Senate Bill No. 37

Introduced By lynch, beck, shea, baer, menahan

A Bill for an Act entitled: "An Act prohibiting the housing of sex offenders in a NEW facility without the approval of the governing body or voters of the county in which the facility is located IF THE FACILITY WILL HOUSE ONLY OR PRIMARILY SEX OFFENDERS; AMENDING SECTION 76-2-412, MCA; and providing an immediate effective date and an applicability date."

Be it enacted by the Legislature of the State of Montana:

NEW SECTION. Section 1. Vote on housing sex offenders in county. (1) Except as provided in subsections (2) and (5), a person convicted of OR A MINOR ADJUDICATED A DELINQUENT YOUTH FOR one of the following offenses or of an offense as to which one of the following offenses is an included offense may not be incarcerated or otherwise housed in a state prison, boot camp, jail, community corrections facility, prerelease center, mental or other hospital or health care facility, FOSTER HOME, YOUTH GROUP HOME, COMMUNITY RESIDENTIAL FACILITY, DAY-CARE HOME, or other state, county, municipal, or private facility THAT ONLY OR PRIMARILY INCARCERATES OR HOUSES SUCH PERSONS unless a majority of the governing body or registered voters of the county in which the facility is located votes to allow persons convicted of any of the following offenses to be incarcerated or housed in the facility:

(a) sexual assault, 45-5-502;

(b) sexual intercourse without consent, 45-5-503;

(d) deviate sexual conduct, 45-5-505, or incest, 45-5-507, with a person who did not consent to the act underlying the offense or when, at the time of the offense, the convicted person was 18 or more years of age and the offense was committed with a person who consented but was under 16 years of age; or

(e) ritual abuse of a minor, 45-5-627.

(2) A vote is not necessary under subsection (1) to place a convicted person in a mental or other hospital or health care facility for diagnosis or treatment of physical problems or diagnosis, but not treatment, of mental problems.

(3) Except as provided in subsection (4), a vote under subsection (1) may not be taken within 3 years of a prior vote.

(4) A vote under subsection (1) must initially be by the governing body, which shall first give notice of and hold a public hearing on the question. The governing body's vote may be overruled by the registered voters at an election held within 6 months of the vote of the governing body if, within 3 months of the vote of the governing body, that body is presented with a petition, signed by at least 5% of the registered voters, for an election on the question.

(5) If the governing body or voters in each county in which the state considers it feasible to incarcerate or house the persons referred to in subsection (1) in a state facility in the county votes against it, the state may hold a public hearing in a county in which the state considers it feasible to incarcerate or house the persons. Following the hearing, the state may incarcerate or house the persons in a state facility in the county regardless of the prior negative vote. The facility must be on land owned by the state.

SECTION 2. SECTION 76-2-412, MCA, IS AMENDED TO READ:

"76-2-412. Relationship of foster homes, youth group homes, community residential facilities, and day-care homes to zoning. (1) A foster or youth group home operated under the provisions of 41-3-1141 through 41-3-1143 or a community residential facility serving 8 or fewer persons is considered a residential use of property for purposes of zoning if the home provides care on a 24-hour-a-day basis.

(2) A family day-care home or a group day-care home registered by the department of public health and human services under Title 52, chapter 2, part 7, is considered a residential use of property for purposes of zoning.

(3) ~~The~~ Except as provided in [section 1], the facilities listed in subsections (1) and (2) are a permitted use in all residential zones, including but not limited to residential zones for single-family dwellings. Any safety or sanitary regulation of the department of public health and human services or any other agency of the state or a political subdivision of the state that is not applicable to residential occupancies in general may not be applied to a community residential facility serving 8 or fewer persons or to a day-care home serving 12 or fewer children.

(4) This section may not be construed to prohibit a city or county from requiring a conditional use permit in order to maintain a home pursuant to the provisions of subsection (1) if the home is licensed by the department of public health and human services. A city or county may not require a conditional use permit in order to maintain a day-care home registered by the department of public health and human services."

NEW SECTION. Section 3. Applicability. [This act] applies to ~~incarcerations and other placements~~ FACILITIES that begin OPERATING after December 31, 1997.

NEW SECTION. Section 4. Effective date. [This act] is effective on passage and approval.

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