Publisher's Note: This Section has been AMENDED by new legislation (Ord. 24-02). The text of the amendment will be incorporated below when the ordinance is codified.
A. Final Plat: After receiving the preliminary plat approval or conditional approval, the subdivider may proceed with the preparation and submission of the final plat of the proposed subdivision. All required improvements must either be installed, or the subdivider must enter into a subdivision improvements agreement with the city council prior to the filing of the final plat guaranteeing the installation of remaining improvements.
The final plat must be reviewed for conformance with the conditions of preliminary plat approval, proper final engineering and subdivision design, the proper dedication of lands required for public use and adequate construction of public improvements. The final plat must incorporate all modifications required as part of the preliminary plat approval and current city of Whitefish engineering standards.
B. Phasing Of Final Plat Submittals: The applicant, as part of an approved preliminary plat, may have delineated two (2) or more phases of the subdivision. Each of those phases can be filed as a separate final plat and need not necessarily be filed sequentially provided subsections 12-3-5
B or 12-3-6
C of this chapter and MCA 76-3-617 are met.
1. If no phasing plan was indicated on the preliminary plat approval, the applicant may submit to the planning department a plan outlining anddelineating each phase of the subdivision, a general time frame for each phase, and a plan denoting which improvements will be completed with each phase. Prior to submittal of the final plat application, the phasing plan must be approved by the planning, public works and fire departments. The phasing plan must not result in significant or material changes to the subdivision nor result in adverse and unanticipated impacts to the surrounding properties.
2. Minor modifications to an approved phasing plan which do not change impacts on any adjoining property may be submitted to the planning director for review and approval.
C. Commencement of Each Phase: For any phase of the approved subdivision submitted for final plat approval more than five (5) years after the date of preliminary approval of the subdivision, after the initial phase, the subdivider must provide written notice to the Planning Department not more than one (1) year or less than ninety (90) days in advance of submitting the final plat application. Commencement means after all the engineering plans are approved but before any pre-construction meeting or any grading or excavation. If all the infrastructure is installed for the entire project, it is not a phased subdivision under this provision.
1. Within thirty (30) working days of the request, the Planning Department must schedule a public hearing before the City Council in accordance with 76-3-617, MCA. The Planning Department must draft a report evaluating the application and propose findings on whether there are any changed circumstances justifying amending any condition of approval or imposing additional conditions of approval, primary review criteria impacts or if new information exists that creates new potentially significant adverse impacts. This report will accompany the application materials submitted by the applicant for City Council review.
2. The City Council must determine whether any changed primary criteria impact or new information exists that creates new potentially significant adverse impacts for the phase or phases. The City Council may amend or impose necessary, additional conditions only if it determines, based on a review of the primary criteria, that the existing conditions of approval are inadequate to mitigate the potentially significant adverse impacts identified during the original review based on changed circumstances.
a. If significant adverse impacts are identified, the City Council must issue supplemental written findings of fact no more than twenty (20) working days after the hearing.
b. If no new significant adverse impacts are identified, the City Council must issue supplemental written findings of fact no more than twenty (20) working days after the hearing. The written statement must document that there are no new significant adverse impacts.
D. Final Plat Submittal: A complete application for final plat approval must be submitted to the planning department at least ninety (90) days prior to the expiration date of the preliminary plat. Complete final plat applications submitted less than ninety (90) days prior to expiration have the possibility of expiring prior to city council review and final action. A final plat is considered received on the date of delivery to the planning department when accompanied by the review fee. The planning department has a twenty (20) working day review period. If the application meets the requirements outlined in this subsection, staff will then schedule the item for city council. The submittal must include the following:
1. Written application form provided by planning department;
2. Application review fee as set by the city council;
3. A written explanation as to how all of the conditions of approval are met;
4. All attachments to the final plat, as specified in appendix C, "Final Plat Contents And Requirements", attached to the ordinance codified herein;
5. Certification by the subdivider indicating which required improvements are completed on the site or are subject to an attached subdivision improvements agreement in conformance with these regulations securing the future construction of public improvements.
