Montana Code 76-25-408. Local review procedure for divisions of land
76-25-408. Local review procedure for divisions of land. (1) An applicant may request a preapplication submittal and response from the planning administrator prior to submitting a subdivision application. The preapplication review must take place no more than 30 business days from the date that the planning administrator receives a written request for a preapplication review from the subdivider.
Terms Used In Montana Code 76-25-408
- Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Applicant: means a person who seeks a land use permit or other approval of a development proposal. See Montana Code 76-25-103
- Certificate of survey: means a drawing of a field survey prepared by a registered surveyor for the purpose of disclosing facts pertaining to boundary locations. See Montana Code 76-25-103
- Examining land surveyor: means a registered land surveyor appointed by the governing body to review surveys and plats submitted for filing. See Montana Code 76-25-103
- Final plat: means the final drawing of the subdivision and dedication required by this chapter to be prepared for filing for record with the county clerk and recorder and containing all elements and requirements set forth in this chapter and in regulations adopted pursuant to this chapter. See Montana Code 76-25-103
- governing body: means the elected body responsible for the administration of a local government. See Montana Code 76-25-103
- jurisdiction: means the area within the boundaries of the local government. See Montana Code 76-25-103
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Land use plan: means the land use plan and future land use map adopted in accordance with this chapter. See Montana Code 76-25-103
- Local government: means a county, consolidated city-county, or an incorporated municipality to which the provisions of this chapter apply as provided in 76-25-105. See Montana Code 76-25-103
- Planning administrator: means the person designated by the local governing body to review, analyze, provide recommendations, or make final decisions on any or all zoning, subdivision, and other development applications as required in this chapter. See Montana Code 76-25-103
- Plat: means a graphical representation of a subdivision showing the division of land into lots, parcels, blocks, streets, alleys, and other divisions and dedications. See Montana Code 76-25-103
- Preliminary plat: means a neat and scaled drawing of a proposed subdivision showing the layout of streets, alleys, lots, blocks, and other elements of a subdivision that furnish a basis for review by a governing body. See Montana Code 76-25-103
- Process: means a writ or summons issued in the course of judicial proceedings. See Montana Code 1-1-202
- Subdivider: means a person who causes land to be subdivided or who proposes a subdivision of land. See Montana Code 76-25-103
- Subdivision: means a division of land or land so divided that it creates one or more parcels containing less than 160 acres that cannot be described as a one-quarter aliquot part of a United States government section, exclusive of public roadways, in order that the title to the parcels may be sold or otherwise transferred and includes any resubdivision and a condominium. See Montana Code 76-25-103
(2)On receipt of an application for an exemption from subdivision review under 76-25-402 that contains all materials and information required by the governing body under subsection (5), the local government:
(a)shall approve or deny the application within 20 business days;
(b)may not impose conditions on the approval of an exemption from subdivision review except for conditions necessary to ensure compliance with the survey requirements of 76-25-412(1); and
(c)may require the certificate of survey to be reviewed for errors and omissions in calculation or drafting by an examining land surveyor before filing with the county clerk and recorder. The examining land surveyor shall certify compliance in a printed or stamped certificate signed by the surveyor on the certificate of survey. A professional land surveyor may not act as an examining land surveyor in regard to a certificate of survey in which the surveyor has a financial or personal interest.
(3)(a) When a proposed subdivision lies entirely within an incorporated city or is proposed for annexation into the city, the application and preliminary plat must be submitted to and approved by the city.
(b)Except as provided in subsection (3)(c), when a proposed subdivision lies entirely in an unincorporated area, the application and preliminary plat must be submitted to and approved by the county.
(c)If the proposed subdivision lies within an area subject to increased growth pressures, higher development densities, or other urban development influences identified by either jurisdiction in 76-25-213, the jurisdiction shall provide other impacted jurisdictions the opportunity to review and comment on the application.
(d)If the proposed subdivision lies partly within an incorporated city, the application and preliminary plat must be submitted to and approved by both the city and the county governing bodies.
(4)A subdivision application is considered received on the date the application is delivered to the reviewing agent or agency if accompanied by the review fee.
