Any person seeking exemption from the requirements of these regulations and the MSPA must submit to the planning director a paper copy of a certificate of survey, or if a survey is not required, an instrument of conveyance and a completed subdivision exemption affidavit which provides evidence of entitlement to the claimed exemption. The affidavit must be filed with the certificate of survey, unless otherwise not required, creating the parcel(s) subject to exemption:
A. Prior to submittal of the certificate of survey to the Flathead County clerk and recorder, a complete application, including the survey, must be reviewed within twenty (20) working days by the planning director for compliance with the Whitefish zoning jurisdiction regulations and applicable development standards. Existing buildings and structures must be indicated on the certificate of survey along with the building setbacks from property boundaries, existing and proposed land areas within the parcels or lots and any other relevant information related to the property.
1. For purpose of zoning compliance review, where two (2) contiguous lots, parcels or tracts of record are held in a common or single ownership, and where both tracts of record are nonconforming, they must be considered as a single site for the purpose of meeting the requirements of the zoning district in which they are located. This section considers lots as merged for the purposes of zoning regulation for size, setbacks or similar development standards but does not aggregate individual parcels of land in a manner described by section 76-3-103(17)(b), Montana Code Annotated.
2. Relocated or new property boundaries must not be located so existing buildings or structures do not comply with the required setbacks of the zoning district in which the properties are located. If existing buildings are nonconforming with regard to setbacks, the relocated property boundary may bring the building setback more in compliance and in no case will the relocated or new property boundary create a setback which is less compliant with the applicable zoning regulations.
3. Relocated or new property boundaries must not be established to create parcels or lots not in compliance with the minimum lot size requirements of the zoning district in which the properties are located.
4. A lot line adjustment between two (2) or more lots, parcels or tracts of record where neither lot complies with the minimum area requirements of the zoning district in which it is located may proceed with a lot line adjustment provided the final lot area for each lot(s) remains the same and neither lot(s) becomes more nonconforming with the underlying zoning standards.
5. Evidence of previous subdivision review and compliance with the MSPA must be provided when an exemption is claimed for the creation of sublots to construct townhouses and creation of sublots and townhouses is not in conformance with applicable zoning regulations.
6. No conditions may be imposed on the approval of a division of land under this section except for conditions necessary to ensure compliance with the survey requirements of Title 76, chapter 3, part 4.
B. For those parcels for which an exemption from subdivision review is claimed, a paper copy of the certificate of survey, in final form, and a subdivision exemption affidavit signed by the property owner and the planning director or designee must be submitted to the Flathead County clerk and recorder for review.
C. If the Planning Department determines the claimed exemption may constitute an evasion of the act under these regulations. The planning department must notify the landowner in writing and the landowner may withdraw the instrument or may request in writing within thirty (30) days of the date of written notification to the landowner by the planning department requesting a hearing before the city council.
D. If the Planning Department does not make such determination and the instrument otherwise complies with all laws, the instrument is eligible for recording.
E. Upon receipt of the written request for hearing, the council must set a time and place for the hearing and inform the landowner thereof. The planning department must provide an evaluation and recommendation on the subject instrument. At the hearing, the landowner may present any additional evidence in support of the claim of exemption. The council must approve or disapprove the proposed exemption within thirty (30) days of the receipt of the request for hearing. The council must provide written notification of its decision to the landowner or surveyor and the county clerk and recorder. If the proposed exemption is approved, the council must notify the county clerk and recorder that the instrument is deemed not to be an evasion of the act or these regulations. If the proposed exemption is disapproved, the council must instruct the county clerk and recorder not to file the exemption instrument. (Ord. 09-23, 11-16-2009; amd. Ord. 21-15, 9-20-2021; Ord. 23-15, 8-21-2023)