6. The complete application in an acceptable electronic format.
E. Action By The Planning Department: The planning department will review the submitted plat and documents with regards to:
1. Compliance with the approved preliminary plat;
2. Compliance with the conditions of approval imposed by the city council;
3. Compliance with the subdivision regulations;
4. Compliance with the Montana subdivision and platting act;
5. Compliance with other ordinances, regulations and policies adopted by the city of Whitefish.
If the planning department determines the submitted final plat and attachments are complete and in substantial compliance with all established requirements, it will review and make its recommendation for approval to the City Council. The City Council must approve the completed final plat application and recommendation prior to actual expiration of the preliminary plat.
F. Action By The City Council: The city council must approve the final plat if the final plat conforms to:
1. The approved preliminary plat;
2. The conditions of approval set forth on the preliminary plat;
3. The Montana subdivision and platting act;
4. The subdivision regulations;
5. Other applicable ordinances, regulations and policies adopted by the city of Whitefish;
6. All the required improvements are installed or a written subdivision improvements agreement with the City of Whitefish pursuant to these regulations is executed.
If the final plat is denied, the reasons for denial must be stated in the minutes of the city council and a copy forwarded to the subdivider. The city council may withdraw approval of a plat if it determines information provided by the subdivider, and upon which such approval was based, is inaccurate, but such withdrawal may occur only after prior written notice to the subdivider and an opportunity for the subdivider to respond. The acceptance of land dedications must be made by specific action of the city council and must be noted on the plat.
The City Council must approve or deny a final plat application within twenty (20) working days after receiving the planning department recommendation, unless the subdivider waives in writing the right to have such a decision within the prescribed time limit. The city council must notify in writing the subdivider and the planning department of its approval or denial of the final plat.
A party identified in Montana Code Annotated section 76-3-625(3) aggrieved by a decision of the City Council to approve, conditionally approve, or deny an application and preliminary plat for a proposed subdivision or a final subdivision plat may, within thirty (30) days after the decision, appeal to the Flathead County District Court. The petition must specify the grounds upon which the appeal is made.
G. Final Plat Recording: The subdivider has thirty (30) days from the date of the approval of the final plat to record the approved final plat and required documents with the Flathead County Clerk and recorder. No building permits will be issued the final plat is recorded.
H. Improvements Required Prior To Final Plat: Improvements required to be completed prior to submitting an application for final plat include complete street improvements, sidewalks, walkways, streetlights, street signs, utilities, water, hydrants, sewer, stormwater/drainage improvements, and solid waste facilities. Other required improvements' installation may be delayed through the use of a subdivision improvement agreement, as provided for in this section. The following procedures and requirements apply unless the completion of improvements is deferred.
1. Completion Of Improvements: All improvements required under these regulations and the conditions imposed by the City Council at the time of approval of the preliminary plat must be completed prior to the approval of the final plat, unless the subdivider defers completion of required improvements subject to the execution of a subdivision improvements agreement.
2. Certification Of Improvements: The subdivider must file with the city engineer and the public works department copies of final construction plans, road profiles, proposed grades and specifications for improvements and copies of final as built plans, profiles, grades and specifications for all improvements.
3. Inspection And Certification Of Improvements: The subdivider will provide for inspection of all required public improvements by a professional engineer before final plat approval when installation is a condition of approval, or before the city releases the subdivider from the subdivision improvements agreement. Should the subdivider fail to meet the requirements of this section, the city may provide for such inspection and the cost must be borne by the subdivider. Upon completion of the inspection, the inspecting engineer must file with the city a statement either certifying the improvements have been completed in the required manner or listing the defect in those improvements. The statement from a professional engineer licensed in the state of Montana must certify the following:
a. All required improvements are complete;
b. The improvements are in compliance with the plans and specifications approved by the city engineer, the public works department, the fire chief or designee and planning department;
c. The engineer must certify there are no known defects in these improvements;
d. The improvements are free and clear of any encumbrance or lien; and
e. All applicable fees and surcharges have been paid.
I. Subdivision Improvements Agreements: The city must specify in subdivision improvements agreements all improvements required to be completed after the final plat is approved. The city must specify the improvements be constructed to standards included in these regulations and other city standards. A subdivision improvement agreement may not include streets, sidewalks, walkways, streetlights, street signs, utilities, water, hydrants, sewer, stormwater/drainage improvements, or solid waste but may include, but are not limited to, shared use paths, park and recreational facilities, landscaping, and other improvements, as required by the city.
1. Time Limits: All public improvements must be completed within the time schedule approved by the city and stated in the subdivision improvement agreement. However, in no case will this period exceed twenty four (24) months from the date of approval of the final plat by the city.
