2003 Montana Legislature

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HOUSE BILL NO. 746

INTRODUCED BY D. LEWIS

 

A BILL FOR AN ACT ENTITLED: "AN ACT REQUIRING A LOCAL DEPARTMENT OR BOARD OF HEALTH TO REVIEW SUBDIVISIONS THAT CREATE FIVE OR FEWER PARCELS; AUTHORIZING A LOCAL DEPARTMENT OR BOARD OF HEALTH TO EMPLOY OR CONTRACT WITH A REGISTERED PROFESSIONAL ENGINEER OR A REGISTERED SANITARIAN TO REVIEW SUBDIVISIONS UNDER THE SANITATION IN SUBDIVISIONS LAWS; PROVIDING AN EXCEPTION FOR REVIEW OF PUBLIC WATER SUPPLY SYSTEMS AND PUBLIC SEWAGE SYSTEMS; REVISING THE DEFINITION OF "REVIEWING AUTHORITY"; REQUIRING THAT SUBDIVISIONS COMPLY WITH THE NONDEGRADATION POLICY AND RULES; AUTHORIZING THE REVIEWING AUTHORITY TO ADOPT FEES BY RULE, ORDINANCE, OR RESOLUTION FOR REVIEWING SUBDIVISIONS AND CONDUCTING INSPECTIONS AND ENFORCEMENT ACTIVITIES; PROVIDING AN APPROPRIATION; AMENDING SECTIONS 76-4-102, 76-4-104, 76-4-105, 76-4-106, 76-4-108, 76-4-125, 76-4-126, AND 76-4-129, MCA; AND PROVIDING AN APPLICABILITY DATE."

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

 

     Section 1.  Section 76-4-102, MCA, is amended to read:

     "76-4-102.  Definitions. As used in this part, unless the context clearly indicates otherwise, the following definitions apply:

     (1)  "Adequate municipal facilities" means municipally, publicly, or privately owned facilities that supply water, treat sewage, or dispose of solid waste for all or most properties within the boundaries of a municipality and that are operating in compliance with Title 75, chapters 5 and 6.

     (2)  "Board" means the board of environmental review.

     (3)  "Department" means the department of environmental quality.

     (4)  "Extension of a public sewage system" means a sewerline that connects two or more sewer service lines to a sewer main.

     (5)  "Extension of a public water supply system" means a waterline that connects two or more water service lines to a water main.

     (6)  "Facilities" means public or private facilities for the supply of water or disposal of sewage or solid waste and any pipes, conduits, or other stationary method by which water, sewage, or solid wastes might be transported or distributed.

     (7)  "Mixing zone" has the meaning provided in 75-5-103.

     (8)  "Public sewage system" or "public sewage disposal system" means a public sewage system as defined in 75-6-102.

     (9)  "Public water supply system" has the meaning provided in 75-6-102.

     (10) "Registered professional engineer" means a person licensed to practice as a professional engineer under Title 37, chapter 67.

     (11) "Registered sanitarian" means a person licensed to practice as a sanitarian under Title 37, chapter 40.

     (12) "Reviewing authority" means the department or a local department or board of health certified to conduct a review under entity that conducts a review as provided in 76-4-104.

     (13) "Sanitary restriction" means a prohibition against the erection of any dwelling, shelter, or building requiring facilities for the supply of water or the disposition of sewage or solid waste or the construction of water supply or sewage or solid waste disposal facilities until the department has approved plans for those facilities.

     (14) "Sewer service line" means a sewerline that connects a single building or living unit to a public sewage system or to an extension of a public sewage system.

     (15) "Solid waste" has the meaning provided in 75-10-103.

     (16) "Subdivision" means a division of land or land so divided that creates one or more parcels containing less than 20 acres, 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 any condominium or area, regardless of size, that provides permanent multiple space for recreational camping vehicles or mobile homes.

     (17) "Water service line" means a waterline that connects a single building or living unit to a public water supply system or to an extension of a public water supply system."

 

     Section 2.  Section 76-4-104, MCA, is amended to read:

     "76-4-104.  Rules for administration and enforcement -- review of subdivisions. (1) The department shall, subject to the provisions of 76-4-135, adopt reasonable rules, including adoption of sanitary standards, necessary for administration and enforcement of this part.

     (2)  The Subject to subsection (4), the rules and standards must provide the basis for approving subdivisions for various types of public and private water supplies, sewage disposal facilities, storm water drainage ways, and solid waste disposal. The rules and standards must be related to:

     (a)  size of lots;

     (b)  contour of land;

     (c)  porosity of soil;

     (d)  ground water level;

     (e)  distance from lakes, streams, and wells;

     (f)  type and construction of private water and sewage facilities; and

     (g)  other factors affecting public health and the quality of water for uses relating to agriculture, industry, recreation, and wildlife.

