2015 Montana Legislature

UNAPPROVED DRAFT BILL -- Subject to Change Without Notice!

Additional Bill Links     PDF (with line numbers)

BILL NO.

INTRODUCED BY                                                                                                                                                 

                              (Primary Sponsor)

A BILL FOR AN ACT ENTITLED: "AN ACT ESTABLISHING A PROCESS FOR REVIEW OF A DESIGN OR CONCEPTUAL PLAN OF A PROPOSED SUBDIVISION BEFORE SUBMITTAL OF A SUBDIVISION APPLICATION; PROVIDING THAT A SUBDIVIDER MAY CHOOSE TO SUBMIT A DESIGN OR CONCEPTUAL PLAN; REQUIRING CERTAIN INFORMATION TO BE PROVIDED WITH THE DESIGN OR CONCEPTUAL PLAN; PROHIBITING A GOVERNING BODY OR REVIEWING AGENT OR AGENCY FROM REQUIRING CERTAIN INFORMATION; ESTABLISHING TIMELINES FOR REVIEW; REQUIRING THE GOVERNING BODY OR REVIEWING AGENT OR AGENCY TO PROVIDE CERTAIN INFORMATION IN WRITING TO THE SUBDIVIDER; REQUIRING MEETINGS TO RESOLVE CONFLICTS IF REQUESTED BY THE SUBDIVIDER; REQUIRING A PUBLIC HEARING UNDER CERTAIN CIRCUMSTANCES; PROVIDING FOR REVISIONS TO BE MADE TO THE DESIGN OR CONCEPTUAL PLAN; PROHIBITING DENIAL OF A DESIGN OR CONCEPTUAL PLAN UNDER CERTAIN CIRCUMSTANCES; PROHIBITING DENIAL OF A SUBDIVISION APPLICATION BASED ON CERTAIN CONDITIONS; ALLOWING FOR THE ESTABLISHMENT OF REVIEW FEES; AND AMENDING SECTIONS 76-3-504 AND 76-3-608, MCA."

 

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

 

     NEW SECTION.  Section 1.  Preapplication conceptual plan review -- process -- deadlines -- fees. (1) (a) Before submitting to the governing body or reviewing agent or agency an application for a proposed subdivision under 76-3-601, a subdivider may submit a design or conceptual plan of the proposed subdivision to the governing body or reviewing agent or agency.

     (b) If a subdivider chooses to submit a design or conceptual plan as provided in this section, it must be submitted in a form prescribed by the governing body as provided in 76-3-504(1)(t).

     (2) A design or conceptual plan submitted as provided in this section must:

     (a) show the general layout of streets, blocks, and lots in sketch form;

     (b) describe the existing conditions and characteristics of the land on and adjacent to the proposed subdivision site;

     (c) show areas set aside for trails, parks, open space, and other public facilities;

     (d) include a statement of the intended use of the proposed subdivision, such as residential, single-family housing, multifamily housing, commercial, or industrial, that describes the general design and layout of the structures to be proposed for the subdivision and the density of the structures;

     (e) include a map showing the relationship of the proposed subdivision to the surrounding area; and

     (f) describe the land use and existing zoning of the proposed subdivision and the adjacent land.

     (3) For the purposes of a design or conceptual plan review, a subdivider may not be required to submit information regarding the environmental assessment, community impact reports, statements of probable impacts, riparian resource plans, weed management plans, water right information, surveying requirements, traffic impact studies, or any other information that is not required under subsection (2).

     (4) A design or conceptual plan including the information required in subsection (2) is considered to be received on the date of delivery to the governing body or reviewing agent or agency when accompanied by the review fee submitted as provided in subsection (15).

