(A) Family transfers.
(1) Generally. Divisions made outside of platted subdivisions for the purpose of a single gift or sale in each county to each member of the landowner’s immediate family.
(2) Statement of intent. The intent of this exemption is to allow a landowner to create one parcel for conveyance to each immediate family member without local subdivision review.
(3) Requirements.
(a) This exempt division may only be made outside of any platted subdivision.
(b) A single parcel may be conveyed to each immediate family member of the landowner under this exemption in each county where the landowner owns property.
(c) For purposes of this exemption,
IMMEDIATE FAMILY MEMBER means a spouse, child by blood or adoption, and parent of the grantor.
(d) Filing of any certificate of survey (or recording of an instrument of conveyance) that would use this exemption to create a parcel for conveyance to a family member, must show the name of the grantee, relationship to the landowner, and the parcel to be conveyed under this exemption, and the landowner’s certification of compliance.
(e) Any certificate of survey that would use this exemption to create a parcel for conveyance to a family member shall be accompanied by the instrument of conveyance, such as a deed.
(4) Review criteria.
(a) Any proposed use of a family transfer exemption to divide a tract of record that was created through use of an exemption.
(b) The use of the family transfer exemption to divide a tract that was created as part of an overall development plan with such characteristics as common roads, utility easements, restrictive covenants, open space, or common marketing or promotional plan.
(B) Agricultural exemptions.
(1) Generally. Divisions made outside of platted subdivisions by gift, sale or agreement to buy and sell in which the parties to the transaction enter a covenant running with the land and revocable only by mutual consent of the City Council and the property owner that the divided land will be used exclusively for agricultural purposes.
(2) Statement of intent. The intent of this exemption is to allow a landowner to create a parcel without local subdivision review where the parcel will be used only for agricultural purposes.
(3) Requirements.
(a) Agricultural purposes: for purposes of this exemption, the term
AGRICULTURAL PURPOSES means the use of land for raising crops or livestock, or for the preservation of open space, and specifically excludes residential, commercial, and industrial uses and structures, as well as any facilities for commercially or industrially processing agricultural products.
(b) The division must be exempt from sanitation review by the MDEQ pursuant to MCA § 76-4-125(1)(c) as a division made for purposes other than the construction of water supply or sewage and solid waste disposal facilities. This sanitation exemption must be properly invoked by the property owner.
(c) 1. The landowner must enter into a covenant running with the land and revocable only by mutual consent of the City Council and the property owner, heirs, successors, and assigns that the newly created agricultural parcel will be used exclusively for agricultural purposes as defined above.
2. The covenant must be signed by the property owner and the City Council, and acknowledge that any change in use of the newly created agricultural parcel for anything other than agricultural purposes subjects the parcel to subdivision review.
(d) Any change in use of the newly created agricultural parcel for anything other than agricultural purposes subjects the parcel to subdivision review.
(e) 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.
(f) The use of the agricultural exemption may not create more than one remaining parcel of less than 160 acres.
(C) Relocation of common boundaries and aggregation of lots.
(1) Statement of intent. The intent of these exemptions is to allow a change in the location of one or more boundary line between parcels and to allow transfer of the land without subdivision review or to allow more than one parcel to be aggregated into fewer parcels.
(2) Requirements.
(a) If the relocation of common boundaries would result in the permanent creation of an additional parcel of land, the division of land must be reviewed as a subdivision.
(b) If a change is made to a platted subdivision which results in a redesign or rearrangement of six or more lots in a platted subdivision, the division of land must be reviewed as a major subdivision.
(c) Certificates of survey, or amended plats for those altering platted subdivisions, claiming one of these exemptions must clearly distinguish between existing boundary locations and new boundary locations.
1. This shall be accomplished by showing the existing boundaries with dashed lines and the new boundaries with solid lines.
2. The appropriate certification set forth in ARM § 24.183.1104(1)(f) must be included on the certificate of survey or amended plat.
(d) When certificates of survey are filed with the County Clerk and Recorder’s office with the purpose of relocating boundary lines or aggregation of lots, the certificate of survey must be accompanied by deed(s) or other conveyance document(s) to effectuate the exemption and describe the entire newly described parcel(s) or that portion of the parcel(s) being affected.
(D) Exemption to provide security for a construction mortgage, lien or trust indenture.
(1) Statement of intent.
(a) 1. Under policies by many lending institutions and federal home loan guaranty programs, a landowner who is buying a tract with financing or through a contract for deed is required to hold title to the specific site on which the residence will be built.
2. The intended purpose of this exemption is to allow a landowner who is buying a tract using financing or contract for deed to segregate a smaller parcel from the tract for security for financing construction of a home on the property.
(b) 1. This exemption is not available to simply create a parcel without review by claiming that the parcel will be used for security to finance construction of a home or other structure on the proposed lot.
2. This exemption may not be properly invoked unless:
a. The claimant is purchasing a larger tract through financing or a contract for deed (and thus does not hold title); and
b. A lending institution requires the landowner to hold title to a smaller parcel of the tract because the smaller tract is required as security for a building construction loan.
(2) Requirements.
(a) These regulations do not require a certificate of survey or amended plat to invoke the use of the exemption claimed under MCA § 76-3-201(1)(b). Surveys for this exemption are at the discretion of the claimants, lending institutions, surveyors and the like, but are encouraged to provide proper legal descriptions in the event of default of the lien and creation of the tract(s).
