A Helena judge may soon decide whether the city can using its zoning authority to regulate the kinds of materials used in building, or if, as one local homeowner claims, that power rests solely with the state.

The issue arose in the summer of 2011 when attorney Scott Svee and his wife, Megan, began replacing part of the roof on their Upper West Side home, using wood shingles like the ones he was replacing.

The city said re-roofing more than 10 percent of an existing roof with such shingles violated a zoning ordinance. In 2008, the city established a wildland-urban interface zone encompassing the entire city, bringing with it regulations — such as the prohibition on new wood shingles — designed to resist the spread of fire.

The city sued the Svees and filed criminal charges for doing the repair without a permit, although those charges were dropped.

Tuesday, District Judge Kathy Seeley heard from both sides. Scott Svee, representing himself and his wife, argued that state law prohibits cities from enacting building codes beyond the statewide code established by the Department of Labor and Industry.

Zoning authority, he argued, is limited to things like the height and size of structures, the percentage of a lot that can be occupied and the uses of buildings (commercial or residential, for example.) The city’s city-wide zone “goes beyond location and use, into materials,” he said in court.

Allowing the city to ban wood shingles as part of a zoning ordinance “absurdly renders meaningless the uniform and fire preventive purposes of Montana’s State Building Codes,” he said in a court filing. That would result in a “patchwork” of building codes around the state, he said — exactly what the building code law, passed in 1969 and bolstered by an attorney general’s opinion in 1984, meant to prevent.

City attorney Jeff Hindoien argued that the state building code law expressly excludes zoning regulations from its prohibition on city rulemaking. State law also specifically allows municipalities to “regulate and restrict the erection, construction, reconstruction, alteration, repair and use of buildings, structures or land,” he said in a brief to the court.

State law also allows cities to enact zoning ordinances that promote the health, safety, morals or general welfare of the community, and the laws related to fire danger in the wildland-urban interface clearly fall into that category, Hindoien said.

He pointed to court decisions, including one allowing the city of Belgrade to prohibit manufactured housing in a zoning district, even though those homes were permissible under the state building code.

“The (wildland-urban interface) ordinance is no different,” he said Tuesday.

“So, if I determine it’s a building code, you win, and if I determine it’s a zoning regulation, they win,” Seeley said, addressing Svee.

She did not immediately rule on the two sides’ cross-motions for summary judgment.

Svee said in 2011 the ordinance would be very expensive to comply with. The wood shingles breathe on their own, unlike fire-resistant asphalt-shingled roofs, which would require venting systems and effectively force the replacement of the entire roof, he said.

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