(A) Advisory examination. Landowners or their representatives are encouraged to meet with the Administrator to discuss whether a proposed exemption is in compliance with the MSPA and the criteria of this subchapter prior to submitting documents claiming an exemption.
(B) Submittal and administration.
(1) Any person (“claimant” herein) claiming an exemption listed under § 11.02.070.030(A), (B), (C), (D), (E) and (F) shall submit to the city for examination by the Administrator, a draft certificate of survey, amended plat or, where a survey is not required, a draft instrument of conveyance and evidence of entitlement to the claimed exemption (see Figure 9 for the general procedural steps). Additional submittal requirements specific to certain types of exemptions are listed in § 11.02.070.030(A), (B), (C), (D), (E) and (F).
(2) The Administrator shall review the document(s) and may consult with the City Attorney, Public Works Supervisor, and other staff and officials (e.g., the County Clerk and Recorder, examining land surveyor, Montana DEQ, City Council and the like). The exemption shall be examined within 30 calendar days of submittal to determine whether it complies with the requirements set forth in this chapter, the MSPA and the Montana Sanitation in Subdivisions Act.
(3) (a) If the Administrator finds that the proposed use of the exemption complies with the statutes and applicable criteria, the Administrator shall advise the claimant and the County Clerk and Recorder that the applicable documents may be filed.
(b) If the Administrator finds the proposed use of the exemption does not comply with the statues and the criteria in this chapter, the Administrator shall advise the claimant and the County Clerk and Recorder of the decision, return the original documents to the claimant, and may retain a copy of the documents.
(4) After review and approval of the applicable documents by the Administrator and examining land surveyor (if applicable), and when all appropriate signatures are in place, the proper documents shall be filed with the County Clerk and Recorder’s office within one calendar year of the notification from the Administrator that the applicable documents may be filed.
(5) If the use of an exemption is denied, the landowner may initiate the process to apply for subdivision review subject to the requirements of these and other applicable regulations.
(6) Any person whose proposed use of exemption has been denied by the Administrator may appeal the Administrator’s decision to the City Council.
(a) The person may request a meeting with the City Council and may submit additional evidence to show that the use of the exemption in question is appropriate and not intended to evade the MSPA, and, thereby overcome any presumption of evasion.
(b) If the City Council concludes that the evidence and information overcomes the presumption that the exemption is being invoked to evade the MSPA or otherwise finds the exemption appropriate, the City Council may authorize the use of the exemption in writing.
(c) A survey claiming such an exemption from subdivision review (or an instrument of conveyance if no survey is required), which otherwise is in proper form and approved by the examining land surveyor (if applicable), may be filed if it is accompanied by written authorization of the City Council.
(C) Exemption evasion criteria.
(1) When determining whether an exemption is claimed for the purpose of evading the MSPA, the Administrator (and City Council when considering appeals), shall consider all of the surrounding circumstances. 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(s) is completed, and any pattern of exempt transactions that will result in the equivalent of a subdivision without local government review (State ex rel. Dreher v. Fuller, 50 Mont. St. Rep. 349, 257 Mont. 445, (1993)).
(2) Exempt divisions of land that would result in a pattern of development equivalent to a subdivision may be presumed to be adopted for purposes of evading the MSPA based on the surrounding circumstances in division (C)(1) above.
(3) When determining whether an exemption is claimed for the purpose of evading the MSPA, the Administrator (and City Council when considering appeals), shall consider the review criteria outlined for the specific exemptions listed in § 11.02.070.030.
(D) Requirements for exemptions.
(1) All parcels and the use of all parcels created or amended through the use of an exemption shall comply with the city zoning ordinance, or the degree of non-conformity shall not be expanded. For example, a lot smaller than the zoning regulations’ minimum lot size requirement may not be made smaller, but may maintain the non-conforming lot size or be made larger; similarly, a lot with a boundary that has a non-conforming structure within the required setback may not be altered in a manner that would cause the boundary to become closer to that structure.
(2) For purposes of this chapter, a tract of record becomes created when a new tract of record becomes of record, such as when a single tract is divided into two tracts. Boundary line relocations that start with two tracts and result in two tracts do not create new tracts.
(3) The city may not require lots resulting from exempt divisions to comply with §§ 11.02.060.010 through 11.02.060.270, unless the exemption seeks to alter a lot that was subject to the design and improvement standards of the subdivision regulations during subdivision review. An exemption that seeks to alter a lot that was subject to the design and improvement standards of the subdivision regulations during subdivision review, which would place the lot(s) out of compliance with those standards, would require approval of a variance pursuant to §§ 11.02.030.110(B) and 11.02.050.030.
(4) To exempt divisions and/or remaining parcels of land resulting from the exemptions in MCA § 76-3-207 from the survey requirements of MCA § 76-3-401, the parcel(s) must be able to be described as a 1/32 or larger aliquot part of a United States government section.
(5) Subject to the following, a division of land exempt from subdivision review by MCA § 76-3-207 (a gift or sale to a member of the immediate family, exemption for agricultural purposes or relocation of common boundaries) may not be made, unless the County Treasurer has certified that all real property taxes and special assessments assessed and levied on the land to be divided have been paid.
(a) 1. If a division of land includes centrally assessed property and the property taxes applicable to the division of land are not specifically identified in the tax assessment, the Department of Revenue shall prorate the taxes applicable to the land being divided on a reasonable basis.
2. The owner of the centrally assessed property shall ensure that the pro rated real property taxes and special assessments are paid on the land being sold before the division of land is made.
(b) The County Treasurer may accept the amount of the tax prorated pursuant to division (D) above as a partial payment of the total tax that is due.
(Prior Code, § 11.02.070.020) (Ord. 151, passed 6-20-2016)