2. Subdivision Improvements Agreement Extension: At the discretion of the city council, an extension to the completion of the subdivision improvements may be extended for an additional twenty four (24) months provided the request is made in writing at least sixty (60) days prior to the expiration of the subdivision improvements agreement, an updated cost of improvements together with financial guarantee accompanies the request and the subdivider can show continued good faith in working toward finalizing the improvements.
3. Projected Costs: The subdivider must submit plans, specifications and cost estimates, prepared by a professional engineer or landscape architect, for the completion of all remaining improvements. The projected improvements cost must be one hundred twenty five percent (125%) of the current costs for completing the improvements. The submitted plans, specifications and projected costs must be reviewed and approved by the city engineer prior to submittal.
4. Contents Of Subdivision Improvements Agreements: The subdivision improvements agreements must include:
a. A commitment to complete the improvements within the specified time;
b. The projected costs of the improvements as approved by the city; and
c. A guarantee acceptable to the city and in a value equal to the approved projected costs equaling one hundred twenty five percent (125%) of the current cost of the improvements.
5. Subdivision Improvement Guarantee: The subdivider must provide a guarantee that the improvements will be satisfactorily completed. The guarantee must have a value equal to one hundred twenty five percent (125%) of the current projected costs of completing the improvements, as stated in these regulations. The guarantee must specify procedures for the city to obtain the funds should the subdivider fail to satisfactorily complete the improvements. The guarantee must have an expiration date sixty (60) days beyond the term of the subdivision improvements agreement. The types of guarantees acceptable to the city are described in this chapter. The method of guarantee must be subject to approval of the city.
6. Engineering Guarantee; Reduction And Release: Only after the inspecting engineer certifies improvements are complete and free from defect, and after receipt of other statements detailed above, the city must release the subdivider from the subdivision improvements agreement.
7. Landscaping/Park And Recreation Guarantee; Reduction And Release: Only after the inspecting landscaper certifies the improvements are complete, the planning and/or parks departments conducts an inspection, and the planning department receives a two (2) year, twenty percent (20%) maintenance guarantee based on materials and labor for the improvements, the city must release the subdivider from the subdivision improvement agreement.
8. Failure To Satisfactorily Complete Improvements: If city staff determines any improvements are not constructed in compliance with the specifications, they must furnish the subdivider with a list of specific deficiencies and may withhold collateral sufficient to ensure proper completion. If the city determines the subdivider will not construct any or all improvements to required specifications, or within the time limits, it may withdraw collateral and use these funds to construct the improvements and correct any deficiencies to meet specifications. Unused portions of these funds must be returned to the subdivider or crediting institution.
9. Acceptable Forms Of Guarantees: The subdivider must provide one or more of the following financial security guarantees, as approved and accepted by the city. The financial guarantee must equal one hundred twenty five percent (125%) of the amount of the projected costs of installing all required improvements. The city may incrementally reduce the financial security provided by the subdivider commensurate with the completion of improvements:
a. Escrow Account: The subdivider must deposit cash, or collateral readily convertible to cash at face value, either with the city or in escrow with a bank. The use of collateral other than cash, and the selection of the bank where the funds are to be deposited, must be approved by the city. Where an escrow account is to be used, the subdivider must give the city an agreement with the bank guaranteeing the following:
(1) That the funds in the escrow account are to be held in trust until released by the city and may not be used or pledged by the subdivider as security for any other obligation during that period.
(2) That should the subdivider fail to complete the required improvements, the bank must immediately make the funds in escrow available to the city for completing these improvements.
b. Letter Of Credit: Subject to city approval, the subdivider must provide the city with a letter of credit from a bank or other reputable institution or individual certifying the following:
(1) That the creditor guarantees funds in an amount equal to one hundred twenty five percent (125%) of the projected cost, as approved by the city, of completing all required improvements;
(2) That if the subdivider fails to complete the specified improvements within the required period, the creditor will immediately pay to the city upon presentation of a sight draft without further action, an amount of cash necessary to finance the completion of those improvements, up to the limit of credit stated in the letter;
(3) An expiration date of the letter of credit sixty (60) days beyond the term of the subdivision improvements agreement;
(4) That the letter of credit may not be withdrawn or reduced in amount until released by the city.
