What are General and Self Governing Powers?
Municipal Land Use Authority: Self-Governing vs. General Government Powers in Montana
In Montana, the extent of a municipality’s authority to adopt land use regulations depends on whether it has adopted a self-governing charter or is a general government power. Self‐governing powers may exercise any power, provide any services, or perform any functions not expressly prohibited by the constitution, law, or charter, Mont. Const., Art. XI, Section 6 and 7-1-101, MCA. Montana’s 127 municipalities have self-governing powers (See Chapter I, Table 1.4). Where statutes provide the framework for specific actions, self-governing powers must strictly follow those requirements; where discretion is required, self-governing powers must
substantially comply with the statute (Gregg v. Whitefish City Council, 2004 MT 262, P20 (2004). An example of express prohibition in Montana state law is the regulation of the location of foster homes, youth homes, and community residential facilities serving eight or fewer persons. Under state law, all local governments must consider such uses a residential use, and allow them in all residential zones, 76-2-412, MCA. (See also 76-2-302, MCA , creating a state-imposed rebuttable presumption that manufactured housing will not affect property values in residentially zoned districts of Montana’s municipalities.) General governing powers have only those powers provided or implied by law (Mont. Const., Art. XI, Section 4(1); D & F Sanitation Serv. v. Billings, 219 Mont. 437, 444-445 (Mont. 1986). Unless the state legislature specifically provides local governments with general government authority to take a particular action, provide a particular service, perform a particular function, etc., a general government municipality has no authority to act. An example of a lack of specific authority to adopt land use regulations was impact fees, prior to the enactment of a state statute in 2005
specifically authorizing the adoption of such fees by local governments (See Southwest Montana Building Industry Association v Bozeman, 2000 Mont. Dist. LEXIS 2670 (2001)).
substantially comply with the statute (Gregg v. Whitefish City Council, 2004 MT 262, P20 (2004). An example of express prohibition in Montana state law is the regulation of the location of foster homes, youth homes, and community residential facilities serving eight or fewer persons. Under state law, all local governments must consider such uses a residential use, and allow them in all residential zones, 76-2-412, MCA. (See also 76-2-302, MCA , creating a state-imposed rebuttable presumption that manufactured housing will not affect property values in residentially zoned districts of Montana’s municipalities.) General governing powers have only those powers provided or implied by law (Mont. Const., Art. XI, Section 4(1); D & F Sanitation Serv. v. Billings, 219 Mont. 437, 444-445 (Mont. 1986). Unless the state legislature specifically provides local governments with general government authority to take a particular action, provide a particular service, perform a particular function, etc., a general government municipality has no authority to act. An example of a lack of specific authority to adopt land use regulations was impact fees, prior to the enactment of a state statute in 2005
specifically authorizing the adoption of such fees by local governments (See Southwest Montana Building Industry Association v Bozeman, 2000 Mont. Dist. LEXIS 2670 (2001)).