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MCA 76-3-207, Subdivisions Exempted from Reviewt 76-3-207. Subdivisions exempted from review but subject to survey requirements -- exceptions. (1) Except as provided in subsection (2), unless the method of disposition is adopted for the purpose of evading this chapter, the following divisions of land are not subdivisions under this chapter but are subject to the surveying requirements of 76-3-401 for divisions of land not amounting to subdivisions: (a) divisions made outside of platted subdivisions for the purpose of relocating common boundary lines between adjoining properties; (b) divisions made outside of platted subdivisions for the purpose of a single gift or sale in each county to each member of the landowners immediate family; (c) divisions made outside of platted subdivisions by gift, sale, or 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 governing body and the property owner that the divided land will be used exclusively for agricultural purposes; (d) for five or fewer lots within a platted subdivision, relocation of common boundaries and the aggregation of lots; 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. (2) Notwithstanding the provisions of subsection (1): (a) within a platted subdivision filed with the county clerk and recorder, a division of lots that results in an increase in the number of lots or which redesigns or rearranges six or more lots must be reviewed and approved by the governing body and an amended plat must be filed with the county clerk and recorder; (b) a change in use of the land exempted under subsection (1)(c) for anything other than agricultural purposes subjects the division to the provisions of this chapter. (3) A division of land may not be made under this section unless the county treasurer has certified that all real property taxes and special assessments assessed and levied on the land to be divided have been paid. History: En. Sec. 4, Ch. 500, L. 1973; amd. Sec. 2, Ch. 334, L. 1974; amd. Sec. 19, Ch. 213, L. 1975; amd. Sec. 2, Ch. 552, L. 1977; R.C.M. 1947, 11-3862(6); amd. Sec. 1, Ch. 379, L. 1985; amd. Sec. 1, Ch. 569, L. 1989; amd. Sec. 4, Ch. 272, L. 1993; amd. Sec. 3, Ch. 366, L. 1993; amd. Sec. 3, Ch. 468, L. 1995. Compiler's Comments: 1995 Amendment: Chapter 468 in (1)(c), near beginning, inserted "gift"; and made minor changes in style. 1995 Statement of Intent: The statement of intent attached to Ch. 468, L. 1995, provided: "It is the intent of the legislature that the department of commerce, local government assistance division, update its model subdivision rules to minimize the fiscal impacts to local governments in implementing this legislation." Applicability: Section 13, Ch. 468, L. 1995, provided: "Funds in a park fund that exceed $10,000 as of [the effective date of this act] [October 1, 19951 must be used for park land acquisition and initial development. Funds in a park fund up to $10,000 as of [the effective date of this act] [October 1, 19951 may be used for park maintenance in accordance with a formally adopted park plan." 1993 Amendments: Chapter 272 in (1)(b) substituted "a single gift or sale in each county to each member" for "a gift or sale to any member"; deleted former (1)(d) that read: "(d) a single division of a parcel outside of platted subdivisions when the transaction is an occasional sale"; and made minor changes in style. Amendment effective April 6, 1993. Chapter 366 in (3) substituted "certified that all real property taxes and special assessments assessed and levied on the land to be divided have been paid" for "certified that no real property taxes assessed and levied on the land to be divided are delinquent"; and made minor changes in style. Applicability: Section 7(1), Ch. 272, L. 1993, provided that this section applies "to all subdivision applications filed after passage and approval of [this act]". Approved April 6, 1993. 1989 Amendment: Inserted (1)(f) relating to relocation of common boundary between lot within platted subdivision and adjoining land outside the subdivision; and made minor change in phraseology. 1985 Amendment: Inserted (3) prohibiting division of land unless County Treasurer has certified that property taxes are not delinquent. Administrative Rules: ARM 16.16.105 Montana Subdivision and Platting Act exclusions subject to Department review. ARM 16.16.605 Exclusions. Case Notes: Clerk Under No Clear Duty to Record Deed -- Mandamus Erroneously Granted: Where the plaintiff attempted to record a deed to a 5-acre parcel of land without the removal or approval of sanitary restrictions by the county health department (which the court held was estopped from withholding its approval of a disposal permit) but was refused by the Clerk and Recorder, the District Court erred in granting a Writ of Mandamus ordering the Clerk to file a certificate of survey and record the warranty deed. The Clerk and Recorder was statutorily required to refuse to file the survey and record the deed and lacked any discretion to accept a survey absent compliance with the requirements of 76-4-122. Huttinga v. Pringle, 205 M 482, 668 P2d 1068, 40 St. Rep. 1444 (1983). State Agency Review Under Sanitation in Subdivision Law Not Applicable to Certificate of Survey: where after a series of real estate transactions, each denominated an "occasional sale" and evidenced by a certificate of survey, one 14-acre parcel of land became 13 separate and distinct parcels reconveyed to the original owner, the Department of Health and Environmental Sciences (now Department of Environmental Quality) had no authority under the sanitation in subdivisions