     (5) (a) Within 15 days after the date of receipt of a design or conceptual plan including the information listed in subsection (2), the governing body or reviewing agent or agency shall provide to the subdivider in writing:

     (i) a determination of whether the design or conceptual plan indicates that the proposed subdivision will conform with existing local regulations, policies, goals, objectives, and development plans;

     (ii) information regarding any unique environmental concerns or hazards that are associated with the property;

     (iii) a determination of whether the general layout and density of the proposed subdivision is appropriate for the surrounding area shown on the map provided pursuant to subsection (2)(e);

     (iv) a determination of whether the design or conceptual plan indicates that the subdivision will comply with applicable subdivision design standards;

     (v) information regarding any potential problems with legal and physical access to the proposed subdivision that are indicated based on the information provided;

     (vi) information regarding open-space requirements on the property or in the vicinity of the property;

     (vii) a list of other local or state agencies that should be contacted prior to preparing a preliminary plat; and

     (viii) all necessary forms and checklists that must be completed prior to the submission of a preliminary plat.

     (b) If the governing body or reviewing agent or agency determines that information submitted by the subdivider pursuant to subsection (2) is not sufficient to allow for review of the design or conceptual plan, the governing body or reviewing agent or agency shall identify the insufficient information in the notification to the subdivider required under subsection (5)(a).

     (6) (a) The governing body or reviewing agent or agency shall approve the design or conceptual plan if the design or conceptual plan indicates through substantial evidence that the proposed subdivision will conform with policies, goals, standards, regulations, and other requirements incorporated in the review conducted pursuant to subsection (5).

     (b) If the governing body or reviewing agent or agency approves the design or conceptual plan, the governing body or reviewing agent or agency shall provide the subdivider with a dated and signed statement of approval. In addition to the statement of approval, the governing body or reviewing agent or agency shall provide to the subdivider and make available to the public a written statement that:

     (i) identifies the regulations and statutes on which the decision was based;

     (ii) explains how the regulations and statutes apply to any conditions placed on the approval of the design or conceptual plan;

     (iii) provides the facts and conclusions that the governing body or reviewing agent or agency relied on in making the decision to approve the design or conceptual plan; and

     (iv) includes any reference documents or other materials that informed the decision to approve the design or conceptual plan.

     (7) (a) If the governing body or reviewing agent or agency denies or conditionally approves the design or conceptual plan, the governing body or reviewing agent or agency shall issue to the subdivider general recommendations on how the design or conceptual plan may be modified to obtain approval under subsection (6).

     (b) The subdivider may submit a modified design or conceptual plan that incorporates the recommendations issued by the governing body or reviewing agent or agency under subsection (7)(a). The modified design or conceptual plan is subject to the same procedures and time limits provided for the original design or conceptual plan under this section.

     (8) (a) At any time following receipt of notification that the governing body or reviewing agent or agency denied or conditionally approved a design or conceptual plan as provided in subsection (7), the subdivider may request in writing a meeting with the governing body or reviewing agent or agency to discuss the information provided by the governing body or reviewing agent or agency and to address questions the subdivider may have regarding the review.

     (b) A requested meeting must be held within 15 days after the date that the governing body or reviewing agent or agency receives the subdivider's written request for the meeting.

     (c) If a meeting is requested, the governing body or reviewing agent or agency and the subdivider shall work cooperatively to resolve any problems associated with the design or conceptual plan that resulted in the governing body or reviewing agent or agency's decision to deny or conditionally approve the design or conceptual plan.

     (d) The governing body or reviewing agent or agency and the subdivider may agree to additional meetings, if necessary. Any additional meetings must be held within 15 days after the date of the first meeting unless the governing body or reviewing agent or agency and the subdivider agree in writing to extend the time period.

     (9) (a) Within 15 days after receipt of a modified design or conceptual plan submitted as provided in subsection (7), the governing body or reviewing agent or agency shall notify the subdivider in writing that the design or conceptual plan is approved, conditionally approved, or denied, based on whether the design or conceptual plan indicates that the proposed subdivision will conform with policies, goals, standards, regulations, and other requirements incorporated in the review conducted pursuant to subsection (5).

