Senate Bill No. 339
Introduced By grosfield
A Bill for an Act entitled: "An Act clarifying the review of certain parcel divisions;
and amending sections 76-3-103 ,
76-3-201, 76-3-207,, 76-3-201, and 76-3-507, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND A
RETROACTIVE APPLICABILITY DATE ."
Be it enacted by the Legislature of the State of Montana:
Section 1. Section 76-3-103, MCA, is amended to read:
"76-3-103. Definitions. As used in this chapter, unless the context or subject matter clearly requires otherwise, the
words or phrases shall have the following meanings definitions apply:
(1) "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.
(2) "Dedication" means the deliberate appropriation of land by an owner for any general and public use, reserving to the landowner no rights that are incompatible with the full exercise and enjoyment of the public use to which the property has been devoted.
(3) "Division of land" means the segregation of one or more parcels of land from a larger tract held in single or undivided ownership by transferring or contracting to transfer title to or possession of a portion of the tract or properly filing a certificate of survey or subdivision plat establishing the identity of the segregated parcels pursuant to this chapter. THE CONVEYANCE OF A TRACT OF RECORD OR AN ENTIRE PARCEL OF LAND THAT WAS CREATED BY A PREVIOUS DIVISION OF LAND IS NOT A DIVISION OF LAND.
(4) "Examining land surveyor" means a registered land surveyor
duly appointed by the governing body to review surveys
and plats submitted for filing.
(5) "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
thereto to this chapter.
(6) "Governing body" means a board of county commissioners or the governing authority of a city or town organized pursuant to law.
(7) "Immediate family" means a spouse, children BY BLOOD OR ADOPTION, and parents.
(7)(8) "Irregularly shaped tract of land" means a parcel of land other than an aliquot part of the United States government
survey section or a United States government lot, the boundaries or areas of which cannot be determined without a survey
or trigonometric calculation. (8)(9) "Planned unit development" means a land development project consisting of residential clusters, industrial parks,
shopping centers, or office building parks that comprise compose a planned mixture of land uses built in a prearranged
relationship to each other and having open space and community facilities in common ownership or use. (9)(10) "Plat" means a graphical representation of a subdivision showing the division of land into lots, parcels, blocks,
streets, alleys, and other divisions and dedications. (10)(11) "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 which that furnish a basis for review by a governing body. (11)(12) "Registered land surveyor" means a person licensed in conformance with Title 37, chapter 67, to practice
surveying in the state of Montana. (12)(13) "Registered professional engineer" means a person licensed in conformance with Title 37, chapter 67, to practice
engineering in the state of Montana. (13)(14) "Subdivider" means a person who causes land to be subdivided or who proposes a subdivision of land. (14)(15) "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 or possession of the parcels may be sold, rented, leased, or otherwise conveyed and
includes any resubdivision and further includes a condominium or area, regardless of its size, that provides or will provide
multiple space for recreational camping vehicles or mobile homes. (15)(16) (a) "Tract of record" means : (i) a NOTWITHSTANDING 43 U.S.C. 753, AN AN INDIVIDUAL parcel of land, irrespective of ownership, that can be
identified by legal description, independent of any other parcel of land, using documents on file in the records of the county
clerk and recorder's office ;. (ii) each individual parcel of land identified by a legal description unless the parcel has been joined with one or more other
parcels and has a legal description that describes the resulting single larger parcel; and (iii) a single larger parcel created pursuant to subsection (16)(a)(ii) that is shown and described on a certificate of survey on
file in the office of the county clerk and recorder setting forth the single larger parcel. (b) The term does not apply to multiple parcels shown on a single deed or other instrument.
(B) EACH INDIVIDUAL TRACT OF RECORD CONTINUES TO BE AN INDIVIDUAL PARCEL OF LAND UNLESS THE OWNER OF THE PARCEL HAS JOINED IT WITH OTHER CONTIGUOUS PARCELS BY FILING WITH THE COUNTY CLERK AND RECORDER:
(I) AN INSTRUMENT OF CONVEYANCE IN WHICH THE AGGREGATED PARCELS HAVE BEEN ASSIGNED A LEGAL DESCRIPTION THAT DESCRIBES THE RESULTING SINGLE PARCEL AND IN WHICH THE OWNER EXPRESSLY DECLARES THE OWNER'S INTENTION THAT THE TRACTS BE MERGED; OR
(II) A CERTIFICATE OF SURVEY OR SUBDIVISION PLAT THAT SHOWS THAT THE BOUNDARIES OF THE ORIGINAL PARCELS HAVE BEEN EXPUNGED AND DEPICTS THE BOUNDARIES OF THE LARGER AGGREGATE PARCEL.
