A. Submittal: Any person seeking exemption from the requirements of the MSPA shall submit to the subdivision administrator: 1) a certificate of survey or, if a survey is not required, an instrument of conveyance; and 2) evidence of, and an affidavit affirming, entitlement to the claimed exemption. For purposes of Montana Code Annotated section 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 1 .
B. Review: When a division of land for which an exemption is claimed is submitted, the subdivision administrator shall cause the documents to be reviewed by the designated agents of the governing body such as, but not limited to, the county attorney, sanitarian, treasurer, and clerk and recorder. The subdivision administrator and the governing body's agents, staff and employees 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 this title.
1. Landowners or their 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 chapter.
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 chapter, the subdivision administrator shall notify the governing body and advise the 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 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 this title, may appeal the subdivision administrator's decision to the governing body. 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 this title, and, thereby rebut a presumption.
2. If the governing body concludes the evidence and information overcome the presumption that the exemption is being invoked to evade the MSPA or this title, they 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 governing body has determined not to be an attempt to evade the MSPA or this title, may be filed (or an instrument of conveyance recorded) if it is accompanied by written authorization of the governing body.
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 this title, or if the governing body determines that the proposed use of an exemption was for the purpose of evading the MSPA or this title, the landowner proposing to use the exemption may submit a subdivision application for the proposed land division.
D. Remainders:
1. 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" is commonly 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.
2. To qualify as a remainder, a parcel must not have been created for the purpose of transfer and must be retained by the owner. The subdivision administrator or designee shall determine during the preapplication process whether or not a proposed remainder meets this qualification, that it is not being created for the purpose of transfer. The determination shall be based upon demonstration by the subdivider that one or more of the following criteria are met: a) the remainder parcel is one hundred sixty (160) acres or more in size; b) the remainder is part of a phased development in which the phasing plan has been approved by the governing body; c) the remainder has minimal relation to the subdivision lots in regard to size, parcel, configuration, road access, common facilities or covenants. The subdivider may submit an appeal of the determination by the subdivision administrator or designee with the preliminary plat application. If an appeal is submitted, the governing body shall make the final determination as to whether or not a proposed remainder is being created for the purpose of transfer, giving consideration to the criteria noted above and all other surrounding circumstances.
3. A remainder does not meet the definition of a subdivision; therefore, it is only subject to survey if it cannot be described as a one thirty-second (1/32) or larger aliquot part of a U.S. government section or U.S. government lot 2 .
4. Prior to the transfer of an unsurveyed remainder parcel to another party, it shall be surveyed and the survey filed with the clerk and recorder, unless it can be described as a one thirty- second (1/32) or larger aliquot part of a U.S. government section or a U.S. government lot 3 .
5. Neither a subdivision nor the use of an exemption can create more than one remainder, nor can a remainder be used in conjunction with a five (5) lot minor subdivision.
6. 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 hereof:
(Ord. 784, 8-6-2007)
Notes
| 1 | 2. ARM 24.183.1104. |
| 2 | 1. MCA §§ 76-3-103(15), 76-3-401. |
| 3 | 2. MCA § 76-3-401. |
| 4 | 1. MCA § 76-3-201(1)(a). |
| 5 | 2. MCA § 76-3-201(1)(b). |
| 6 | 3. MCA § 76-3-201(1)(e). |
| 7 | 4. MCA § 76-3-207(1)(a). |
| 8 | 5. MCA § 76-3-207(1)(b). |
| 9 | 6. MCA § 76-3-207(1)(c). |
| 10 | 7. MCA § 76-3-207(e). |