-503. Exceptions. (1) This part may not be construed to apply to or to affect plumbing installations in any mines, mills, smelters, refineries, public utilities, railroads, or plumbing installations on farms having their own individual water supply or sewage disposal system.

(2) A permit is not necessary for and an inspection fee may not be charged for inspecting the planning, installation, removal, alteration, or repair of that part of a plumbing or drainage system that is part of the repairing or remodeling of a single-unit or double-unit residential building or a garage, shed, storage structure, barn, or other building not used for residential purposes that is on the same piece of property as the single-unit or double-unit residential building."

Section 17. Section 50-60-604, MCA, is amended to read:

"50-60-604. Inspections -- electrical permits -- fees. The department of commerce or an authorized representative or a municipality or county certified to perform an inspection pursuant to 50-60-302 shall inspect electrical installations, issue electrical permits for these installations, and establish and charge a reasonable and uniform fee for the inspections, except that a permit may not be required and an inspection fee may not be charged for an elecrical installation performed as part of the repairing or remodeling of a single-unit or double-unit residential building or a garage, shed, storage structure, barn, or other building not used for residential purposes that is on the same piece of property as the single-unit or double-unit residential building. The fee must be commensurate with the expense of providing the inspection and with appropriations for other purposes. As part of any inspection, the inspector shall require proof of licensure from any person who is required to be licensed who is involved with or, in the inspector's judgment, appears to be involved with electrical installations if the person is on the site. The inspector shall report any instance of license violation to the inspector's employing agency, and the employing agency shall in turn report the violation to the board of electricians."

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