(C) AN INSTRUMENT OF CONVEYANCE DOES NOT MERGE PARCELS OF LAND UNDER SUBSECTION
(16)(B)(I) UNLESS THE INSTRUMENT STATES, "THIS INSTRUMENT IS INTENDED TO MERGE INDIVIDUAL
PARCELS OF LAND TO FORM THE AGGREGATE PARCEL(S) DESCRIBED IN THIS INSTRUMENT" OR A
SIMILAR STATEMENT, IN ADDITION TO THE LEGAL DESCRIPTION OF THE AGGREGATE PARCELS,
EXPRESSES EXPRESSING THE OWNER'S INTENT TO EFFECT A MERGER OF PARCELS." Section 2. Section 76-3-201, MCA, is amended to read: "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 shall may not apply to any division of land which that: (1)(a) is created by order of any court of record in this state or by operation of law or which 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); (2)(b) is created to provide security for construction mortgages, liens, or trust indentures; (3)(c) creates an interest in oil, gas, minerals, or water which that is now or hereafter severed from the surface ownership of
real property; (4)(d) creates cemetery lots; (5)(e) is created by the reservation of a life estate; (6)(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." Section 3. Section 76-3-207, MCA, is amended to read: "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 landowner's 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 that 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; (c) a sale of a division of land created under 76-3-201(2) 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."
SECTION 2. SECTION 76-3-201, MCA, IS AMENDED TO READ:
"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
shall may not apply to any division of land which that: (1)(a) is created by order of any court of record in this state or by operation of law or which 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 ); (2)(b) is created to provide security for construction mortgages, liens, or trust indentures; (3)(c) creates an interest in oil, gas, minerals, or water which that is now or hereafter severed from the surface ownership of
real property; (4)(d) creates cemetery lots; (5)(e) is created by the reservation of a life estate; (6)(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."
Section 3. Section 76-3-507, MCA, is amended to read:
"76-3-507. Provision for bonding requirements to ensure construction of public improvements. (1) Except as provided in subsection (2), the governing body shall require the subdivider to complete required improvements within the subdivision prior to the approval of the final plat.
(2) (a) In lieu of the completion of the construction of any public improvements prior to the approval of a final plat, the
governing body shall at the subdivider's option allow the subdivider
shall to provide or cause to be provided a bond or other
reasonable security, in an amount and with surety and conditions satisfactory to the governing body, providing for and
securing the construction and installation of the improvements within a period specified by the governing body and
expressed in the bonds or other security. The governing body shall reduce bond requirements commensurate with the
completion of improvements.
(b) In lieu of requiring a bond or other means of security for the construction or installation of all the required public improvements under subsection (2)(a), the governing body may approve an incremental payment or guarantee plan. The improvements in a prior increment must be completed or the payment or guarantee of payment for the costs of the improvements incurred in a prior increment must be satisfied before development of future increments.
(3) Approval by the governing body of a final plat prior to the completion of required improvements and without the provision of the security required under subsection (2) is not an act of a legislative body for the purposes of 2-9-111."
NEW SECTION. SECTION 4. SEVERABILITY. IF A PART OF [THIS ACT] IS INVALID, ALL VALID PARTS THAT ARE SEVERABLE FROM THE INVALID PART REMAIN IN EFFECT. IF A PART OF [THIS ACT] IS INVALID IN ONE OR MORE OF ITS APPLICATIONS, THE PART REMAINS IN EFFECT IN ALL VALID APPLICATIONS THAT ARE SEVERABLE FROM THE INVALID APPLICATIONS.
NEW SECTION. SECTION 5. EFFECTIVE DATE -- RETROACTIVE APPLICABILITY. [THIS ACT] IS
EFFECTIVE ON PASSAGE AND APPROVAL, AND [SECTION 1] APPLIES RETROACTIVELY, WITHIN THE
MEANING OF 1-2-109, TO TRACTS
OF RECORD FOR LOCAL REGULATION OF SUBDIVISIONS FILED
BEFORE [THE EFFECTIVE DATE OF THIS ACT].