     (b) If the governing body or reviewing agent or agency denies or conditionally approves the design or conceptual plan, it shall provide the subdivider in writing the facts or conclusions that the governing body or reviewing agent or agency relied on in making its decision and shall reference the documents, materials, regulations, and statutes that informed the decision.

     (c) If the governing body or reviewing agent or agency denies or conditionally approves the modified design or conceptual plan, the subdivider may submit a subsequent modified design or conceptual plan with changes to the portions of the design or plan that caused the design or plan to be denied or conditionally approved. The modified design or conceptual plan is subject to the same procedures and time limits provided for the original design or conceptual plan under this section.

     (10) (a) If the governing body or reviewing agent or agency approves or conditionally approves the design or conceptual plan, the governing body or reviewing agent or agency, on written request of the subdivider, shall hold a public hearing on the design or conceptual plan and collect public comment.

     (b) Notice of the public hearing must be given by publication in a newspaper of general circulation in the county at least 15 days before the date of the hearing. The subdivider, each property owner of record whose property is immediately adjacent to the land included in the design or conceptual plan, and each purchaser under contract for deed of property immediately adjacent to the land included in the design or conceptual plan must be notified of the hearing by registered or certified mail at least 15 days before the date of the hearing.

     (11) Within 15 days after the date of a public hearing held for a conditionally approved design or conceptual plan, the governing body or reviewing agent or agency shall consider whether information received at the hearing warrants revision of the written notification provided to the subdivider under subsection (5) and revision of the design or conceptual plan. The governing body or reviewing agent or agency shall deliver a revised notification, if warranted, to the subdivider before the end of the 15-day period.

     (12) (a) On receipt of a revised written notification provided under subsection (9) or (11), the subdivider may submit a subsequent modified design or conceptual plan or may request in writing a meeting with the governing body or reviewing agent or agency to attempt to resolve conflicts between the design or conceptual plan and the recommended revisions.

     (b) A requested meeting must be held within 5 days after the date that the governing body or reviewing agent or agency receives the subdivider's written request for the meeting.

     (c) Within 15 days after the date that the governing body or reviewing agent or agency receives a modified design or conceptual plan, if the governing body or reviewing agent or agency approves the modified design or conceptual plan, it shall provide the subdivider with a dated and signed statement of approval. In addition to the statement of approval, the governing body or reviewing agent or agency shall provide to the subdivider and make available to the public a written statement that includes the information described in subsection (6)(b) as well as public testimony, if a public hearing was held under subsection (10)(a).

     (d) If agreement cannot be reached on a modified design or conceptual plan as provided in this subsection (12), the subdivider may submit a subsequent modified design or conceptual plan. A subsequent modified design or conceptual plan is subject to the same procedures and time limits provided for the original design or plan under this section.

     (13) (a) After a design or conceptual plan has been approved as provided in subsection (6) or (12), the governing body or reviewing agent or agency may not impose conditions on the approval of the design or conceptual plan that were not included in the written statement provided with the statement of approval pursuant to subsection (6) or (12), unless the conditions are necessary to mitigate impacts to public health and safety that were not known or ascertainable on the date of the written decision.

     (b) In the absence of evidence of impacts to public health and safety on the date of the written decision, the governing body or reviewing agent or agency may not deny an application for a proposed subdivision submitted under 76-3-601 because of objections to the conditions on which approval of a design or conceptual plan was based from:

     (i) the public before, during, or after a public hearing held pursuant to 76-3-605; or

     (ii) a federal, state, or local government agency or body.

     (14) A governing body or reviewing agent or agency may not require that a subdivider submit a design or conceptual plan of a proposed subdivision as part of the local review procedure provided for in this part.

     (15) A governing body or reviewing agent or agency may establish reasonable fees to be paid by a subdivider to defray the expense of reviewing and processing a design or conceptual plan under this section.

