Missoula, Montana man wants to build an accessory dwelling unit allowed by state law, but an injunction stands in his way.
Image credit: “Accessory Dwelling Unit” by Sightline Institute is licensed under CC BY 2.0.
by Christian Britschgi
Seven years ago, an avalanche destroyed a detached garage on David Kuhnle’s rental property in Missoula, Montana. There it sat for several years.
Then came the wave of pandemic-era in-migration to Montana, which sent housing demand, and housing prices, through the roof. This gave Kuhnle, a realtor and landlord, the idea of turning the ruined garage into more housing. In early 2023, he started the process of building an accessory dwelling unit (ADU) on the site.
It was the best of timing and the worst of timing.
That spring, the Montana Legislature passed a slew of laws easing local regulations on new housing construction, including on ADUs.
Under Missoula’s regulations, ADUs could only be 600 square feet and had to come with an off-street parking space. The city also required that the property owner live in either the ADU or the primary dwelling.
The new state law, by contrast, let Kuhnle build a 1,000-square-foot ADU. He also didn’t have to provide parking or live on the property. After the law passed, he started drawing up plans to meet these more permissive standards.
But in December 2023, just before the state ADU legislation went into effect, anti-density activists convinced a Gallatin County judge to enjoin the new law. They’d made the unusual argument that the state’s ADU law violated equal protection guarantees because it allowed ADUs in neighborhoods only where private covenants didn’t already ban them.
“We were ready to submit [plans] in early January, then we got word about the injunction,” Kuhnle tells Reason. “My excavators, my framers, my concrete guy, everyone I had lined up to break ground are all stuck in limbo world.”
With the injunction in effect, Kuhnle can now only build to Missoula’s more restrictive local standards—something he says is difficult to make (profitable) with today’s interest rates and building costs.
Missoula is working on updates to its zoning code that would incorporate many of the new state standards, but that will take time. Rather than wait for the lawsuit to play out, Kuhnle—with the help of the Pacific Legal Foundation—is asking to intervene in the case on the state’s side.
Critics of Montana’s new state laws argue they improperly preempt cities’ local control. Kuhnle counters that activists all the way in Gallatin County are stopping him, hundreds of miles away, from improving his property.
“They think they’re going to stop the whole state from implementing rules and regulations. I don’t see how the logic there makes any sense at all,” he says.
Originally published by the Reason Foundation. Republished with permission.
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