c. Surety Performance Bond: The bond must be executed by a surety company authorized to do business in the state of Montana and acceptable as a surety to the city and countersigned by a Montana agent. The bond must be payable to the city. The bond must be in effect until the completed improvements are accepted by the city.
d. Other Acceptable Guarantee(s): The City Council, at its discretion, may accept any other reasonable guarantee not stated herein, to ensure satisfactory completion of the improvements.
e. Sequential Development Of Improvements: The City Council may approve an incremental payment or guarantee plan. The improvements in a prior increment must be completed or the payment or guarantee of payment for the costs of the improvements incurred in a prior increment must be satisfied before development of future increments.
f. Special Improvement District: The City Council may enter into an agreement with the subdivider, and the owners of the property proposed for subdivision if other than the subdivider, that the installation of required improvements will be financed through a special improvement district created pursuant to Montana Code Annotated Title 7, Chapter 12. The agreement must provide that no lots within the subdivision will be sold, rented or leased, and no contract for the sale of lots executed before the improvement district has been created.
The subdivider, or other owners of the property involved, must also petition the city council to create a special improvement district, which constitutes a waiver by the subdivider and/or the subsequent owners of the property of the right to protest or petition against the creation of the district under Montana Code Annotated Section 7-12-4110. This waiver must identify the specific capital improvements for which protest is being waived and must be filed with the Flathead County Clerk and recorder and will be deemed to run with the land.
J. Changes To The Final Plat: Insignificant changes which have a minimal impact on the scale or scope of the project or immediate neighborhood must be so noted in the planning department report to the City Council. Changes which either the planning director or the city council determines to be substantial must be returned to the Planning Board for rehearing and consideration as amendments to the original preliminary plat following procedures outlined in these regulations. The time frames identified in section 12-3-4D of this chapter apply to amended preliminary plats. Substantial changes would include:
1. The reconfiguration or rearrangement of six (6) or more lots;
2. Increasing the number of lots;
3. Significant changes to the road systems or layout;
4. The elimination of park land, open space or common areas;
5. Changes to the location of buildings, access or parking.
K. Deletions Or Substantial Changes To Conditions Of Approval: When requesting a deletion or substantial change to any condition of written approval except when a condition of approval is effectively changed as a result of new or modified governmental regulations, the subdivider will be scheduled for a public hearing for an expedited or a major subdivision, public meeting for a minor subdivision before the City Council or review by the planning director for an administrative minor subdivision. The subdivider must submit a narrative indicating the reasoning for the request and how the request will not change the overall plan. Staff will notice adjacent landowners according to the requirements in subsections 12-3-5
C(2) for expedited preliminary plat, 12-3-6
D(2) for a major subdivision, 12-3-7
B(2) for a minor subdivision or 12-3-8
B(1) for an administrative minor subdivision.
L. Sale Of Lots Prior To Final Plat Approval: A final subdivision plat must be approved and filed for record with the Flathead County Clerk and recorder before title to the subdivided land can be sold or transferred in any manner. However, after the preliminary plat of a subdivision has been approved or conditionally approved, the subdivider may enter into contracts to sell lots in the proposed subdivision if all of the following conditions are met:
1. Under the terms of the contracts, the purchasers of the lots in the proposed subdivision make any payments to an escrow agent which must be a bank or savings and loan association chartered to do business in the State of Montana;
2. Under the terms of the contracts and the escrow agreement, the payments made by purchasers of lots in the proposed subdivision may not be distributed by the escrow agent to the subdivider until the final plat of the subdivision is filed with the Flathead County Clerk and Recorder;
3. The contracts and the escrow agreement provide that, if the final plat of the proposed subdivision is not filed with the Flathead County Clerk and Recorder within the period of the preliminary plat approval, the escrow agent must immediately refund to each purchaser any payments made under the contract;
4. The Flathead County Treasurer has certified that no real property taxes assessed and levied on the land to be divided are delinquent; and
5. The contracts contain the following language conspicuously set out therein: “The real property which is the subject of this contract has not been finally platted, and until a final plat identifying the property has been filed with the Flathead County Clerk and Recorder, title to the property may not be transferred in any manner.” (Ord. 09-23, 11-16-2009; amd. Ord. 12-13, 12-3-2012; Ord. 21-15, 9-20-2021; Ord. 23-15, 8-21-2023)