(5)(a) The planning administrator has 20 business days to determine whether the application contains all information and materials necessary to complete the review of the application as set forth in the local subdivision regulations.
(b)The planning administrator may review subsequent submissions of the application only for information found to be deficient during the original review of the application under subsection (5)(a).
(c)A determination that an application contains sufficient information for review as provided in subsection (5)(a) does not ensure approval or conditional approval of the proposed subdivision and does not limit the ability of the planning administrator to request additional information during the review process.
(6)A subdivider may propose a phasing plan for approval with a preliminary plat. The phasing plan must include a phasing plan and map that demonstrates what lots will be included with each phase, what public facilities will be completed with each phase, and the timeline for the proposed phases.
(7)(a) If an application proposes a subdivision of a site that, with or without variances or deviations from adopted standards, is in substantial compliance with the zoning and subdivision regulations and all impacts resulting from the development were previously analyzed and made available for public review and comment prior to the adoption of the land use plan, zoning regulations, and subdivision regulations, or any amendment thereto, the planning administrator shall issue a written decision to approve, approve with conditions, or deny the preliminary plat.
(b)The application is not subject to any further public review or comment, except as provided in 76-25-503.
(c)The decision by the planning administrator must be made no later than 15 business days from the date the application is considered complete.
(8)(a) If an application proposes subdivision of a site that, with or without variances or deviations from adopted standards, is in substantial compliance with the zoning and subdivision regulations but may result in new or significantly increased potential impacts that have not been previously identified and considered in the adoption of the land use plan, zoning regulations, or subdivision regulations, or any amendments thereto, the planning administrator shall proceed as follows:
(i)request the applicant to collect additional data and perform additional analysis necessary to provide the planning administrator and the public with the opportunity to comment on and consider the impacts identified in this subsection (8)(a);
(ii)collect additional data or perform additional analysis that the planning administrator determines is necessary to provide the local government and the public with the opportunity to comment on and consider the impacts identified in this subsection (8)(a); and
(iii)provide notice of a written comment period of 15 business days during which the public must have a reasonable opportunity to participate in the consideration of the impacts identified in this subsection (8)(a).
(b)Any additional analysis or public comment on the proposed development is limited to only new or significantly increased potential impacts resulting from the proposed development to the extent that the impact was not previously identified in the consideration and adoption of the land use plan, zoning regulations, subdivision regulations, or any amendments thereto.
(9)Within 30 business days of the end of the written comment period provided in subsection (8)(a)(iii), the planning administrator shall issue a written decision to approve, conditionally approve, or deny a proposed subdivision application.
(10)The basis of the decision to approve, conditionally approve, or deny a proposed preliminary plat is based on the administrative record as a whole and a finding that the proposed subdivision:
(a)meets the requirements and standards of this chapter;
(b)meets the survey requirements provided in 76-25-412(1);
(c)provides the necessary easements within and to the proposed subdivision for the location and installation of any planned utilities; and
(d)provides the necessary legal and physical access to each parcel within the proposed subdivision and the required notation of that access on the applicable plat and any instrument of transfer concerning the parcel.
(11)(a) The written decision must identify each finding required in subsection (10) that supports the decision to approve, conditionally approve, or deny a proposed preliminary plat, including any conditions placed on the approval that must be satisfied before a final plat may be approved.
(b)The written decision must identify all facts that support the basis for each finding and each condition and identify the regulations and statutes used in reaching each finding and each condition.
(c)When requiring mitigation as a condition of approval, a local government may not unreasonably restrict a landowner’s ability to develop land. However, in some instances, the local government may determine that the impacts of a proposed development are unmitigable and preclude approval of the subdivision.
(12)The written decision to approve, conditionally approve, or deny a proposed subdivision must:
(a)be provided to the applicant;
(b)be made available to the public;
(c)include information regarding the appeal process; and
(d)state the timeframe the approval is in effect.
(13)The planning administrator’s decision is final, and no further action may be taken except as provided in 76-25-503.
(14)Any changes to an approved preliminary plat that increases the number of lots or redesigns or rearranges six or more lots must undergo consideration and approval of an amended plat following the requirements of this section.