(A) Submittal. Any person seeking exemption from the requirements of the MSPA shall submit to the Subdivision Administrator a certificate of survey or, if a survey is not required, an instrument of conveyance, and evidence of, and an affidavit affirming entitlement to the claimed exemption. For purposes of MCA § 76-3-207, when a parcel of land for which an exemption from subdivision review is claimed is being conveyed under a contract-for-deed, the terms PROPERTY OWNER, LANDOWNER, and OWNER mean the seller of the parcel under the contract-for-deed.
(B) Review. When a division of land for which an exemption is claimed is submitted to the Subdivision Administrator, he or she shall cause the documents to be reviewed by the designated agents of the Town Council (such as Town Attorney, Sanitarian, Treasurer, and Clerk and Recorder). The Subdivision Administrator and Town Council agents shall review the claimed exemption to verify that it is the proper use of the claimed exemption and complies with the requirements set forth in the MSPA, the Montana Sanitation in Subdivisions Act, and these regulations.
(1) Landowners, or his or her agents, are encouraged to meet with the Subdivision Administrator to discuss whether a proposed land division or use of an exemption is in compliance with the criteria in this section.
(2) The Subdivision Administrator shall make a written determination of whether the use of the exemption is intended to evade the purposes of the MSPA, explaining the reasons for the determination.
(3) If the Subdivision Administrator finds that the proposed use of the exemption complies with the statutes and the criteria set forth in this section, the Subdivision Administrator shall notify the Town Council and advise the County Clerk and Recorder to file the certificate of survey, or record the instrument of conveyance, and accompanying documents. If the Subdivision Administrator finds that the proposed use of the exemption does not comply with the statutes and the criteria in this section, the Subdivision Administrator shall advise the County Clerk and Recorder not to file or record the documents, and the materials will be returned to the landowner.
(4) The Subdivision Administrator shall consider all of the surrounding circumstances when determining whether an exemption is claimed for the purpose of evading the MSPA. These circumstances may include, but are not limited to: the nature of the claimant’s business; the prior history of the particular tract in question; the proposed configuration of the tracts if the proposed exempt transaction is completed; and any pattern of exempt transactions that will result in the equivalent of a subdivision without local government review.
(C) Appeals.
(1) Any person whose proposed use of an exemption has been denied by the Subdivision Administrator because the proposed division of land has been deemed an attempt to evade the MSPA and these regulations may appeal the Subdivision Administrator’s decision to the Town Council. The person may request a hearing, and may submit additional evidence to show that the use of the exemption in question is not intended to evade the MSPA or these regulations and, thereby, rebut a presumption.
(2) If the Town Council concludes that the evidence and information overcome the presumption that the exemption is being invoked to evade the MSPA or these regulations, it may authorize the use of the exemption in writing. A certificate of survey claiming an exemption from subdivision review, which otherwise is in proper form, and which the Town Council has found not to be an attempt to evade the MSPA or these regulations, may be filed (or an instrument of conveyance recorded) if it is accompanied by written authorization of the Town Council.
(3) If the person proposing to use an exemption chooses not to rebut a presumption when the Subdivision Administrator deems the use of the exemption an attempt to evade the MSPA and these regulations, or if the Town Council determines that the proposed use of an exemption was for the purpose of evading the MSPA or these regulations, the landowner proposing to use the exemption may submit a subdivision application for the proposed land division.
(D) Remaining parcels of land. Occasionally parcels of land are created after the rest of the land has been subdivided or after an exemption is used to divide the land. The term “remainder” has been used to refer to that portion of an original tract which is not itself created for transfer but which is left after other parcels are segregated for transfer.
(1) A “remainder” less than 160 acres in size, contiguous to a proposed subdivision, will be considered a lot in that subdivision, and will not evade review as a “remainder”. If an exemption by a certificate of survey is used, the remaining tract of land is a separate parcel which must be surveyed.
(2) A landowner claiming that a parcel is a “remainder” shall present evidence that the parcel is, in fact, intended to be retained and not to be transferred. Examples of such evidence include the existence of the landowner’s residence on the parcel or building plans for a structure to be built by, or for, the landowner.
(E) Identification codes. To assist in the implementation of this review process, and to monitor those parcels by exemption, the Clerk and Recorder may cause the following identification codes to be added to the numbering of recorded certificates of survey filed after the effective date of these regulations:
(1) CO: Court order;
(2) ME: Mortgage Exemption;
(3) LE: Life Estate;
(4) RB: Relocation of Common Boundary;
(5) FC: Family Conveyance;
(6) AE: Agricultural Exemption;
(7) OS: Occasional Sale (used prior to April 6, 1993); and
(8) AL: Aggregation of Lots.
(Prior Code, § 11-4-27)
Statutory reference:
Review and procedure for land exemptions, see ARM § 24.183.1104, MCA § 76-3-201(1)(a), MCA § 76-3-201(1)(b), MCA § 76-3-201(1)(e), MCA § 76-3-207(1)(a), MCA § 76-3-207(1)(b), MCA § 76-3-207(1)(c), MCA § 76-3-207(e)