HomeMy WebLinkAboutChapter_10 Subdivision Exemptions
Title 18
Chapter 10
SUBDIVISION EXEMPTIONS
Sections:
18.10.010 Divisions of Land Entirely Exempt from the Requirements of this Title and
the Montana Subdivision and Platting Act
18.10.020 Specific Divisions of Land Exempt from Review but Subject to Survey
Requirements and Zoning Regulations for Divisions of Land Not
Amounting to Subdivisions
18.10.030 Exemptions from Surveying and Filing Requirements but Subject to Review
18.10.040 Condominiums
18.10.050 Exemption from Surveying and Platting Requirements for Lands Acquired
for State Highways
18.10.060 Procedures and General Requirements
18.10.070 Exemption Review Criteria
18.10.080 Procedures for Filing Certificates of Survey of Divisions of Land Entirely
Exempted from the Requirements of the Act
18.10.090 Correction of Errors
18.10.010 Divisions of Land Entirely Exempt from the Requirements of this Title and the
Montana Subdivision and Platting Act
Unless the method of disposition is adopted for the purpose of evading this title or the
Montana Subdivision and Platting Act (the "act"), the requirements of this title pertaining to
subdivisions and the act may not apply when:
A. A division of land is created by order of any court of record in this state or by
operation of law or that, 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 (~ 76-3-201 (1 )(a), MeA);
1. 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 comment on the division.
S. 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 (~ 76-3-201 (1 )(b), MCA). This exemption applies:
1. To a division of land of any size;
2. If the land that is divided is not conveyed 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. Transfer of the divided land, by the owner of the property at the
time that the land was divided, to any party other than those identified in
this subsection subjects the division of land to the requirements of the
Montana Subdivision and Platting Act and Chapter 18.06.
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3. To a parcel that is created to provide security, however the remainder of
the tract of land is subject to the provisions of the Montana Subdivision and
Platting Act and Chapter 18.06 if applicable.
C. A division of land creates an interest in oil, gas, minerals, or water that is severed
from the surface ownership of real property (~ 76-3-201 (1 )(c), MeA);
D. A division of land creates cemetery lots (~ 76~3~201 (1 )(d), MCA);
E. A division of land is created by the reservation of a life estate (~ 76-3-201 (1 )(e),
MCA);
F. A division of land is created by lease or rental for farming and agricultural purposes
(~ 76~3~201 (1 )(f), MCA);
G. A division of land is created for rights-of-way or 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 Montana Subdivision and Platting Act and Chapter 18.06 (~
76-3-201 (1 )(h), MCA);
H. The land upon which an improvement is situated has been subdivided in
compliance with this title and the act, the sale, rent, lease, or other conveyance of
one or more parts of a building, structure, or other improvement situated on one or
more parcels of land is not a division of land (~ 76-3~202, MCA);
I. The sale, rent, lease, or other conveyance of one or more parts of a building,
structure, or other improvement, whether existing or proposed, is not a division of
land (S 76-3-204, MCA);
J. A division of land created by lease or rental of contiguous airport-related land owned
by a city, county, the state, or a municipal or regional airport authority provided that
the lease or rental is for onsite weather or air navigation facilities, the manufacture,
maintenance, and storage of aircraft or air carrier-related activities (~ 76-3-205(1),
MCA);
K. A division of state-owned land unless the division creates a second or subsequent
parcel from a single tract for sale, rent, or lease for residential purposes after July
1, 197 4 (~ 76-3-205(2), MCA); and
L. Deeds, contracts, leases, or other conveyances that were executed prior to July 1,
1974 (~76-3-206, MeA). (Ord. 1645 ~ 1, 2005)
18.10.020 Specific Divisions of Land Exempt from Review but Subject to Survey
Requirements and Zoning Regulations for Divisions of Land Not Amounting
to Subdivisions
Unless the method of disposition is adopted for the purpose of evading this title or the act,
the following divisions of land are not subdivisions under this title and the act, but are subject to
the surveying requirements of ~ 76-3-401, MCA, for lands not amounting to subdivisions and are
subject to applicable zoning regulations adopted unter Title 76, Chapter 2, MCA. A division of
land may not be made under this section unless the County Treasurer has certified that no real
property taxes and special assessments assessed and levied on the land to be divided are
delinquent. The County Clerk and Recorder shall notify the Planning Department of any land
division described in this section or ~ 76-3-207 (1), MCA.