     (3)  (a) Except as provided in subsection (3)(b), the rules must provide for the review of subdivisions by a local department or board of health, as described in Title 50, chapter 2, part 1, if the local department or board of health employs a registered sanitarian or a registered professional engineer and if the department certifies under subsection (4) that the local department or board is competent to conduct the review.

     (b)  (i) Except as provided in 75-6-121 and subsection (3)(b)(ii) of this section, a local department or board of health may not review public water supply systems, public sewage systems, or extensions of or connections to these systems.

     (ii) A local department or board of health may be certified to review subdivisions proposed to connect to existing municipal water and wastewater systems previously approved by the department if no extension of the systems is required.

     (4)  The department shall also adopt standards and procedures for certification and maintaining certification to ensure that a local department or board of health is competent to review the subdivisions as described in subsection (3).

     (5)  The department shall review those subdivisions described in subsection (3) if:

     (a)  a proposed subdivision lies within more than one jurisdictional area and the respective governing bodies are in disagreement concerning approval of or conditions to be imposed on the proposed subdivision; or

     (b)  the local department or board of health elects not to be certified.

     (6)(3)  The rules must further provide for:

     (a)  providing the reviewing authority with a copy of the plat or certificate of survey subject to review under this part and other documentation showing the layout or plan of development, including:

     (i)  total development area; and

     (ii) total number of proposed dwelling units and structures requiring facilities for water supply or sewage disposal;

     (b)  adequate evidence that a water supply that is sufficient in terms of quality, quantity, and dependability will be available to ensure an adequate supply of water for the type of subdivision proposed;

     (c)  evidence concerning the potability of the proposed water supply for the subdivision;

     (d)  adequate evidence that a sewage disposal facility is sufficient in terms of capacity and dependability;

     (e)  standards and technical procedures applicable to storm drainage plans and related designs, in order to ensure proper drainage ways;

     (f)  standards and technical procedures applicable to sanitary sewer plans and designs, including soil testing and site design standards for on-lot sewage disposal systems when applicable;

     (g)  standards and technical procedures applicable to water systems;

     (h)  standards and technical procedures applicable to solid waste disposal;

     (i)  criteria for granting waivers and deviations from the standards and technical procedures adopted under subsections (6)(e) (3)(e) through (6)(h) (3)(h);

     (j)  evidence to establish that, if a public water supply system or a public sewage system is proposed, provision has been made for the system and, if other methods of water supply or sewage disposal are proposed, evidence that the systems will comply with state and local laws and regulations that are in effect at the time of submission of the preliminary or final plan or plat; and

     (k)  evidence to demonstrate that appropriate easements, covenants, agreements, and management entities have been established to ensure the protection of human health and state waters and to ensure the long-term operation and maintenance of water supply, storm water drainage, and sewage disposal facilities.

     (4) A subdivision may only be approved if it complies with the nondegradation policy established in 75-5-303 and the rules adopted to implement that policy.

     (5) (a) Except as provided in subsection (5)(b) and subject to subsection (5)(c), a subdivision must be reviewed:

     (i) if a subdivision creates five or fewer parcels, by the local department or board of health;

     (ii) if a subdivision creates more than five parcels:

     (A) by the local department or board of health; or

     (B) if the local department or board of health does not accept reviewing authority status and notifies the department within 10 days of receipt of a subdivision application, by the department; and

     (iii) if a subdivision lies within more than one jurisdictional area and the local reviewing authorities are in disagreement concerning approval of or conditions to be imposed on the proposed subdivision, by the department.

     (b) A subdivision application that requires review of public water supply systems, public sewage systems, or extensions of these systems must be reviewed as provided in subsection (6).

     (c) The reviewing authority must employ or contract with a registered professional engineer or a registered sanitarian to conduct the review.

     (7)(6)  A local department or board of health may not review public water supply systems, public sewage systems, or extensions of these systems. If the reviewing authority is a local department or board of health, it shall provide a copy of the subdivision application to the department within 5 days of receipt of the application. The reviewing authority shall notify the department of its recommendation for approval or disapproval of the subdivision not later than 50 days from its receipt of the subdivision application. The department shall review the public water supply system, public sewage system, or extension of these systems and make a final decision on the subdivision within 10 days after receiving the recommendation of the local reviewing authority, but not later than 60 days after the submission of a complete application, as provided in 76-4-125. If the reviewing authority is a local department or board of health, the department may only deny or condition a certificate of subdivision approval based on its review of the public water supply system, public sewage system, or extension of these systems.

     (8)(7)  Review and certification or denial of certification that a division of land is not subject to sanitary restrictions under this part may occur only under those rules in effect when a complete application is submitted to the reviewing authority, except that in cases in which current rules would preclude the use for which the lot was originally intended, the applicable requirements in effect at the time the lot was recorded must be applied. In the absence of specific requirements, minimum standards necessary to protect public health and water quality apply.