 

     Section 2.  Section 76-3-504, MCA, is amended to read:

     "76-3-504.  Subdivision regulations -- contents. (1) The subdivision regulations adopted under this chapter must, at a minimum:

     (a)  list the materials that must be included in a subdivision application in order for the application to be determined to contain the required elements for the purposes of the review required in 76-3-604(1);

     (b)  except as provided in 76-3-509, 76-3-609, or 76-3-616, require the subdivider to submit to the governing body an environmental assessment as prescribed in 76-3-603;

     (c)  establish procedures consistent with this chapter for the submission and review of subdivision applications and amended applications;

     (d)  prescribe the form and contents of preliminary plats and the documents to accompany final plats;

     (e)  provide for the identification of areas that, because of natural or human-caused hazards, are unsuitable for subdivision development. The regulations must prohibit subdivisions in these areas unless the hazards can be eliminated or overcome by approved construction techniques or other mitigation measures authorized under 76-3-608(4) and (5). Approved construction techniques or other mitigation measures may not include building regulations as defined in 50-60-101 other than those identified by the department of labor and industry as provided in 50-60-901.

     (f)  prohibit subdivisions for building purposes in areas located within the floodway of a flood of 100-year frequency, as defined by Title 76, chapter 5, or determined to be subject to flooding by the governing body;

     (g)  prescribe standards for:

     (i)  the design and arrangement of lots, streets, and roads;

     (ii) grading and drainage;

     (iii) subject to the provisions of 76-3-511, water supply and sewage and solid waste disposal that meet the:

     (A)  regulations adopted by the department of environmental quality under 76-4-104 for subdivisions that will create one or more parcels containing less than 20 acres; and

     (B)  standards provided in 76-3-604 and 76-3-622 for subdivisions that will create one or more parcels containing 20 acres or more and less than 160 acres; and

     (iv) the location and installation of public utilities;

     (h)  provide procedures for the administration of the park and open-space requirements of this chapter;

     (i)  provide for the review of subdivision applications by affected public utilities and those agencies of local, state, and federal government identified during the preapplication consultation conducted pursuant to subsection (1)(q) or those having a substantial interest in a proposed subdivision. A public utility or agency review may not delay the governing body's action on the application beyond the time limits specified in this chapter, and the failure of any agency to complete a review of an application may not be a basis for rejection of the application by the governing body.

     (j)  when a subdivision creates parcels with lot sizes averaging less than 5 acres, require the subdivider to:

     (i)  reserve all or a portion of the appropriation water rights owned by the owner of the land to be subdivided and transfer the water rights to a single entity for use by landowners within the subdivision who have a legal right to the water and reserve and sever any remaining surface water rights from the land;

     (ii) if the land to be subdivided is subject to a contract or interest in a public or private entity formed to provide the use of a water right on the subdivision lots, establish a landowner's water use agreement administered through a single entity that specifies administration and the rights and responsibilities of landowners within the subdivision who have a legal right and access to the water; or

     (iii) reserve and sever all surface water rights from the land;

     (k)  (i) except as provided in subsection (1)(k)(ii), require the subdivider to establish ditch easements in the subdivision that:

     (A)  are in locations of appropriate topographic characteristics and sufficient width to allow the physical placement and unobstructed maintenance of open ditches or belowground pipelines for the delivery of water for irrigation to persons and lands legally entitled to the water under an appropriated water right or permit of an irrigation district or other private or public entity formed to provide for the use of the water right on the subdivision lots;

     (B)  are a sufficient distance from the centerline of the ditch to allow for construction, repair, maintenance, and inspection of the ditch; and

     (C)  prohibit the placement of structures or the planting of vegetation other than grass within the ditch easement without the written permission of the ditch owner.