A. Divisions made outside of platted subdivisions for the purpose of relocating
common boundary lines between adjoining properties (~ 76-3-207(a), MCA);
S. Divisions 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 (~ 76-3-207(b),
MeA);
C. Divisions made outside of platted subdivisions by gift, sale, or a agreement to buy
and sell in which the parties to the transaction enter a covenant running with the
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land and revocable only by mutual consent of the City of Bozeman and the property
owner that the divided land will be used exclusively for agricultural purposes (~
76-3w207(c), MCA);
D. For five or fewer lots within a platted subdivision, relocation of common boundaries
and the aggregation of lots (~ 76 -3-207(d), MCA); and
E. 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. A restriction or requirement on the original platted lot or original
unplatted parcel continues to apply to those areas (~76-3-207(e), MeA). (Ord. 1645
~ 1, 2005)
18.10.030 Exemptions from Surveying and Filing Requirements but Subject to Review
Subdivisions created by rent or lease are exempt from the surveying and filing requirements
of Chapter 18.06 and the Montana Subdivision and Platting Act, but must be submitted for review
and approved by the City Commission before portions thereof may be rented or leased. (Ord.
1645 ~ 1, 2005)
18.10.040 Condominiums
A. Condominium developments are exempt from the surveying and filing requirements
of Chapter 18.06 and the Montana Subdivision and Platting Act.
S. Condominiums, constructed on land divided in compliance with the Montana
Subdivision and Platting Act, are exempt from the provisions of Chapter 18.06 and
the Montana Subdivision and Platting Act if either:
1. The approval of the original division of land expressly contemplated the
construction of the condominiums and any applicable park dedication
requirements of ~ 76-3-621, MCA, are complied with; or
2. The condominium proposal is in conformance with applicable local zoning
regulations where local zoning regulations are in effect. (Ord. 1645 ~ 1,
2005)
18.10.050 Exemption from Surveying and Platting Requirements for Lands Acquired for
State Highways
Instruments of transfer for land which is acquired for state highways may refer by parcel and
project number to state highway plans which have been recorded in compliance with ~ 60-2-209,
MCA, and are exempted from the surveying and platting requirements of this title and the act (~
76-3-209, MCA). If such parcels are not shown on highway plans of record, instruments of
transfer of such parcels shall be accompanied by and refer to appropriate certificates of survey
and plats when presented for recording. (Ord. 1645 ~ 1, 2005)
18.10.060 Procedures and General Requirements
All certificates of surveyor amended subdivision plats claiming an exemption inside city limits
and subject to survey requirements shall be submitted to the Planning Department. The
procedures and requirements of this title are limited to the exemptions discussed in ~ 18.10.070.
A. Submittal. A claimant seeking an exemption under the act and this title shall submit
to the Planning Department a claim on the appropriate application form, including
a signed certificate of exemption, together with evidence to support the claim and
any other information required by this title.
S. Review. The Planning Department will review the claimed exemption to verify that
it is the proper use of the claimed exemption.
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1. During this review, Planning Department staff will visit the proposed site,
understand thoroughly the nature of all activity occurring on the site, and
shall identify any existing or potential zoning conflicts. The Planning
Department shall prepare a memo evaluating the claimed exemption
against applicable review criteria, which shall also be made available to the
claimant or the claimant's representative.
2. In assessing the claimant's purpose for the exemption, the Planning
Department will evaluate all relevant circumstances including the nature of
the claimant's business, the prior history of the particular tract in question,
and the proposed configuration of the tract, if the proposed exemption
transactions are completed.