law to review the certificates of survey. That act provides for Department review only of subdivision plats, and Department regulation which included certificate of survey within definition of plat was held void. (Case considered under pre-1977 law; see 1993 amendments.) State ex rel. Dept. of Health & Environmental Sciences v. Lasorte, 182 M 267, 596 P2d 477, 36 St. Rep. 1126 (1979). Administrative Regulation Proscribing Occasional Sale in Resubdivision Void: Administrative regulation under this section (prior to 1977 and 1993 amendments) requiring all resubdivisions or redesigns of previously filed subdivisions to be approved by local governing body and requiring approved amended plat to be filed was held void as proscribing the statutory exemption for occasional sales. State ex rel. Swart v. Casne, 172 M 302, 564 P2d 983 (1977), followed in State ex rel. Leach v. Visser, 234 M 438, 767 P2d 858, 45 St. Rep. 2035 (1988). Attorney General Opinions: Occasional Sale by Division Into Two Parcels -- Restriction on Sale of Second Parcel: If a parcel of land is divided into two parcels, each under 20 acres in size, and one of the parcels is sold as an occasional sale, the remaining parcel may not, in the absence of another legitimately claimed exemption, be sold without subdivision review within 12 months following the sale of the first parcel. (See 1993 amendments.) 41 A.G. Op. 40 (1986). Application of "Occasional Sale" Exception: When a 600-acre parcel of land was divided into parcels of 20 or more acres and sold to new owners who, on the same day, filed certificates of survey to divide their 20-acre parcels into two 10-acre parcels, the new owners were entitled to use the "occasional sale" exception in the Montana Subdivision and Platting Act because the initial division of the 600-acre parcel into 20-acre parcels was not a "subdivision". (See 1993 amendments.) 41 A.G. Op. 21 (1985). Duplex, Office Building, Second Dwelling for Family Member, and Motel Room as Subdivisions: Construction of a duplex for rental or sale purposes nominally falls within the scope of a subdivision because a legally enforceable possessory interest in a portion of a formerly integrated parcel of land will be conveyed. However, the duplex project may, under certain circumstances, be excepted from subdivision status or subjected to less stringent surveying and filing requirements under 76-3-207 and 76-3-208. The availability of exception from some or all of this chapter's requirements must be determined by a careful analysis of the particular facts. The construction of an office building for rental purposes will, for similar reasons, constitute a subdivision. An exemption from full compliance with the Montana Subdivision and Platting Act may nonetheless exist under 76-3-207 and 76-3-208. The existence of a legally enforceable possessory interest determines if the construction of a second dwelling for a family member constitutes a division of land. whether such a possessory interest exists must be resolved with reference to the involved facts. Again, an exception to subdivision status and to full compliance with the Subdivision and Platting Act may arise under 76-3-207 and 76-3-208 even if a division of land has occurred. Summary review procedures under 76-3-505 applicable to minor subdivisions may be available as to each of these projects. Rental of hotel rooms will not, however, constitute a subdivision. Although a hotel or motel guest has a form of possessory right in his room, the involved transaction is actually the sale of a product or service which is temporary lodging. The guest is a licensee. 41 A.G. Op. 3 (1985). (Opinion rendered prior to 1985 amendment of 76-3-204.) Exemption Requests -- Hearing and Decision: whether a particular exemption granted by this section is claimed "for the purpose of evading this chapter" is manifestly a question of fact and directed to the discretion of the local government. The Attorney General will not answer the question. However, to assist local government in analyzing the issue, the following observations are made: (1) since it promotes the public health and welfare, the chapter must be liberally construed to effectuate its objects and its exemptions must be narrowly applied; (2) local government may properly require one claiming an exemption to make an evidentiary showing that the exemption is justified and may establish by rule a procedure for a hearing and decision; (3) the local government should evaluate all relevant circumstances in assessing claimant's intent, including the nature of claimant's business, the prior history of the land in question and whether claimant has engaged in prior exempt transactions involving the land, and the proposed configuration of the land after the allegedly exempt transactions would be completed; and (4) a claimant who attempts to use a pattern of exempt transactions that will result in a subdivision which is not reviewed should be denied exemption. 40 A.G. Op. 16 (1983). Occasional Sale Exemption -- Number of Lots Certificate of Survey May Include: A single certificate of survey may not reflect the creation of more than one lot to be conveyed under this section's provision that a single division of a parcel outside of platted subdivisions is not a subdivision under this chapter if the transaction is an occasional sale. (See 1993 amendments.) 40 A.G. Op. 16 (1983). Commencement of Time Limitation for Occasional Sale: The filing of a certificate of survey merely creates a parcel for purposes of the Montana Subdivision and Platting Act. The filing of the certificate is not subject to time restrictions. It is the actual sale that is restricted by subsection (1)(d) of this section. The 12-month limitation period on occasional sales of land commences with the actual transfer of interest in the parcel of land from the grantor to the grantee. (See 1993 amendments.) 