A. General Criteria: The Subdivision Administrator, when determining applicability of an exemption, shall consider the evidence related to the proposed use of that exemption in light of all circumstances. Such evidence includes, but is not limited to:
1. Prior history of the particular tract of record in question;
2. Previous use of an exemption to create the tract of record in question;
3. Proposed configuration of tracts of record once the proposed exemption is completed;
4. Any pattern of exempt transactions that will result in the equivalent of a subdivision without local government review; and
5. Intended purpose of the exemption in relation to the claimant’s past actions on the property, including any previous attempts to subdivide the tract in question.
B. Specific Criteria: The remainder of this chapter is organized by specific exemption types. Each exemption type is accompanied by information on the applicability of the particular exemption, required documentation for submittal when claiming a specific exemption, and review criteria that would apply to that specific exemption.
1. Divisions of land exempt from review as a subdivision and also exempt from surveying requirements include:
a. Court order;
b. Mortgage exemption;
c. Severed interest (oil, gas, minerals, or water);
d. Cemetery lots;
e. Life estate;
f. Lease or rental for farming or agriculture;
g. Outside of state jurisdiction;
h. Rights-of-way or utility sites;
i. Condominiums;
j. Airport lands;
k. State-owned lands;
l. Conveyances prior to July 1, 1974;
m. Lands acquired for state highways.
2. Divisions of land exempt from review as a subdivision but subject to surveying requirements and applicable zoning regulations include:
a. Relocating common boundaries outside of platted subdivisions;
b. Gift or sale to an immediate family member;
c. Agricultural covenant;
d. Relocation of common boundaries for five (5) or fewer lots within a subdivision;
e. Relocation of common boundaries for a single lot within a platted subdivision and land outside the subdivision;
f. Aggregation of parcels.
3. The following format is used to describe criteria for each specific exemption:
a. A description of the exemption, expressed as “This exemption applies to”;
b. A description of the required documentation the landowner is required to provide at the initial submittal; and
c. Review Criteria: The use of the exemption shall be considered an evasion of the Act if the Subdivision Administrator finds existence of any one of the review criteria listed in the following sections or the general criteria listed in subsection A, General Criteria, above.
C. Divisions Of Land Exempt From Review As A Subdivision And Exempt From Surveying Requirements:
1. Court-Ordered Division (section 76-3-201(1)(a), Montana Code Annotated): This exemption applies to:
a. Land divisions created by court order; or
b. Land divisions that could be created by an order of any court pursuant to the law of eminent domain, Title 70, Chapter 30, Montana Code Annotated and for which there has been no agreement between parties to the sale.
(1) Required Documentation:
(A) Documents required per section 12-2-7A; and
(B) Copy of the order issued by the court.
(2) Review Criteria:
(A) No court order is filed;
(B) No transfer documents accompany the recording of the division; or
(C) The governing body has not been allowed to present written comment on the division prior to the court order; or
(D) The division creates more than four (4) new lots or parcels.
2. Mortgage Security (sections 76-3-201(1)(b) and 76-3-201(3), Montana Code Annotated): This exemption applies to:
a. A division of land of any size to provide security for mortgages, reverse mortgages, liens, or trust indentures for the purpose of construction, improvements to the land being divided, or refinancing purposes;
b. Land that is divided and conveyed to a licensed financial or lending institution to which the mortgage, lien, or trust indenture was given, or to a purchaser upon foreclosure of the mortgage, lien, or trust indenture. A transfer of the divided land, by the owner of the property at the time the land was divided, to any party other than those identified in the preceding sentence subjects the division of land to the requirements of the Act and these regulations; and
c. Only the parcel that is created to provide security under this subsection. Any subsequent division of the remaining tract of land, if applicable, is subject to the provisions of the Act and these regulations.
(1) Required Documentation:
(A) Documents required per subsection 12-2-7A;
(B) Documentation that the lending institution is a licensed financial or lending institution registered to do business in the State of Montana;
(C) A signed, notarized statement from the landowner(s) certifying:
i. The landowner will retain title to the entire tract of record until such time as the mortgage exemption parcel may be foreclosed upon;
ii. The purpose of the mortgage, lien, or trust indenture is for construction, improvements to the land being divided, or refinancing;
iii. The transfer of ownership of the separate mortgage exemption parcel will occur only upon foreclosure; and
iv. The landowner will not transfer ownership of the remaining tract unless the mortgage exemption parcel has been foreclosed upon or the landowner has submitted a subdivision application and received final plat approval for the subdivision of the mortgage exemption parcel and the remaining portion.