(b) When this exemption is to be used, the landowner shall submit the following along with an affidavit affirming entitlement to the claimed exemption to the Administrator:
1. A statement of how many parcels within the original tract would be created by use of the exemption;
2. The deed, trust indenture or mortgage for the exempt parcel (which states that the tract of land is being created only to secure a construction mortgage, lien or trust indenture);
3. A statement explaining who will have title to and possession of the balance of the original parcel after title to the exempted parcel is conveyed;
4. A signed statement from a lending institution that the creation of the exempted parcel is necessary to secure a construction loan for buildings or other improvements on the parcel; and
5. Documentation that the lending institution is a financial or lending institution registered to do business in the state.
(c) The use of this exemption may be for the purpose of evading the MSPA if:
1. It will create more than one building site;
2. The financing is not for construction on the exempted parcel;
3. The person named in the statement explaining who would have possession of the remainder parcel if title to the exempted parcel is conveyed is anyone other than the borrower of funds for construction;
4. Title to the exempted parcel will not be initially obtained by the lending institution if foreclosure occurs; or
5. It appears that the principal reason the parcel is being created is to create a building site and using the parcel to secure a construction loan is a secondary purpose.
(E) Court ordered divisions.
(1) The intent of this exemption is to provide for divisions of land created by order of any court of record in this state or by operation of law or that, in the absence of agreement between the parties to the sale, could be created by an order of any court in this state pursuant to the law of eminent domain, MCA Title 70, Section 30.
(2) Pursuant to MCA § 76-3-201(3) before a court of record orders a division of land, the court shall notify the City Council of the pending division and allow the city to present written comments on the division.
(F) Condominiums, townhomes or townhouses.
(1) Statement of intent. Generally, condominiums, townhomes or townhouses, as those terms are defined in MCA § 70-23-102, are subject to review as subdivisions as described in the MSPA, but under certain circumstances, they may be exempt from review pursuant to MCA § 76-3-203.
(2) Exemption. Condominiums, townhomes or townhouses, as those terms are defined in MCA § 70-23-102, are exempt from subdivision review if:
(a) They are constructed on lots subdivided in compliance with these regulations and the approval of the original subdivision of land expressly contemplated the construction of the condominiums, townhomes or townhouses and any applicable park dedication requirements in MCA § 76-3-621 and § 11.02.060.240 are complied with; or
(b) The condominium, townhome or townhouse proposal is in conformance with applicable local zoning regulations when local zoning regulations are in effect.
(3) Requirements.
(a) To use the exemption, the declaration of unit ownership must include an exhibit containing certification from the city that the condominiums are exempt from review under MCA § 76-3-203 (see MCA § 70-23-301).
(b) 1. Only the city has the authority to determine whether a division of land is exempt from subdivision review.
2. The act of recording a condominium declaration does not establish the declaration’s validity simply because the County Clerk and Recorder’s office accepted and recorded it.
(c) To obtain city certification that the condominiums, townhomes or townhouses are exempt from review as a subdivision, the person seeking the use of the exemption shall submit evidence of and an affidavit affirming entitlement to the exemption to the Administrator, who will review the documents under § 11.02.070.020 above; however, an exemption claimed pursuant to MCA § 76-3-203 is not subject to examination under the exemption evasion criteria of § 11.02.070.020(C).
(G) Exemptions not requiring action by the city.
(1) (a) The exemptions listed in this division (G) are presumed to not be intended for the purpose of evading the MSPA if properly invoked, and therefore do not require submittal of information to the city for examination under the general procedures for exemptions as outlined in § 11.02.070.020.
(b) However, if a survey is to be filed with the County Clerk and Recorder’s office to utilize the exemption, the survey is subject to examination by the examining land surveyor for compliance with the uniform standards.
(2) A division of land created by lease or rental of contiguous airport-related land owned by a city, a county, the state, or a municipal or regional airport authority is not subject to the subdivision review requirements of this subchapter or the MSPA; provided that the lease or rental is for on-site weather or air navigation facilities, the manufacture, maintenance, and storage of aircraft, or air carrier-related activities.
(3) A division of state-owned land is not subject to the subdivision review requirements of this subchapter or the MSPA, unless the division creates a second or subsequent parcel from a single tract for sale, rent or lease for residential purposes after July 1, 1974.
(4) Subdivision review requirements of these regulations and the MSPA do not apply to deeds, contracts, leases or other conveyances which were executed prior to July 1, 1974.
(5) Instruments of transfer of land which is acquired for state highways may refer by parcel and project number to state highway plans which have been recorded in compliance with MCA § 60-2-209 and are exempted from the surveying and platting requirements of the MSPA and these regulations.
(a) If such parcels are not shown on highway plans of record, instruments of transfer of such parcels shall be accompanied by and refer to appropriate certificates of survey and plats when presented for recording.
(b) A survey or plat for the recordation of an instrument transferring title to a remainder that was created when the state obtained property for a highway right-of-way is not required (44 A.G. Opinion 25 (1992)).
(6) The following divisions in MCA § 76-3-201 not previously included in this subchapter:
(a) A division of land that creates an interest in oil, gas, minerals or water that is severed from the surface ownership of real property;
(b) A division of land that creates cemetery lots;
(c) A division of land that is created by the reservation of a life estate;
(d) A division of land that is created by lease or rental for farming and agricultural purposes;
(e) A division of land that is in a location over which the state does not have jurisdiction; and
(f) 1. A division of land that is created for right-of-ways or utility sites.
2. A subsequent change in the use of the land to a residential, commercial or industrial use is subject to the requirements of the MSPA and these regulations.
(Prior Code, § 11.02.070.030) (Ord. 151, passed 6-20-2016)
Statutory reference:
Similar provisions, see MCA §§ 76-3-201(1)(a), 76-3-201(1)(b), 76-3-203, 76-3-205(1), 76-3-205(2), 76-3-206 , 76-3-207(1)(a), (d),(e), and (f), 76-3-207(1)(b) and 76-3-207(1)(c)