     (ii) Establishment of easements pursuant to this subsection (1)(k) is not required if:

     (A)  the average lot size is 1 acre or less and the subdivider provides for disclosure, in a manner acceptable to the governing body, that adequately notifies potential buyers of lots that are classified as irrigated land and may continue to be assessed for irrigation water delivery even though the water may not be deliverable; or

     (B)  the water rights are removed or the process has been initiated to remove the water rights from the subdivided land through an appropriate legal or administrative process and if the removal or intended removal is denoted on the preliminary plat. If removal of water rights is not complete upon filing of the final plat, the subdivider shall provide written notification to prospective buyers of the intent to remove the water right and shall document that intent, when applicable, in agreements and legal documents for related sales transactions.

     (l)  require the subdivider, unless otherwise provided for under separate written agreement or filed easement, to file and record ditch easements for unobstructed use and maintenance of existing water delivery ditches, pipelines, and facilities in the subdivision that are necessary to convey water through the subdivision to lands adjacent to or beyond the subdivision boundaries in quantities and in a manner that are consistent with historic and legal rights;

     (m)  require the subdivider to describe, dimension, and show public utility easements in the subdivision on the final plat in their true and correct location. The public utility easements must be of sufficient width to allow the physical placement and unobstructed maintenance of public utility facilities for the provision of public utility services within the subdivision.

     (n)  establish whether the governing body, its authorized agent or agency, or both will hold public hearings;

     (o)  establish procedures describing how the governing body or its agent or agency will address information presented at the hearing or hearings held pursuant to 76-3-605 and 76-3-615;

     (p)  establish criteria that the governing body or reviewing authority will use to determine whether a proposed method of disposition using the exemptions provided in 76-3-201 or 76-3-207 is an attempt to evade the requirements of this chapter. The regulations must provide for an appeals process to the governing body if the reviewing authority is not the governing body.

     (q)  establish a preapplication process that:

     (i)  requires a subdivider to meet with the authorized agent or agency, other than the governing body, that is designated by the governing body to review subdivision applications prior to the subdivider submitting the application;

     (ii) requires, for informational purposes only, identification of the state laws, local regulations, and growth policy provisions, if a growth policy has been adopted, that may apply to the subdivision review process;

     (iii) requires a list to be made available to the subdivider of the public utilities, those agencies of local, state, and federal government, and any other entities that may be contacted for comment on the subdivision application and the timeframes that the public utilities, agencies, and other entities are given to respond. If, during the review of the application, the agent or agency designated by the governing body contacts a public utility, agency, or other entity that was not included on the list originally made available to the subdivider, the agent or agency shall notify the subdivider of the contact and the timeframe for response.

     (iv) requires that a preapplication meeting take place no more than 30 days from the date that the authorized agent or agency receives a written request for a preapplication meeting from the subdivider; and

     (v)  establishes a time limit after a preapplication meeting by which an application must be submitted;

     (r)  require that the written decision required by 76-3-620 must be provided to the applicant within 30 working days following a decision by the governing body to approve, conditionally approve, or deny a subdivision;

     (s)  establish criteria for reviewing an area, regardless of its size, that provides or will provide multiple spaces for recreational camping vehicles or mobile homes; and

     (t) provide a process, in compliance with [section 1] and separate from the preapplication process provided for in subsection (1)(q), for review and processing of a design or conceptual plan.

     (2)  In order to accomplish the purposes described in 76-3-501, the subdivision regulations adopted under 76-3-509 and this section may include provisions that are consistent with this section that promote cluster development."

 

     Section 3.  Section 76-3-608, MCA, is amended to read:

     "76-3-608.  Criteria for local government review. (1) The basis for the governing body's decision to approve, conditionally approve, or deny a proposed subdivision is whether the subdivision application, preliminary plat, applicable environmental assessment, public hearing, planning board recommendations, or additional information demonstrates that development of the proposed subdivision meets the requirements of this chapter. A governing body may not deny approval of a proposed subdivision based solely on the subdivision's impacts on educational services or based solely on parcels within the subdivision having been designated as wildland-urban interface parcels under 76-13-145.

     (2)  The governing body shall issue written findings of fact that weigh the criteria in subsection (3), as applicable.