(D) A draft of any certificate of survey proposed for the mortgage exemption parcel, or of any other document proposed to be filed with the Clerk and Recorder establishing the mortgage exemption parcel. The survey title shall include the exact wording of the exemption as found in sections 76-3-201(1)(b), and (3), Montana Code Annotated.
(2) Review Criteria:
(A) Financing is not for construction, improvements to the exempted parcel, or refinancing;
(B) There exists a prior agreement to default or a prior agreement to purchase only a portion of the original tract;
(C) The division of land is created for the purpose of conveyance to any entity other than the financial or lending institution to which the mortgage, lien or trust indenture was given, or to a purchaser upon foreclosure of the mortgage, lien or trust indenture; or
(D) The notarized statements and draft certifications required as documentation have not been provided.
3. Severed Interest (section 76-3-201(1)(c), Montana Code Annotated): This exemption applies to divisions that sever interest in oil, gas, minerals, or water from surface ownership.
a. Required Documentation: Proposed document to be filed to establish the division or a copy of any survey proposed to be filed; either document must include the exact wording of the exemption in section 76-3-201(1)(c), Montana Code Annotated for subsurface interest and a notarized statement that there is no division of surface ownership or creation of new surface parcels.
b. Review Criterion: The division will create divisions of surface ownership into parcels of one hundred sixty (160) acres or less.
4. Cemetery Lots (Section 76-3-201(1)(d), Montana Code Annotated): This exemption applies to divisions for cemetery lots.
a. Required Documentation:
(1) Documents required per subsection 12-2-7A; and
(2) The document or survey to be filed including a statement limiting the use of the lots to cemetery lots only.
b. Review Criterion: Lots are not restricted to cemetery lot use only.
5. Life Estate (Section 76-3-201(1)(e), Montana Code Annotated): This exemption applies to divisions for life estates as provided for in Title 70, Chapter 15 of the Montana Code Annotated.
a. Required Documentation:
(1) Documents required per subsection 12-2-7A; and
(2) The document to be filed including a statement that the interest is a life estate.
b. Review Criteria:
(1) The life estate does not qualify under provisions of Title 70, Montana Code Annotated; or
(2) The document that establishes the life estate does not state that the life estate parcel is temporary, and no longer a valid legal parcel after the death of the holder.
6. Agricultural Lease (Section 76-3-201(1)(f), Montana Code Annotated): This exemption applies to parcels that will be rented or leased for farming and agricultural purposes.
a. Required Documentation:
(1) Documents required per section 12-2-7; and
(2) The documents to be filed shall include a statement limiting the use of the parcel or parcels to agricultural lease or rent only.
b. Review Criteria:
(1) The division is created for the purpose of conveyance;
(2) The use is something other than rent or lease for farming or agricultural purposes;
(3) A residence or residences exist or are proposed on the parcel to be rented or leased; or
(4) Commercial uses exist or are proposed on the parcel to be rented or leased.
7. Federal And Tribal Lands (Section 76-3-201(1)(g), Montana Code Annotated): This exemption applies to Federal or tribal lands or other lands over which the state does not have jurisdiction.
a. Required Documentation: Documents required per section 12-2-7.
b. Review Criterion: The land is within the state’s jurisdiction.
8. Rights-Of-Way And Utilities (Section 76-3-201(1)(h), Montana Code Annotated): This exemption applies to rights-of-way as land dedication for city streets and other transportation systems typically requiring land dedication rather than easements; or sites for public utilities as defined in section 76-3-103, Montana Code Annotated.
a. Required documentation for rights-of-way:
(1) Documents required per section 12-2-7;
(2) Landowner approval or proof of eminent domain authority by the entity acquiring the right-of-way; and
(3) The document filed shall include a notarized statement from the recipient accepting the right-of-way, stating the purpose of the right-of-way, and noticing that under section 76-3-201, Montana Code Annotated a subsequent change in the use to residential, commercial, or industrial subjects the division to review.
b. Required documentation for utility sites:
(1) Documentation to verify the utility meets the definition in section 76-3-101, Montana Code Annotated;
(2) Documents required per section 12-2-7;
(3) Landowner approval or proof of eminent domain authority by the utility; and
(4) The document filed shall include a notarized statement from the utility accepting the utility site, stating the purpose of the site, and noticing that under section 76-3-201, Montana Code Annotated a subsequent change in the use to residential, commercial, or industrial subjects the division to review under the Act.
c. Review Criteria:
(1) The purposes are for other than rights-of-way or utility sites; or
(2) The entity for which a utility site is created does not meet the definition of a utility per section 69-3-101, Montana Code Annotated.
