Loading...
(A) Generally.
(1) Subdivisions which qualify for major subdivision review are those divisions of land containing six or more lots, or subdivisions of five or fewer lots which do not otherwise qualify for review as first minor subdivisions under M.C.A. § 76-3-609 and these regulations.
(B) Subdivision application and preliminary plat submittal.
(1) The subdivider shall submit to the City a subdivision application containing the materials identified in § 9.6.25 and in the pre-application meeting.
(2) The requirement for preparing an environmental assessment, does not apply, pursuant to M.C.A. § 76-3-504 when:
(a) The proposed subdivision is totally within an area covered by a growth policy adopted pursuant to M.C.A. §§ 76-1-601 through 76-1-607;
(b) The City has adopted zoning regulations pursuant to M.C.A. §§ 76-2-301 through 76-2-328 (municipal zoning); or M.C.A. § 76-2-201 through 76-2-228 MCA (county zoning pursuant to a growth policy); and
(c) The City has adopted a strategy for development, maintenance, and replacement of public infrastructure pursuant to M.C.A. § 76-1-601(3)(e).
(C) Time period for approval, conditional approval, or denial.
(1) Time period. Within 60 working days, the governing body shall approve, conditionally approve or deny the proposed subdivision according to division (F) below of these regulations, unless the subdivider and the subdivision reviewer agree to an extension or suspension of the review period, or a subsequent public hearing is held pursuant to division (D) below of these regulations. The review period of 60 working days begins the day after the City’s subdivision reviewer notifies the subdivider or the subdivider’s agent in writing the subdivision application is sufficient for review.
(2) Public agency and utility review. Review and comment by public agencies or utilities may not delay the governing body’s action on the subdivision application beyond the 60-working day review period. The governing body will make these comments available to the subdivider and to the general public upon request. If, during the review of the application, the subdivision reviewer or the Planning Board contacts a public utility, agency or other entity not included on the list provided during the pre-application meeting, the subdivision reviewer shall notify the subdivider of the contact and the timeframe for response.
(D) Public hearings and notices.
(1) Hearings. The City shall hold a public hearing on the subdivision application when a hearing is required by these regulations.
(2) Notice.
(a) The City shall give notice of the times, dates and locations of the hearings by publication in a newspaper of general circulation in the county not less than 15 days prior to the dates of the hearing.
(b) At least 15 days prior to the dates of the hearing, the City shall give notice of the hearing by certified mail to the subdivider, each adjoining landowner to the land included in the preliminary plat, and each purchaser under contract for deed of property immediately adjoining the land included in the preliminary plat.
(c) The subdivider shall post notices at conspicuous places on the site of the proposed subdivision.
(E) City public hearing.
(1) The City of White Sulphur Springs may, from time to time, have a dysfunctional or non-existent Planning Board. In such circumstances, the Planning Staff will notify the subdivider and the public hearing will be before the City Council. If a Planning Board exists, a public hearing shall be set, with notice as required by law.
(2) All comments and documents regarding the subdivision shall be submitted to the City Planning Staff, to be forwarded to the Planning Board or City Council, as applicable.
(F) Governing body decision and documentation.
(1) Prerequisites to approval. The City may not approve or conditionally approve a subdivision application and preliminary plat unless the proposed subdivision:
(a) Provides easements for the location and installation of any planned utilities;
(b) Provides legal and physical access to each lot within the subdivision and the notation of that access on the applicable plat and any instrument transferring the lot;
(c) Assures all required public or private improvements will be installed before final plat approval, or their installation after final plat approval will be guaranteed as provided by these regulations;
(d) Assures the requirements of M.C.A. § 76-3-504(j) regarding the disclosure and disposition of water rights as set forth in § 9.6.110 have been considered and will be accomplished before the final plat is submitted;
(e) Assures that the requirements of M.C.A. § 76-3-504(k) regarding watercourse and irrigation easements as set forth in § 9.6.109 have been considered and will be accomplished before the final plat is submitted; and
(f) Provides for the appropriate park dedication or cash-in-lieu.
(2) Consideration - standards. In approving, conditionally approving, or denying a subdivision application and preliminary plat, the City shall consider division (F)(1) above, and whether the proposed subdivision complies with:
(b) Applicable land use regulations;
(c) Other applicable regulations;
(d) The MSPA, including but not limited to the following impacts:
1. Impact on agriculture;
2. Impact on agricultural water user facilities;
3. Impact on local services;
4. Impact on the natural environment;
5. Impact on wildlife and wildlife habitat; and
6. Impact on public health and safety.
(e) Proposed mitigation.
(3) Consideration - evidence.