3. Where a rebuttable presumption is declared in this title, the presumption
may be overcome by the claimant with evidence contrary to the
presumption. If the Planning Department concludes that the evidence
overcomes the presumption and that from all the circumstances the
exemption is justified, the exemption will be allowed. On the other hand,
if the Planning Department concludes that the presumption is not
overcome and that from all the circumstances the exemption is not
justified, the exemption will be disallowed.
4. If the exemption is allowed, the Planning Director shall so certify in a
printed certificate on the certificate of surveyor amended plat within thirty
days of submission of a complete application.
5. If the exemption is disallowed, the Planning Department shall provide
written notification, within thirty days of submission of a complete
application, of its decision to the person claiming the exemption and to the
County Clerk and Recorder.
C. Filing Requirements. An amended plat or a certificate of survey of a division of land
which is exempt from review must be filed within 180 days of the completion of the
survey.
1. Certificates of Survey. A certificate of survey may not be filed by the
County Clerk and Recorder unless it complies with the following
procedures for divisions of land exempted from public review as
subdivisions. Certificates of survey for divisions of land meeting the criteria
set out in ~ 76-3-207, MCA, must meet the following requirements:
a. A certificate of survey of a division of land that would otherwise be
a subdivision, but that is exempted from subdivision review under
~ 76~3-207, MCA, may not be filed by the County Clerk and
Recorder unless it bears the acknowledged certificate of the
property owner stating that the division of land is exempt from
review as a subdivision and citing the applicable exemption.
b. If the exemption relied upon requires that the property owner
enter into a covenant running with the land, the certificate of
survey may not be filed unless it bears a signed and
acknowledged recitation of the covenant.
c. If a certificate of survey invokes the exemption for gifts and sales
to members of the landowner's immediate family, the certificate
must indicate the name of the proposed grantee, the relationship
of the grantee to the landowner and the parcel to be conveyed to
the grantee.
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d. If a certificate of survey invokes the exemption for the relocation
of common boundary lines:
(1) The certificate of survey must bear the signatures of all
landowners whose parcels will be altered by the
proposed relocation. The certificate of survey must show
that the exemption was used only to change the location
of or eliminate a boundary line dividing two or more
parcels and must clearly distinguish the prior boundary
location (shown, for example, by a dashed or broken line
or a notation) from the new boundary (shown, for
example, by a solid line or notation);
(2) The certificate of survey must show the boundaries of
the area that is being removed from one parcel and
joined with another parcel. The certificate of survey may,
but is not required to, establish the exterior boundaries
of the resulting parcels. However, the certificate of
survey must show portions of the existing unchanged
boundaries sufficient to clearly identify both the location
and the extent of the boundary relocation; and
(3) If a boundary line will be completely eliminated, the
certificate must establish the boundary of the resulting
parcel.
e. If the certificate of survey invokes an exemption from subdivision
review under ~ 76~3~207, MCA, the certificate of survey must
bear, or be accompanied by, a certification by the County
Treasurer that all taxes and special assessments assessed and
levied on the surveyed land have been paid.
f. For purposes of ~ 18.1 0.060.C.1, when the parcel of land for
which an exemption from subdivision review is claimed is being
conveyed under a contract-for-deed, the terms "property owner",
"landowner," and "owner" mean the seller of the parcel under the
contract-for-deed.
g. Procedures for Filing Certificates of Survey of Divisions of Land
Entirely Exempted from the Requirements of the act. The
divisions of land described in ~~ 76~3-201, 76-3-205, and
76-3-209, MCA, and divisions of federally owned land made by a
United States government agency are not required to be
surveyed, nor must a certificate of surveyor subdivision plat
showing these divisions be filed with the County Clerk and
Recorder. A certificate of survey of one of these divisions may,
however, be filed with the County Clerk and Recorder if the
certificate of survey meets the requirements for form and content
for certificates of survey contained in this section and bears a
certificate of the surveyor performing the survey citing the
applicable exemption from the act or, when applicable, that the
land surveyed is owned by the federal government.