     (3)  A subdivision proposal must undergo review for the following primary criteria:

     (a)  except when the governing body has established an exemption pursuant to subsection (6) of this section or except as provided in 76-3-509, 76-3-609(2) or (4), or 76-3-616, the impact on agriculture, agricultural water user facilities, local services, the natural environment, wildlife, wildlife habitat, and public health and safety;

     (b)  compliance with:

     (i)  the survey requirements provided for in part 4 of this chapter;

     (ii) the local subdivision regulations provided for in part 5 of this chapter; and

     (iii) the local subdivision review procedure provided for in this part;

     (c)  the provision of easements within and to the proposed subdivision for the location and installation of any planned utilities; and

     (d)  the provision of 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.

     (4)  The governing body may require the subdivider to design the proposed subdivision to reasonably minimize potentially significant adverse impacts identified through the review required under subsection (3). The governing body shall issue written findings to justify the reasonable mitigation required under this subsection (4).

     (5)  (a) In reviewing a proposed subdivision under subsection (3) and when requiring mitigation under subsection (4), a governing body may not unreasonably restrict a landowner's ability to develop land, but it is recognized that in some instances the unmitigated impacts of a proposed development may be unacceptable and will preclude approval of the subdivision.

     (b)  When requiring mitigation under subsection (4), a governing body shall consult with the subdivider and shall give due weight and consideration to the expressed preference of the subdivider.

     (6)  A governing body may conditionally approve or deny a proposed subdivision as a result of the water and sanitation information provided pursuant to 76-3-622 or public comment received pursuant to 76-3-604 on the information provided pursuant to 76-3-622 only if the conditional approval or denial is based on existing subdivision, zoning, or other regulations that the governing body has the authority to enforce.

     (7)  A governing body may not require as a condition of subdivision approval that a property owner waive a right to protest the creation of a special improvement district or a rural improvement district for capital improvement projects that does not identify the specific capital improvements for which protest is being waived. A waiver of a right to protest may not be valid for a time period longer than 20 years after the date that the final subdivision plat is filed with the county clerk and recorder.

     (8)  A governing body may not approve a proposed subdivision if any of the features and improvements of the subdivision encroach onto adjoining private property in a manner that is not otherwise provided for under chapter 4 or this chapter or if the well isolation zone of any proposed well to be drilled for the proposed subdivision encroaches onto adjoining private property unless the owner of the private property authorizes the encroachment. For the purposes of this section, "well isolation zone" has the meaning provided in 76-4-102.

     (9)  If a federal or state governmental entity submits a written or oral comment or an opinion regarding wildlife, wildlife habitat, or the natural environment relating to a subdivision application for the purpose of assisting a governing body's review, the comment or opinion may be included in the governing body's written statement under 76-3-620 only if the comment or opinion provides scientific information or a published study that supports the comment or opinion. A governmental entity that is or has been involved in an effort to acquire or assist others in acquiring an interest in the real property identified in the subdivision application shall disclose that the entity has been involved in that effort prior to submitting a comment, an opinion, or information as provided in this subsection.

     (10) As provided in [section 1(13)(b)], a governing body may not deny a proposed subdivision based on public or agency objections to conditions on which a design or conceptual plan was approved under [section 1]."

 

     NEW SECTION.  Section 4.  Codification instruction. [Section 1] is intended to be codified as an integral part of Title 76, chapter 3, part 6, and the provisions of Title 76, chapter 3, part 6, apply to [section 1].

- END -

 


Latest Version of LC 170 (LC0170.01)
Processed for the Web on January 7, 2015 (10:16am)

New language in a bill appears underlined, deleted material appears stricken.

Sponsor names are handwritten on introduced bills, hence do not appear on the bill until it is reprinted.

See the status of this bill for the bill's primary sponsor.

 Status of this Bill | 2015 Legislature | Leg. Branch Home
Authorized print version of this bill w/line numbers (PDF format)
[
NEW SEARCH ]

Prepared by Montana Legislative Services
(406) 444-3064