(a) In making its decision to approve, conditionally approve, or deny a proposed subdivision, the City may consider and weigh the following, as applicable:
1. The subdivision application and preliminary plat;
2. The environmental assessment;
3. The summary of probable impacts and mitigation;
4. An officially adopted growth policy;
5. Comments, evidence and discussions at the public hearing(s);
6. Subdivision reviewer’s staff report and recommendations; and
7. Any additional information authorized by law.
(b) Notwithstanding the foregoing, the City may not consider any information regarding the subdivision application presented after the final public hearing (which may include a subsequent hearing if any) when making its decision to approve, conditionally approve, or deny the proposed subdivision.
(4) Water and sanitation - special rules.
(a) Water and sanitation information provided during the application review process, including public comment, may be used as a basis for a conditional approval or denial of a subdivision only if the governing body finds the application does not comply with previously adopted subdivision, land use, floodplain or other regulations.
(b) For a proposed subdivision which will create one or more lots containing less than 20 acres, the subdivider shall obtain approval by the DEQ as a condition of approval of the final plat.
(5) Documentation of City decision.
(a) In rendering its decision to approve, conditionally approve, or deny the proposed subdivision, the City shall issue written findings of fact which discuss and weigh the proposed subdivision’s compliance with the preceding divisions (F)(1) through (F)(4).
(b) When the City approves, denies, or conditionally approves the proposed subdivision, it shall send the subdivider a letter, with the appropriate signature, and make the letter available to the public. The letter shall:
1. Contain information regarding the appeal process for the denial or imposition of conditions;
2. Identify the regulations and statutes which are used in reaching the decision to approve, deny, or impose conditions and explain how they apply to the decision;
3. Provide the facts and conclusions which the City relied upon in making its decision and reference documents, testimony, or other materials which form the basis of the decision;
4. Provide the conditions which apply to the preliminary plat approval and which must be satisfied before the final plat may be approved; and
5. Set forth the time limit for approval, pursuant to division (F)(6) below.
(6) Subdivision application and preliminary plat approval period.
(a) Upon approval or conditional approval of the preliminary plat, the governing body shall provide the subdivider with a dated and signed statement of approval. The approval shall be in force for no more than three calendar years.
1. At least 30 days prior to the expiration of the preliminary plat approval, the governing body may, at its discretion and at the written request of the subdivider, extend its approval for a period of one additional year.
2. The governing body may extend the approval for more than one year if a longer approval period is included as a specific condition of a written Subdivision Improvements Agreement between the governing body and the subdivider, provided for in these regulations.
(b) After the application and preliminary plat are approved, the City may not impose any additional conditions as a prerequisite to final plat approval unless the preliminary plat approval expires, at which time a new application shall be required.
(c) The City may withdraw approval or conditional approval of an application and preliminary plat if it determines the information provided by the subdivider, and upon which the approval or conditional approval was based, is inaccurate.
(G) Amended applications.
(1) If the subdivider changes the subdivision application or preliminary plat after the City Planning Staff makes a determination of sufficiency pursuant to this chapter but before the City Public Hearing, the subdivider shall submit the amended application to the subdivision reviewer for review.
(a) Within five working days of receiving the amended application or preliminary plat, the City Planning Staff shall determine whether the changes to the subdivision application or preliminary plat are material, pursuant to division (G)(4) below.
(b) The 60-working day review period is suspended while the City Planning Staff considers whether the changes to the subdivision application or preliminary plat are material.
(c) If the City Planning Staff determines the changes are not material, the 60-working day review period resumes when the subdivision reviewer mails notice of the decision to the subdivider.
(d) If the City Planning Staff determines the changes are material, Staff shall either require the subdivider to schedule a new pre-application meeting and resubmit the application as a new subdivision application or obtain written permission from the subdivider for an additional 15-working day period to evaluate the sufficiency of the proposed changes.
(2) By making changes to a pending subdivision application or preliminary plat, the subdivider consents to suspension of the review period as provided in these regulations.
(3) The following changes, although not an exhaustive list, may be considered material:
(a) Configuration or number of lots;
(b) Road layout;
(c) Water and/or wastewater proposals;
(d) Configuration of park land or open spaces;
(e) Easement provisions;
(f) Proposed covenants; or
(g) Designated access.
(4) A subdivider whose subdivision application or preliminary plat has been deemed materially changed by City Planning Staff may appeal the Staff’s decision to the governing body by written notice within ten working days of the decision. The subdivider may request a hearing, and may submit additional evidence to demonstrate the changes to the preliminary plat are not material.
(a) The 60-working day review period is suspended until the City Council’s decision on the appeal is made.
(b) If the City Council concludes the evidence and information demonstrate the changes to the subdivision application or preliminary plat are material, the governing body shall determine whether the subdivision application should be resubmitted or scheduled for rehearing.