9. Certain Condominiums (Section 76-3-203, Montana Code Annotated):
a. This exemption applies to:
(1) Condominiums, townhomes, or townhouses, as defined in section 70-23-102, Montana Code Annotated, provided they are constructed on land subdivided in compliance with these regulations or on lots within incorporated cities and towns; and
(2) The approval of the original subdivision of land expressly contemplated the construction of the condominiums, townhomes, or townhouses and applicable park dedications required by section 76-3-621, Montana Code Annotated, are complied with; or
(3) The condominium, townhome, or townhouse proposal is in conformance with applicable zoning regulations where local zoning regulations are in effect.
b. Required documentation for previously reviewed divisions in areas without applicable zoning:
(1) A copy of the filed plat or final approved plan that included the review of the condominiums, townhomes, or townhouses as a subdivision;
(2) Evidence that the park requirements of section 76-3-621, Montana Code Annotated are complied with; and
(3) A proposed site plan if different from what was approved.
c. Required documentation for proposals in a zoned, incorporated municipality or in other areas with applicable zoning regulations:
(1) A legal description or other evidence that the parcel to be divided exists as a tract of record;
(2) The proposed site layout; and
(3) Evidence that the proposal complies with zoning.
d. Review Criteria:
(1) The proposed development does not comply with the requirements for unit ownership under Title 70, Chapter 23, Montana Code Annotated, or the definitions for a condominium, townhome or townhouse;
(2) The proposed development is within an incorporated municipality but does not conform to applicable zoning requirements;
(3) The proposed development is located outside of an incorporated and zoned municipality and was not previously reviewed and approved as a subdivision;
(4) The documents establishing the condominium division do not cite the exemption under section 76-3-203, Montana Code Annotated; or
(5) The documents establishing the condominium division are not recorded with the “Declaration of Unit Ownership” and all accompanying materials, as approved by the Montana Department of Revenue and as required for declarations per section 70-23-301, Montana Code Annotated.
10. Airport Lands (Section 76-3-205(1), Montana Code Annotated): This exemption applies to a division of land created by lease or rent of contiguous airport-related land owned by a city, a county, the state, or a municipal or regional airport authority if such use is for on-site weather or air navigation facilities, the manufacture, maintenance, and storage of aircraft, or air carrier-related activities.
a. Required Documentation:
(1) Documents required per section 12-2-7; and
(2) A map showing current ownership and location of the tract in relation to existing airport lands owned by the city, county, state, or a municipal or regional airport authority.
b. Review Criteria:
(1) Land is not owned by the city, county, state, or a municipal or regional airport authority;
(2) The proposed use is not for on-site weather or air navigation facilities, or not for the manufacture, maintenance, and storage of aircraft, or air carrier-related activities;
(3) Land is proposed for conveyance other than lease or rent.
11. State-Owned Lands (Section 76-3-205(2), Montana Code Annotated): This exemption applies to state-owned land, except for divisions that create a second or subsequent parcel from a single tract for sale, rent, or lease for residential purposes after July 1, 1974.
a. Required Documentation:
(1) Documents required per section 12-2-7;
(2) Documentation or a certified statement that there has been no previous division; and
(3) Documentation that the proposed division is not for sale, rent, or lease for residential purposes.
b. Review Criteria:
(1) The division creates a second or subsequent parcel from a single tract for sale, rent, or lease for residential purposes; or
(2) The land is not owned by the state.
12. Conveyances Prior To July 1, 1974 (Section 76-3-206, Montana Code Annotated): This exemption applies to any parcel created via deeds, contracts, leases, or other conveyances executed prior to July 1, 1974.
a. Required Documentation: No documentation is required to be submitted to the Subdivision Administrator for review as an exemption. Documentation will be required by the Clerk and Recorder to establish the legal existence of the parcel as a tract of record in accordance with section 12-2-6.
b. Review Criteria: None.
13. Lands Acquired For State Highways (Section 76-3-209, Montana Code Annotated): This exemption applies to lands acquired for state highways.
a. Required Documentation:
(1) The instrument of transfer must refer by parcel and project number to state highway plans which have been recorded in compliance with section 60-2-209, Montana Code Annotated; or
(2) If the 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 surveys and plats when presented for recording.
b. Review Criteria:
(1) The land is not being acquired for state highways; or
(2) The land is not describable by reference to recorded state highway plans or by certificates of survey or plats.