     (9)(8)  The reviewing authority may not deny or condition a certificate of subdivision approval under this part unless it provides a written statement to the applicant detailing the circumstances of the denial or condition imposition. The statement must include:

     (a)  the reason for the denial or condition imposition;

     (b)  the evidence that justifies the denial or condition imposition; and

     (c)  information regarding the appeal process for the denial or condition imposition."

 

     Section 3.  Section 76-4-105, MCA, is amended to read:

     "76-4-105.  Subdivision fees -- subdivision program funding use of fees. (1) The reviewing authority may charge fees that do not exceed actual costs for reviewing subdivisions, conducting inspections pursuant to 76-4-107, and conducting enforcement activities pursuant to 76-4-108.

     (2) The department shall adopt rules setting fees and a local reviewing authority shall, by ordinance or resolution, set forth fees that do not exceed actual costs for reviewing plats and subdivisions, conducting inspections pursuant to 76-4-107, and conducting enforcement activities pursuant to 76-4-108 authorized under subsection (1). The rules must provide for a schedule of fees to be paid by the applicant to the department or, if applicable, to another reviewing authority for deposit in the general fund of the reviewing authority's jurisdiction. The

     (3) All fees collected pursuant to this section must be used for review of plats and subdivisions, conducting inspections pursuant to 76-4-107, and conducting enforcement activities pursuant to 76-4-108. The fees must be based on the complexity of the subdivision, including but not limited to:

     (a)  the number of lots in the subdivision;

     (b)  the type of water system to serve the development;

     (c)  the type of sewage disposal to serve the development; and

     (d)  the degree of environmental research necessary to supplement the review procedure.

     (2)  The department shall adopt rules to determine the distribution of fees to the local reviewing authority for reviews conducted pursuant to 76-4-104, inspections conducted pursuant to 76-4-107, and enforcement activities conducted pursuant to 76-4-108."

 

     Section 4.  Section 76-4-106, MCA, is amended to read:

     "76-4-106.  Cooperation with other governmental agencies. (1) The reviewing authority may require the use of records of all state, county, and municipal agencies and may seek the assistance of those agencies.

     (2)  State, county, and municipal officers and employees, including local health officers and sanitarians, shall cooperate with the reviewing authority in furthering the purposes of this part so far as is practical and consistent with their own duties.

     (3)  A local reviewing authority without a registered sanitarian or a registered professional engineer to conduct a review under this part may contract with one of the following to conduct the review required under this part:

     (a) another local reviewing authority for the services of its registered sanitarian or registered professional engineer to conduct the review;

     (b) a registered sanitarian or a registered professional engineer; or

     (c) the department."

 

     Section 5.  Section 76-4-108, MCA, is amended to read:

     "76-4-108.  Enforcement. (1) If the reviewing authority has reason to believe that a violation of this part or a rule adopted under this part has occurred, the reviewing authority may have written notice and an order served personally or by certified mail on the alleged violator or the alleged violator's agent. The notice must state the provision alleged to be violated, the facts alleged to constitute the violation, the corrective action required by the reviewing authority, and the time within which the action is to be taken. The alleged violator may, no later than 30 days after service of a notice and order under this section, request a hearing before the governing body of the local reviewing authority if it issued the notice of violation or the board if the reviewing authority is the department issued the notice of violation. A request for a hearing must be filed in writing with the appropriate entity and must state the reason for the request. If a request is filed, a hearing must be held within a reasonable time.

     (2)  In addition to or instead of issuing an order, the reviewing authority may initiate any other appropriate action to compel compliance with this part.

     (3)  The provisions of this part may be enforced by a reviewing authority other than the department or board only for those divisions described in 76-4-104(3). If a local reviewing authority fails to adequately enforce the provisions of this part, the department or the board may compel compliance with this part under the provisions of this section.

     (4)  When a local reviewing authority exercises the authority delegated to it by this section, the local reviewing authority is legally responsible for its actions under this part.

     (5)(3)  If the department or a local reviewing authority determines that a violation of this part has occurred, the department or the local reviewing authority may revoke its certificate of approval for the subdivision and reimpose sanitary restrictions following written notice to the alleged violator. Upon revocation of a certificate, the person aggrieved by revocation may request a hearing. A hearing request must be filed in writing within 30 days after receipt of the notice of revocation and must state the reason for the request. The hearing is before the board if the department revoked the certificate or before the local reviewing authority if the local reviewing authority revoked the certificate.

     (6)(4)  The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing held by the board under this section."

