A. The following criteria must be used to ensure exemptions are not claimed for the purposes of evading this chapter or the MSPA. Appeals regarding the final decision by the planning department about an evasion of the MSPA may be taken in the manner established for administrative project decision appeals as set forth in § 12-2-8.
1. For lots within a platted subdivision, relocation of common boundaries or the aggregation of lots (MCA 76-3-207(1)(d)):
a. The proper use of the exemption for relocation of common boundaries and/or aggregation of lots within platted subdivisions does not increase the total number of lots within the subdivision. The plat must contain the title "amended plat" and be filed with the county clerk and recorder.
b. The amended plat must be accompanied by:
(1) An original deed exchanging recorded interest from every person having a recorded interest in adjoining properties for the entire newly described parcel(s) which is acquiring land;
(2) Documentation showing the need or reason for the relocation (for example: structure encroachment, surveyor error, or enhancement of the property configuration); and
(3) The amended plat must bear the signatures of all landowners whose parcels are changed by the relocation or aggregation. The amended plat must show the exemption was used only to change the location of boundary lines or aggregate lots and must clearly distinguish the prior boundary (dashed line) from the new boundary (solid line).
c. An evasion of the MSPA may be presumed if either:
(1) The relocation crosses the boundary of a public or private street right of way or the external boundary of the subdivision, or
(2) The relocation of common boundaries or aggregation of lots results in an increase in the number of lots in the subdivision.
2. For division made outside of platted subdivisions for the purpose of relocating common boundary lines between adjoining properties (MCA 76 3 207(1)(a)):
a. The proper use of the exemption allowing for relocating common boundary lines is to establish a new boundary between adjoining properties outside of a platted subdivision without creating an additional parcel.
b. A certificate of survey for the relocation of common boundary lines may include five or fewer parcels and/or lots.
c. Certificates of survey showing the relocation of common boundary lines must be accompanied by:
(1) An original deed exchanging recorded interest from every person having a recorded interest in adjoining properties for the entire newly described parcel that is acquiring additional land;
(2) Documentation showing the need or reason for the relocation (for example, structure encroachment, surveyor error, or enhancement of the configuration of the property); and
(3) The certificate of survey must bear the signatures of all landowners whose parcels are changed by the relocation, show the exemption was used only to change the location of a boundary line dividing two parcels, and clearly distinguish the existing boundary location with a dashed line and the new boundary location with a solid line.
3. For divisions made for the purpose of relocating a common boundary line between a single lot within a platted subdivision and adjoining land outside a platted subdivision (MCA 76-3-207(1)(e)):
a. The proper use of the exemption for relocation of common boundaries and/or aggregation of lots within platted subdivisions does not increase the total number of lots within the subdivision. The plat must contain the title “amended plat” and be filed with the country clerk and recorder.
b. A certificate of survey for the relocation of common boundary lines may only include five or fewer parcels and/or lots.
c. Certificates of survey showing the relocation of common boundary lines must be accompanied by:
(1) An original deed exchanging recorded interest from every person having a recorded interest in adjoining properties for the entire newly described parcel that is acquiring additional land;
(2) Documentation showing the need or reason for the relocation (for example, structure encroachment, surveyor error, or enhancement of the configuration of the property); and
(3) The certificate of survey must bear the signatures of all landowners whose parcels are changed by the relocation, show the exemption was used only to change the location of a boundary line dividing two parcels, and clearly distinguish the prior boundary (dashed line) from the new boundary (solid line).
d. An evasion of the MSPA may be presumed if:
(1) The planning department determines the documentation submitted does not support the stated reason for relocation, or an additional parcel is created.
(2) More than five parcels and/or lots are included.
4. For lots within a platted subdivision, divisions made for the purpose of creating sublots on which to build townhouses subject to zoning regulations (MCA 76-3-203):
a. The proper use of the exemption is to create sublots and construct townhouses when the original division of land has already been reviewed under the MSPA or the creation of sublots and townhouses is in conformance with applicable zoning regulations. A restriction or requirement on the original platted lot continues to apply to any sublots created.
b. An amended plat of the original subdivision showing the new sublots must be filed and comply with the standards for final plats.
c. An evasion of the MSPA may be presumed if:
(1) The planning department determines the land in question was not previously subdivided with review under the MSPA or
(2) The planning department determines the creation of sublots and proposal for townhouses is not in conformance with the applicable zoning regulations.
5. For division 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 (MCA 76-3-207(1)(b)):
a. A member of the immediate family is the spouse of the grantor, or whether by blood or adoption, a son, daughter, mother, or father of the grantor and may be owned jointly with that immediate family member's spouse.
b. The proper use of the exemption as a gift or sale to a member of the immediate family is to convey one parcel of land outside a platted subdivision to each member of the landowner's immediate family in each county, providing that the use of the exemption creates no more than one additional parcel of less than one hundred and sixty (160) acres in size.
c. A certificate of survey for a family transfer may include more than one exempt parcel if all parcels meet the criteria of this section.
d. Certificates of survey showing the creation of new parcels of land pursuant to this exemption as a gift or sale to a member of the immediate family must be accompanied by an original deed transferring interest in the parcel being created, or a statement detailing where the deed is in escrow, how long it will be in escrow, and authorization to contact the escrow agent for verification.
e. The certificate of survey for an exemption for a family transfer must indicate the name of the grantee, the relationship of the grantee to the landowner, and the parcel to be conveyed to the grantee and that the parcel will not be transferred or otherwise conveyed for a period of two (2) years.
f. An evasion of the MSPA may be presumed if one or more of the following conditions exist:
(1) The exemption would create more than one additional parcel of less than one hundred and sixty (160) acres.
(2) An immediate family member would receive more than one exempted parcel in the county.
(3) The grantee is not an immediate family member of the landowner.
6. For division made outside of platted subdivisions by gift, sale, or an 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 and the property owner that the land will be used exclusively for agricultural purposes (MCA 76-3-201(1)(c)):
a. No building or structure requiring water or sewer facilities may be used on the parcel for which the exemption is claimed.
b. A change in use of the land for anything other than agricultural purposes subjects the division to this chapter and review under Parts 5 and 6 of the MSPA.
c. An evasion of the MSPA may be presumed if either:
(1) A building or structure requiring water or sewer facilities exists or is proposed for the exempted parcel.
(2) The use is not, or is changing to something other than, agricultural.
7. For a division of land created to provide security for mortgages, liens, or trust indentures for the purpose of construction, improvements to the land being divided for refinancing purposes (MCA 76-3-201(1)(b)):
a. The proper use of the exemption is to provide security for mortgages, liens, or trust indentures when a survey of the parcel has been required.
b. When the security for construction financing exemption is to be used, the landowner must submit, in addition to other documents that may be required, a written statement explaining:
(1) Home many parcels within the original tract will be created by use of the exemption;
(2) Who will have title to the remainder of the original parcel; and
(3) A signed and notarized 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.
c. An evasion of the MSPA may be presumed under the following conditions:
(1) 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
(2) The security is provided for construction or improvements on, or refinancing for, land other than the exempted parcel. (Ord. 09-23, 11-16-2009; amd. Ord. 21-15, 9-20-2021; Ord. 23-15, 8-21-2023)