Unless the method of disposition is adopted for the purpose of evading these regulations or the MSPA, the following divisions of land are not subdivisions under these regulations and the MSPA, but are subject to the surveying requirements of M.C.A. § 76-3-401 and zoning regulations adopted under M.C.A. Title 76, Chapters 2 or 3. A division of land may not be made under this section unless the County Treasurer has certified all real property taxes and special assessments assessed and levied on the land to be divided have been paid. The Clerk and Recorder shall notify the subdivision reviewer if a land division described in this section or M.C.A. § 76-3-207(1) is submitted to the Clerk and Recorder prior to the survey being submitted to the City Planning Staff for evasion review.
(A) Relocation of a common boundary M.C.A. § 76-3-207(1)(a).
(1) Statement of intent. The intended purpose of this exemption is to allow a change in the location or the elimination of a boundary line between adjoining properties outside of a platted subdivision and to allow a one-time transfer of a tract to effect that relocation or elimination without subdivision review.
(2) Required information. Certificates of survey claiming this exemption must clearly distinguish between the existing boundary location and, in case of a relocation, the new boundary. This must be accomplished by representing the existing boundary with a dashed line and the new boundary, if applicable, with a solid line. The appropriate certification set forth in ARM 24.183.1104 (1)(f) must be included on the certificate of survey. Certificates of survey showing the relocation of common boundary lines must be accompanied by a quit claim or warranty deed or recordable agreement from adjoining property owners for the entire newly described lot(s) or that portion of the tract(s) that is being affected.
(3) Use of exemption. The proper use of the exemption for relocating common boundary lines is to establish a new boundary between adjoining lots of land outside of a platted subdivision, without creating an additional lot. The exemption may not be used if the division of land would result in the permanent creation of one or more additional lots of land.
(4) Rebuttable presumptions. The use of this exemption is presumed to have been adopted for the purpose of evading the MSPA if:
(a) The City Planning Staff determines that the documentation submitted according to this section does not support the stated reason for relocation; or
(b) The proposed relocation creates a lot of less than 160 acres which, prior to the relocation included more than 160 acres.
(B) Family transfer – a gift or sale to a member of the immediate family M.C.A. § 76-3-207(1)(b).
(1) Statement of intent. The intent of this exemption is to allow a landowner to convey one lot outside of a platted subdivision to each member of his or her immediate family, without local subdivision review. A single lot may be conveyed to each member of the immediate family under this exemption in each county where the landowner owns property. The term “immediate family” means the spouse, children (by blood or adoption), or parents of the grantor (M.C.A. § 76-3-103(8)). This exemption may be used only by grantors who are natural persons and not by non-corporal legal entities such as corporations, partnerships and trusts.
(2) Required information. A certificate of survey (or recording of an instrument of conveyance) which uses this exemption to create a lot for conveyance to a family member must show the name of the grantee, relationship to the landowner, and the lot to be conveyed under this exemption, and the landowner’s certification of compliance (ARM 24.183.1104(1)(f)). Also, the certificate of survey or instrument of conveyance must be accompanied by a deed or other conveying document.
(3) Use of exemption. One conveyance of a lot to each member of the landowner’s immediate family is eligible for exemption from subdivision review under the MSPA and these regulations. However, the use of the exemption may not create more than one new lot per eligible family member.
(4) Rebuttable presumptions.
(a) Any proposed use of the family gift or sale exemption to divide a tract which was previously created through the use of an exemption will be presumed to be adopted for purposes of evading the MSPA.
(b) The use of the family gift or sale exemption to divide tracts which were created as part of an overall development plan with such characteristics as common roads, utility easements, restrictive covenants, open space or common marketing or promotional plan raises a rebuttable presumption that the use of the exemption is adopted for purposes of evading the MSPA.
(c) A transfer of a lot of land by one family member to another, by quitclaim deed, followed by an attempted use of this exemption will result in the presumption the method of disposition is adopted for the purpose of evading the MSPA and these regulations.
(d) The use of the exemption to create more than one additional or remaining lot of less than 160 acres in size is presumed to be adopted for the purpose of evading the MSPA and these regulations.
(C) Divisions of land proposed for agricultural use only M.C.A. § 76-3-207(1)(c).
(1) Statement of intent. This exemption is intended to allow a landowner to create a lot for gift, sale or agreement to buy and sell, outside a platted subdivision, without local review if the lot will be used only for the production of livestock or agricultural crops and no residential, commercial or industrial buildings, which require water or sewer, will be built on it.
(2) Required information. A certificate of survey which uses this exemption to create a lot for agricultural use only requires a covenant running with the land in accordance with M.C.A. § 76-3-207(1)(c), and a signed and acknowledged recitation of the covenant on the face of the survey. The certificate of survey must be accompanied by a separate, recordable, document reciting the covenant.
(3) Use of exemption.
(a) AGRICULTURAL PURPOSE, for purposes of these evasion criteria, means the use of land for raising crops, livestock or timber, and specifically excludes residential structures and facilities for commercially processing agricultural products. Agricultural lands are exempt from review by the DEQ, provided the applicable exemption under the Sanitation in Subdivisions Act is properly invoked by the property owner.
(b) Any change in use of the land for anything other than agricultural purposes subjects the lot to review as a minor subdivision.
(c) Residential, commercial or industrial structures, including facilities for commercial processing of agricultural products, may not be utilized, constructed or erected on lots created under this exemption unless the covenant is revoked.
(4) Rebuttable presumptions. The following conditions must be met or the use of the exemption will be presumed to have been adopted for the purpose of evading the MSPA.
(a) The parties to the transaction must enter into a covenant running with the land and revocable only by mutual consent of the governing body and the property owner stating the divided land will be used exclusively for agricultural purposes. The covenant must be signed by the property owner, the buyer and the members of the governing body.
(b) The landowner must demonstrate the planned use of the exempted lot is for agricultural purposes and no residential, commercial or industrial buildings have been or will be built on it.
(c) The lot must meet the criteria for an agricultural designation under M.C.A. § 15-7-202.
(D) Relocation of common boundaries within a platted subdivision M.C.A. §§ 76-3-207(1)(d), (e) and 2(a).
(1) Statement of intent.
(a) The MSPA allows certain revisions to subdivisions platted since July 1, 1973, which include relocation of common boundaries and the aggregation of lots for five or fewer lots within a platted subdivision or the relocation of a common boundary between a single lot in a platted subdivision and adjoining land outside a platted subdivision (but a restriction or requirement on either continues to apply), without review.
(b) If a change is made to a platted subdivision which results in an increase in the number of lots or redesigns or rearranges six or more lots, the governing body must review and approve the amended plat and an amended plat must be filed with the Clerk and Recorder.
(2) Use of exemption. Relocation of a common boundary between a single lot in a platted subdivision and adjoining land outside a platted subdivision (M.C.A. § 76-3-207(1)(e)) is allowed, because no additional lots are created. Subdivision review is not necessary because the relocation does not create any additional division of land.
(3) Rebuttable presumption.
(a) If the resulting lots are inconsistent with the approved subdivision and the uses in it, the use of the exemption will be presumed to have been adopted for the purpose of evading the MSPA.
(b) If the resulting lots do not comply with existing zoning, covenants and/or deed restrictions, the use of the exemption will be presumed to have been adopted for the purpose of evading the MSPA. (Res. 607, passed 7-1-2019)