 

     Section 6.  Section 76-4-125, MCA, is amended to read:

     "76-4-125.  Review of subdivision application -- land divisions excluded from review. (1) Except as provided in subsection (2), an application for review of a subdivision must be submitted to the reviewing authority. The review by the reviewing authority must be as follows:

     (a)  At any time after the developer has submitted an application under the Montana Subdivision and Platting Act, the developer shall present a subdivision application to the reviewing authority. The application must include preliminary plans and specifications for the proposed development, whatever information the developer feels necessary for its subsequent review, and information required by the reviewing authority. Subdivision fees assessed by the reviewing authority must accompany the application. If the subdivision application requires review of a public water supply system, public sewage system, or an extension of these systems, the fee charged by the department for review of these systems or extensions must also accompany the application. If the proposed development includes onsite sewage disposal facilities, the developer shall notify the designated agent of the local board of health prior to presenting the subdivision application to the reviewing authority. The agent may conduct a preliminary site assessment to determine whether the site meets applicable state and local requirements.

     (b)  Except as provided in 75-1-208(4)(b), the department reviewing authority shall make a final decision on the proposed subdivision within 60 days after the submission of a complete application and payment of fees to the reviewing authority unless an environmental impact statement is required, at which time this deadline may be increased to 120 days. The reviewing authority may not request additional information for the purpose of extending the time allowed for a review and final decision on the proposed subdivision. If the department reviewing authority approves the subdivision, the department reviewing authority shall issue a certificate of subdivision approval indicating that it has approved the plans and specifications and that the subdivision is not subject to a sanitary restriction.

     (2)  A subdivision excluded from the provisions of chapter 3 must be submitted for review according to the provisions of this part, except that the following divisions or parcels, unless the exclusions are used to evade the provisions of this part, are not subject to review:

     (a)  the exclusions cited in 76-3-201 and 76-3-204;

     (b)  divisions made for the purpose of acquiring additional land to become part of an approved parcel, provided that water or sewage disposal facilities may not be constructed on the additional acquired parcel and that the division does not fall within a previously platted or approved subdivision;

     (c)  divisions made for purposes other than the construction of water supply or sewage and solid waste disposal facilities as the department specifies by rule;

     (d)  divisions located within jurisdictional areas that have adopted growth policies pursuant to chapter 1 or within first-class or second-class municipalities for which the governing body certifies, pursuant to 76-4-127, that adequate storm water drainage and adequate municipal facilities will be provided; and

     (e)  subject to the provisions of subsection (3), a remainder of an original tract created by segregating a parcel from the tract for purposes of transfer if:

     (i)  the remainder is served by a public or multiple-user sewage system approved before January 1, 1997, pursuant to local regulations or this chapter; or

     (ii) the remainder is 1 acre or larger and has an individual sewage system that was constructed prior to April 29, 1993, and, if required when installed, was approved pursuant to local regulations or this chapter.

     (3)  Consistent with the applicable provisions of 50-2-116(1)(i), a local health officer may require that, prior to the filing of a plat or a certificate of survey subject to review under this part for the parcel to be segregated from the remainder referenced in subsection (2)(e)(ii), the remainder include acreage or features sufficient to accommodate a replacement drainfield."

 

     Section 7.  Section 76-4-126, MCA, is amended to read:

     "76-4-126.  Right to hearing. (1) Upon a denial of approval of subdivision plans and specifications relating to environmental health facilities, the person who is aggrieved by the denial may request a hearing before:

     (a) the board, if the department is the reviewing authority; or

     (b) the governing body of the local reviewing authority.

     (2) A hearing request must be filed, in writing, within 30 days after receipt of the notice of denial and must state the reason for the request. The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing held by the board under this section.

     (2)(3)  If the grounds for a denial of approval under this part include noncompliance with local laws or regulations other than those adopting, pursuant to 50-2-116, state minimum standards for the control and disposal of sewage, the board shall upon receipt of a hearing request refer the local compliance issues to the appropriate local authority. After opportunity for a hearing, the local authority shall issue a determination regarding the local compliance issues, and the board shall incorporate the determination of the local authority in the board's final decision."

 

     Section 8.  Section 76-4-129, MCA, is amended to read:

     "76-4-129.  Joint application form and concurrent review. (1) Within 90 days after July 1, 1977, the The department shall prepare and distribute a joint application form that can be used by an applicant to apply for approval of a subdivision under the provisions of this part and the provisions of chapter 3. When an application is received by either the department reviewing authority or a local government the local governing body pursuant to chapter 3, the department reviewing authority or local government governing body is responsible for forwarding the appropriate parts of the application to the other entity.

     (2)  The review required by this part and the provisions of chapter 3 shall must occur concurrently."

 

     NEW SECTION.  Section 9.  Appropriation. There is appropriated $50,000 from the state special revenue fund provided for in 76-4-132 to the department for each of the fiscal years 2004 and 2005 to be used as provided in 76-4-105.

 

     NEW SECTION.  Section 10.  Applicability. [This act] applies to subdivision applications submitted on or after January 1, 2004.

- END -

 


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