2. Amended Plats. Unless a division of land is exempt from subdivision
review by ~~ 76-3-201 or 76-3-207(1)(d) or (e), MCA, an amended plat
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shall not be filed by the County Clerk and Recorder unless it complies with
the uniform standards for final subdivision plats specified in ~ 8.94.3003,
ARM. A survey document that modifies lots in a platted and filed
subdivision and invokes an exemption from subdivision review under ~~
76~3-201 or 76-3-207(1 )(d) or (e), MCA, must be entitled "amended plat of
the (name of subdivision)," but for all other purposes is to be regarded as
a certificate of survey and subject to the requirements of ~ 18.1 0.060.C.1.
(Ord. 1645 ~ 1, 2005)
18.10.070 Exemption Review Criteria
The following criteria shall be used to ensure that exemptions are not claimed for the
purposes of evading this title or the act. Appeals regarding a decision by the Planning
Department that an exemption is an evasion of the Subdivision and Platting Act may be taken to
the eity Commission in the manner established for administrative project decision appeals as set
forth in ~ 18.66.030.
A. 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 (~ 76-3-201 (1 )(b), MCA).
1. The proper use of the exemption is to provide security for construction
mortgages, liens, or trust indentures, when a survey of the parcel has been
required.
2. The City makes a rebuttable presumption that a division of land that is
created to provide security is adopted for the purpose of evading the act
under the following conditions:
a. If 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
b. The security is provided for construction or improvements on, or
refinancing for, land other than on the exempted parcel.
3. When the security for construction financing exemption is to be used, the
landowner shall submit, in addition to such other documents as may be
required, a written statement explaining:
a. How many parcels within the original tract will be created by use
of the exemption;
b. Who will have title to and possession of the remainder of the
original parcel; and
c. 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.
4. The written statement and the instruments creating the security shall be
filed at the same time as the survey with the Clerk and Recorder.
S. Divisions made outside of platted subdivisions for the purpose of relocating
common boundary lines between adjoining properties (~ 76-3-207(a), MCA).
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1. The proper use of the exemption for relocating common boundary lines is
to establish a new boundary between adjoining parcels of land outside of
a platted subdivision, without creating an additional parcel.
2. A certificate of survey for the relocation of common boundary lines may
include five or fewer parcels and/or lots.
3. Certificates of survey showing the relocation of common boundary lines
must be accompanied by:
a. An original deed exchanging recorded interest from every person
having a recorded interest in adjoining properties for the entire
newly-described parcel(s) that is acquiring additional land;
b. Documentation showing the need or reason for the relocation (for
example: structure encroachment, surveyor error, or
enhancement of the configuration of the property); and
c. The certificate of survey must bear the signatures of all
landowners whose parcels are changed by the relocation, and
show that the exemption was used only to change the location of
a boundary line dividing two parcels, and must clearly distinguish
the prior boundary location (shown, for example, by a dashed or
broken line or a notation) from the new boundary (shown, for
example, by a solid line or notation).
4. The eity makes a rebuttable presumption that a proposed relocation of
common boundary lines is adopted for the purpose of evading the act, if:
a. The Planning Department determines that the documentation
submitted according to this section does not support the stated
reason for relocation, or an additional parcel is created.
C. Divisions 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 (~ 76-3-207(b),
MCA).
1. 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.
2. 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 of 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 160 acres in size. Each exemption under this
section will be reviewed by the Planning Department under this title.
3. A certificate of survey for a family transfer may include more than one
exempt parcel providing all parcels meet the criteria of this section.
4. 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.
5. 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.
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6. The City makes a rebuttable presumption that a family transfer is adopted
for the purpose of evading this title and the act if it is determined that one
or more of the following conditions exist:
a. The exemption would create more than one additional parcel of
less than 160 acres.
b. The member of the landowner's immediate family would have
received more than one exempted parcel in the county.
D. Divisions 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 of Bozeman and the property
owner that the divided land will be used exclusively for agricultural purposes (~
76-3-207(c), MCA).