(c) If the City Council concludes the evidence and information demonstrate the changes to the subdivision application or preliminary plat are not material, the 60-working day review period resumes as of the date of the decision.
(d) By appealing the decision of the City Planning Staff, the subdivider agrees to suspension of the 60-working day review period.
(H) Major final plats. The final plat must be in compliance with, submitted and reviewed in accordance with § 9.6.30
.
(Res. 607, passed 7-1-2019)
DIVISIONS OF LAND EXEMPT FROM SUBDIVISION REVIEW
The MSPA provides that certain divisions of land, which would otherwise constitute subdivisions, are exempt from local subdivision review and approval, unless the use of the exemption is an attempt to evade the MSPA. The exemptions are found in M.C.A. Title 76, Chapter 3, Part 2. These regulations address the more commonly used exemptions. (Res. 607, passed 7-1-2019)
The City and its agents, when determining whether an exemption is claimed for the purpose of evading the MSPA, shall consider all of the surrounding circumstances. These circumstances include 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 which will result in the equivalent of a subdivision without local government review. (Res. 607, passed 7-1-2019)
The City will examine the divisions of land set forth in this section to determine whether or not the requirements of the MSPA and these regulations apply to the division. The fee for this examination is set forth in § 9.6.190. The requirements of these regulations and the MSPA do not apply unless the method of disposition is adopted for the purpose of evading these regulations or the MSPA, or as otherwise specifically provided, when:
(A) A division of land is created by order of any court of record in this state or by operation of law or, in the absence of agreement between the parties to the sale, could be created by an order of any court in the state pursuant to the law of eminent domain, M.C.A. Title 70, Chapter 30. Before a court of record orders a division of land, the court shall notify the governing body of the pending division and allow the governing body to present written comments on the subdivision;
(B) A division of land is created to provide security for mortgages, liens or trust indentures for the purpose of construction, improvements to the land being divided or refinancing purposes:
(1) Exemption application. This Exemption applies to any one or a combination of all three criteria listed below:
(a) To a division of land of any size;
(b) If the land divided is only conveyed to 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. 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 MSPA and these regulations; or
(c) To a lot created to provide security under this division (B)(1). The remainder of the tract of land, if applicable, is subject to the provisions of the MSPA and these regulations.
(2) Statement of intent. Under policies by many lending institutions and federal home loan guaranty programs, a landowner who is buying a tract with financing or through a contract for deed is required to hold title to the specific site on which the residence will be built. The intended purpose of this exemption is to allow a person who is buying a tract using financing or contract for deed to segregate a smaller lot from the tract for security for financing construction of a home on the property.
(3) Use of exemption. This exemption is not available to simply create a lot without review by claiming the lot will be used for security to finance construction of a home or other structure on the proposed lot. This exemption may not be properly invoked unless:
(a) The claimant is purchasing a larger tract through financing or a contract for deed (and thus does not hold title); and
(b) A lending institution requires the landowner to hold title to a small lot of the tract because the smaller tract is required as security for a building construction loan.
(4) Required materials. When this exemption is to be used, the landowner must submit to the subdivision reviewer:
(a) A statement of how many interests within the original tract will be created by use of the exemption;
(b) The deed, trust indenture or mortgage for the exempted interest (which states the interest is being created only to secure a construction mortgage, lien or trust indenture);
(c) A statement explaining who will have title to and possession of the balance of the original lot after title to the exempted interest is conveyed; and
(d) A signed statement from a lending institution stating the creation of the interest is necessary to secure a loan.
(5) Rebuttable presumptions. The use of this exemption is presumed to have been adopted for the purpose of evading the Act if:
(a) It will create more than one new building site;
(b) The financing is not for construction or improvements on the exempted lot, or for re-financing;
(c) The person named in the “statement explaining who would have possession of the remainder lot if title to the exempted lot is conveyed” is anyone other than the borrower of funds for construction;
(d) Title to the exempted interest will not be initially obtained by the lending institution if foreclosure occurs;
(e) There exists a prior agreement to default or a prior agreement to purchase only a portion of the original tract;
(f) It appears the principal reason the interest is being created is to create a building site and using the interest to secure a loan is a secondary purpose; or
(g) 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.
(C) A division of land creates an interest in oil, gas, minerals, or water which is severed from the surface ownership of real property;
(D) A division of land creates cemetery lots;
(E) A division of land is created by the reservation of a life estate;
(F) A division of land is created by lease or rental for farming and agricultural purposes;
(G) A division of land is in a location over which the state does not have jurisdiction; or
(H) A division of land is created for public rights-of-way or public utility sites. A subsequent change in the use of the land to a residential, commercial or industrial use is subject to the requirements of the MSPA and these regulations. (Res. 607, passed 7-1-2019)
Loading...