D. Divisions Or Aggregations Of Land Exempt From Subdivision Review, But Subject To Surveying Requirements And Zoning Regulations:
1. Relocation Of Common Boundaries (Outside Of Platted Subdivisions) (Section 76-3-207(1)(a), Montana Code Annotated): This exemption applies to relocating common boundary lines between adjoining properties.
a. Required Documentation:
(1) Documents required per section 12-2-7;
(2) Evidence that the proposed action complies with applicable zoning;
(3) A survey conforming to the requirements of the ARMs. If no survey is required per section 76-3-401, Montana Code Annotated because the area to be conveyed is describable as a 1/32 aliquot part, a copy of the document proposed to be recorded, which must include all of the information described above to be included for the survey, except for the survey itself;
(4) Draft language for certification by the Richland County Treasurer that all taxes and special assessments assessed and levied on the surveyed land have been paid; and
(5) The landowner’s signed and notarized statement on the survey that the area of the boundary relocation does not create an additional tract of record and is forever merged with existing parcels as shown on the survey, and that any restriction or requirement on the original parcel continues to apply to that portion after the boundary relocation.
b. Review Criteria:
(1) The boundary relocation would create an additional tract of record; or
(2) Parcels are not outside of platted subdivisions.
2. Relocation Of Common Boundaries (Within A Platted Subdivision) (Section 76-3-207(1)(d), Montana Code Annotated): This exemption applies to relocation of common boundaries for five (5) or fewer lots within a platted subdivision.
a. Required Documentation:
(1) Documents required per section 12-2-7;
(2) Evidence that the proposed action complies with applicable zoning;
(3) A survey conforming to the requirements of the ARMs, entitled “amended plat of the (insert the name of the subdivision);” and
(4) The landowners’ signed and notarized statement on the survey that the area of the boundary relocation does not create an additional tract of record, that the division does not involve or result in affecting more than five (5) lots within a platted subdivision, and is forever merged with existing parcels as shown on the survey, and that any restriction or requirement on the original parcel continues to apply to that portion after the boundary relocation.
b. Review Criteria:
(1) The boundary relocation would create an additional tract of record; or
(2) The division involves more than five (5) lots within a platted subdivision.
3. Relocation Of Common Boundaries (Between Lots Within And Outside Of Platted Subdivisions) (Section 76-3-207(1)(e), Montana Code Annotated): This exemption applies to relocation of a common boundary between a single lot within a platted subdivision and adjoining land outside a platted subdivision.
a. Required Documentation:
(1) Documents required per section 12-2-7;
(2) Evidence that the proposed action complies with applicable zoning;
(3) A survey conforming to the requirements of the ARMs;
(4) Draft language for certification by the Richland County Treasurer that all taxes and special assessments assessed and levied on the surveyed land have been paid;
(5) A certificate of survey that clearly distinguishes between the existing boundary location(s) and the new boundary location(s), conforms to the requirements of the ARMs, and is entitled “amended plat of the (insert the name of the subdivision)”; and
(6) The landowners’ signed and notarized statement on the survey that the area of the boundary relocation does not create an additional tract of record, the aggregation is forever merged with existing parcels to form the aggregate parcel(s) as shown on the survey, and that any restriction or requirement on the original parcel continues to apply to that portion after the aggregation.
b. Review Criteria:
(1) The boundary relocation would create an additional tract of record; or
(2) The division involves more than one lot within a platted subdivision.
4. Gift Or Sale To Immediate Family (Section 76-3-207(1)(b), Montana Code Annotated):
a. This exemption applies to:
(1) Parcels located outside of a platted subdivision;
(2) A single gift or sale in each County to each member of the landowner’s immediate family with the term “immediate family” meaning the spouse, children (by blood or adoption), or parents of the landowner (section 76-3-103(8), Montana Code Annotated). This exemption does not apply when the land is owned by corporal legal entities such as corporations, companies, partnerships, and trusts.
b. Required Documentation:
(1) Documents required per section 12-2-7;
(2) A written statement from the landowners as to the intended purpose of the division, indicating the name and relationship of the person who will receive the land and that this action does not result in more than one gift or sale of a parcel to each member of the landowner’s immediate family in the County;
(3) Evidence that the proposed action complies with applicable zoning;
(4) A survey conforming to the requirements of the ARMs. If no survey is required per section 76-3-401, Montana Code Annotated because the area to be conveyed is describable as a 1/32 aliquot part, a copy of the document proposed to be recorded, which must include all of the information described above to be included for the survey, except for the survey itself; and
(5) Draft language for certification by the Richland County Treasurer that all taxes and special assessments assessed and levied on the land have been paid.
c. Review Criteria:
(1) The parcel to be transferred is within a platted subdivision;
(2) There has been a previous transfer of land in the Richland County Treasurer from the landowner to the same individual using the family transfer exemption;
(3) The recipient does not qualify as an immediate family member; or
(4) The landowner is a corporal legal entity such as a corporation, company, partnership, or trust.