1. An agricultural exemption is a division of land made outside of a platted
subdivision by gift, sale, or agreement to buy and sell in which the parties
to the transaction enter a covenant running with the land, revocable only
by mutual consent of the City of Bozeman and the transferee/property
owner, that the divided land will be used exclusively for agricultural
purposes. No building or structure requiring water or sewer facilities shall
be utilized on such a parcel.
a. A change in use of the land for anything other than agricultural
purposes subjects the division to this title and the act.
E. For five or fewer lots within a platted subdivision, relocation of common boundaries,
and the aggregation of lots (~ 76-3-207(d), MCA).
1. The proper use of the exemption for aggregation of lots and/or relocation
of common boundaries is the rearrangement and/or aggregation of five or
fewer lots within a platted subdivision which does not increase the total
number of lots within the subdivision. The plat shall contain the title
"amended plat" and must be filed with the eounty Clerk and Recorder.
2. The amended plat showing the aggregation of lots and/or relocation of common
boundary within a platted subdivision must be accompanied by:
a. An original deed exchanging recorded interest from every person
having a recorded interest in adjoining properties for the entire
newly-described parcel(s) that is acquiring additional land;
b. Documentation showing the need or reason for the relocation (for
example: structure encroachment, surveyor error, or
enhancement of the configuration of the property); and
c. The amended plat must bear the signatures of all landowners
whose parcels are changed by the relocation or aggregation. The
amended plat must show that the exemption was used only to
change the location of boundary lines or aggregate lots, and must
clearly distinguish the prior boundary location (shown, for
example, by a dashed or broken line or a notation) from the new
boundary (shown, for example, by a solid line or notation).
3. The City makes a rebuttable presumption that a proposed aggregation of
lots and/or relocation of common boundaries within a platted subdivision
is adopted for the purpose of evading the act if it determines that six or
more lots are affected by the proposal.
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4. Any division of lots which results in an increase in the number of lots or
which redesigns or rearranges six or more lots must be reviewed as a
subdivision and approved by the eity of Bozeman prior to the filing of the
final plat.
F. 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 (~ 76-3-207(d), MCA).
1. The proper use of the exemption for relocating common boundary lines is
to establish a new common boundary line between a single lot within a
platted subdivision and adjoining land outside a platted subdivision. A
restriction or requirement on the original platted lot or original unplatted
parcel continues to apply to those areas.
2. A certificate of survey for the relocation of common boundary lines may
include five or fewer parcels and/or lots.
3. Certificates of survey showing the relocation of common boundary lines
must be accompanied by:
a. A original deed exchanging recorded interest from every person
having a recorded interest in adjoining properties for the entire
newly-described parcel(s) that is acquiring additional land;
b. Documentation showing the need or reason for the relocation (for
example: structure encroachment, surveyor error, or
enhancement of the configuration of the property); and
c. The certificate of survey must bear the signatures of all
landowners whose parcels are changed by the relocation, and
show that the exemption was used only to change the location of
a boundary line dividing two parcels, and must clearly distinguish
the prior boundary location (shown, for example, by a dashed or
broken line or a notation) from the new boundary (shown, for
example, by a solid line or notation).
4. The City makes a rebuttable presumption that a proposed relocation of
common boundary lines is adopted for the purpose of evading the act, if:
a. The Planning Department determines that the documentation
submitted according to this section does not support the stated
reason for relocation, or an additional parcel is created. (Ord.
1645 ~ 1, 2005)
18.10.080 Procedures for Filing Certificates of Survey of Divisions of Land Entirely
Exempted from the Requirements of the Act
A certificate of survey of a division of land entirely exempted from the requirements of this
title and the act may be filed with the County Clerk and Recorder if it meets the requirements for
form and content for certificates of survey contained in this section and bears a certificate of the
surveyor performing the survey stating the applicable exemption from the act. (Ord. 1645 ~ 1,
2005)
18.10.090 Correction of Errors
Correction of errors may be made by the submission of a corrected certificate of survey for
the Planning Director's approval. (Ord. 1645 ~ 1, 2005)
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