38 A.G. Op. 117 (1980). Platted City Not a Platted Subdivision: A platted city does not constitute a platted subdivision for purposes of applying this section. Therefore, dividing a city lot into two parcels does not need to be reviewed as a subdivision. 38 A.G. Op. 108 (1980). Review of Certificate of Survey: The Department of Health and Environmental Sciences (now Department of Environmental Quality) has authority under Title 76, ch. 4, part 1, to review certificates of survey. 38 A.G. Op. 81 (1980). "Immediate Family" Defined: The term "immediate family", as used in this section, means the spouse of the grantor and children of the grantor by blood or adoption. 35 A.G. Op. 70 (1974). E 76-3-201. Exemption for certain divisions of land. (1) Unless the method of disposition is adopted for the purpose of evading this chapter, the requirements of this chapter may not apply to any division of land that: (a) 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 this state pursuant to the law of eminent domain, Title 70, chapter 30; (b) is created to provide security for construction mortgages, liens, or trust indentures; (c) creates an interest in oil, gas, minerals, or water that is severed from the surface ownership of real property; (d) creates cemetery lots; (e) is created by the reservation of a life estate; (f) is created by lease or rental for farming and agricultural purposes. (2) Before a court of record orders a division of land under subsection (1)(a), the court shall notify the governing body of the pending division and allow the governing body to present written comment on the division. History: En. Sec. 4, Ch. 500, L. 1973; amd. Sec. 2, Ch. 334, L. 1974; amd. Sec. 19, Ch. 213, L. 1975; amd. Sec. 2, Ch. 552, L. 1977; R.C.M. 1947, 11-3862(9); amd. Sec. 2, Ch. 503, L. 1997. Compilers Comments: 1997 Amendment: Chapter 503 inserted (2) concerning notice to governing body in case of division of land under subsection (1)(a); and made minor changes in style. Amendment effective May 1, 1997. Administrative Rules: ARM 16.16.605 Exclusions. Attorney General Opinions: Survey Requirements for Remainder Created when Highway Right -of -Way Obtained by State: A County Clerk and Recorder may not require a survey or plat for the recordation of an instrument transferring title to a remainder that was created when the state obtained property for a highway right-of-way. 44 A.G. Op. 25 (1992). Subsequent Sale of Parcel Originally Used as Lien Security -- State and Local Regulation Inapplicable: The provisions of Title 76 relating to local and state regulation of subdivisions do not apply to the subsequent sale of an undivided parcel that was originally used as security for a construction lien pursuant to this section, and nothing in the Montana Subdivision and Platting Act requires that the parcel be reviewed or surveyed upon subsequent sale. 42 A.G. Op. 101 (1988). Conveyance of Land From Private Owner to U.S.D.A. -- Transaction Exempt From Regulation: In the case of land conveyed from a private owner to the U.S. Department of Agriculture pursuant to 16 U.S.C. sec 485, since the land was subject to condemnation by the U.S. in the absence of agreement and because the term "law of eminent domain", as defined in 76-3-201, includes federal condemnation proceedings, the transaction was exempted from regulation under the Montana Subdivision and Platting Act. Further, the Department is immune from direct enforcement of the Act because of general sovereignty principles. 42 A.G. Op. 36 (1987). Exemption of U.S. From Filing and Enforcement Provisions: The filing and enforcement provisions of the Montana Subdivision and Platting Act are inapplicable to a conveyance by the federal government pursuant to 43 U.S.C. sec 1716 and in which transaction the United States is the subdivider. 42 A.G. Op. 36 (1987). Reference Intended Only to Designate Law Governing State Condemnation: The parenthetical reference to Title 70, chapter 30, in 76-3-201 does not limit the term "law of eminent domain" to proceedings under the state statute. The reference was intended only to designate that provision of Montana law which largely governs condemnation matters and was not designed to foreclose applicability of the exemption to agreements providing for divisions of land which could have been effected through federal condemnation proceedings. 42 A.G. Op. 36 (1987). f Portion of Lot Sold to Satisfy Delinquent Assessment: Where only a portion of a lot is included in a rural special improvement district and a sale of that portion is made to satisfy a delinquent assessment, a division of property "by operation of law" has occurred, thereby exempting the sale from the operation of this chapter. 39 A.G. Op. 48 (1982). Review of Certificate of Survey: The Department of Health and Environmental Sciences (now Department of Environmental Quality) has authority under Title 76, ch. 4, part 1, to review certificates of survey. 38 A.G. Op. 81 (1980). Affidavit of Good Faith Not to Circumvent Act -- When Required: A transaction involving a contract for deed which allows the purchaser to acquire title to a portion of the land is subject to 76-3-101, et seq., if the transaction is undertaken for the purpose of evading the act, and a local governing body may require a person claiming the 76-3-201 exemption to file an affidavit of good faith without intent to circumvent. 37 A.G. Op. 41 (1977).