5. Divisions Of Land Proposed For Agricultural Use Only (Section 76-3-207(1)(c), Montana Code Annotated):
a. This exemption applies to parcels located outside of a platted subdivision when:
(1) The landowner agrees to gift, sell, or enter into an agreement to buy/sell a portion thereof to be used exclusively for agricultural purposes; and
(2) Parties to the gift, sale, or agreement to buy/sell establish a covenant running with the land, revocable only by mutual consent of the governing body and the property owner, stating that the divided land will be used exclusively for agricultural purposes; and
(3) Any change in the use of the land for anything other than agricultural purposes subjects the parcel to review as a subdivision except as provided in subsection D5c(3) below.
b. Required Documentation:
(1) Documents required per section 12-2-7;
(2) A written statement from the landowners as to the intended agricultural purpose, and evidence that the parcel is large enough to accommodate that use;
(3) Evidence that the proposed action complies with applicable zoning;
(4) Documents establishing a written covenant that runs with the land, restricting use of the property to agricultural purposes only. The covenant language shall clarify that it is revocable only by mutual consent of the governing body and the property owner and that prior to officially revoking the covenant the parcel must be reviewed as a subdivision. The covenant shall be signed by all parties to the gift, sale, or agreement to buy/sell, and the governing body; and
(5) A survey signed by the landowners and conforming to the requirements of the ARMs (the survey must bear a signed and acknowledged recitation of the covenant on the face of the survey). If no survey is required per section 76-3-401, Montana Code Annotated because the area to be conveyed is describable as a 1/32 aliquot part, a copy of the document proposed to be recorded, which must include all of the information described above to be included for the survey, except for the survey itself.
c. Review Criteria:
(1) Any use other than agricultural is proposed; or
(2) Non-agricultural buildings or structures are present on a tract of record created pursuant to this exemption.
(3) The governing body, in its discretion, may revoke the agricultural covenant provided for in section 76-3-207(1)(c), Montana Code Annotated and the division may proceed without subdivision review if:
(A) The original lot lines are restored through aggregation of the covenanted land prior to or in conjunction with the revoking of the covenant; or
(B) A government or public entity seeks to use the land for public purposes as enumerated in section 70-30-102, Montana Code Annotated. If the governing body proposes to revoke a covenant for public purposes the governing body shall hold a public hearing. Within fifteen (15) days of the hearing, the governing body shall issue written findings of fact and a decision based on the records. If the governing body approves the revoking of the covenants, the approval must be recorded with the Clerk and Recorder.
(C) The revocation of a covenant pursuant to this section does not affect sanitary restrictions imposed under Title 76, Chapter 4, Montana Code Annotated.
6. Aggregation of Lots (Section 76-3-207(1)(f), Montana Code Annotated): This exemption applies to the aggregation of parcels or lots when a certificate of survey or subdivision plat shows that the boundaries of the original parcels have been eliminated and the boundaries of a larger aggregate parcel are established. A restriction or requirement on the original platted lot(s) or original un-platted parcel(s) continues to apply to those areas.
a. Required Documentation:
(1) Documents required per section 12-2-7;
(2) Evidence that the proposed action complies with applicable zoning;
(3) A survey conforming to the requirements of the ARMs that clearly distinguishes between the existing boundary location(s) and the new boundary location(s), entitled “amended plat of the (insert the name of the subdivision)” when the aggregation affects lots within a subdivision. If no survey is required per section 76-3-401, Montana Code Annotated because the area to be conveyed from one property to another is describable as a 1/32nd aliquot part, a copy of the document proposed to be recorded, which must include all of the information described above to be included for the survey, except for the survey itself;
(4) Draft language for certification by the Richland County Treasurer that all taxes and special assessments assessed and levied on the surveyed land have been paid;
(5) The landowners’ signed and notarized statement on the survey that the aggregation is forever merged with existing parcels to form the aggregate parcel(s) as shown on the survey, and that a restriction or requirement on the original parcel continues to apply to that portion after the aggregation.
b. Review Criteria:
(1) The aggregation would create a new tract of record in addition to the aggregated parcel; or
(2) The aggregation eliminates existing restrictions or requirements.
(3) That the aggregation does not involve or result in affecting more than five (5) lots within a platted subdivision. (Ord. 591, - -2021)