Senate Bill No. 137

Introduced By _______________________________________________________________________________

A Bill for an Act entitled: "An Act exempting certain divisions of land from subdivision review if the owner permanently dedicates sufficient open space; providing for local certification of an exemption; amending sections 76-3-102, 76-3-207, and 76-4-103, MCA; and providing an effective date."

WHEREAS, because farms and ranches in Montana are generally investment-intensive businesses (the wealth of the operation is in stock, buildings, machinery, and land), farmers and ranchers are often forced to sell their land to generate sufficient income to retire; and

WHEREAS, with increasing frequency, agricultural and ranch land is taken out of production and sold to residential developers and lands are lost to agricultural production, wildlife habitat, and general open-space uses; and

WHEREAS, landowners have the right, under Montana law, to subdivide property into 160-acre tracts by filing a certificate of survey with the County Commissioners, and many large parcels of land were subdivided into 20-acre tracts before the 1993 Legislative Session; and

WHEREAS, landowners have the right to develop these subdivided tracts by merely complying with state requirements concerning septic systems; and

WHEREAS, the subdivision review process is often an expensive and time-consuming process.

THEREFORE, this bill is enacted to enhance the likelihood that landowners will retain at least a portion of their holdings in agricultural or other open-space uses.


The intent of the legislature is to provide an additional incentive to farmers, ranchers, and other landowners to retain portions of their holdings in agricultural or other open-space uses. This is achieved by allowing parcel sizes that would normally trigger subdivision review to be created without subdivision review if the landowner permanently protects other lands from development. The greater the number of smaller parcels created, the greater the amount of open space that must be set aside. The people of Montana benefit through maintaining open space, and the landowner achieves flexibility in exercising property rights. The option is voluntary, and current subdivision and development procedures would continue to be available to those not wishing to pursue this option.

Be it enacted by the Legislature of the State of Montana:

Section 1.  Section 76-3-102, MCA, is amended to read:

"76-3-102.   Statement of purpose. It is the purpose of this chapter to:

(1)  promote the public health, safety, and general welfare by regulating the subdivision of land;

(2)  prevent overcrowding of land;

(3)  lessen congestion in the streets and highways;

(4)  provide for adequate light, air, water supply, sewage disposal, parks and recreation areas, ingress and egress, and other public requirements;

(5)  require development in harmony with the natural environment;

(6) enhance the likelihood that real property owners will retain at least a portion of their holdings in agricultural or other open-space uses;

(6)(7)  protect the rights of property owners; and

(7)(8)  require uniform monumentation of land subdivisions and transferring interests in real property by reference to a plat or certificate of survey."

NEW SECTION. Section 2.  Divisions exempted from review but subject to certain requirements -- open-space dedication. (1) Except as provided in [section 3], parcels created under this section are not subject to review under this chapter.

(2) For any tract of land, the owner of that tract may create parcels of land up to the allowable parcel density of the original tract, subject to the following requirements:

(a) The created parcels are at least 1 acre and no more than 5 acres in size.

(b) The created parcels are located within the original tract.

(c) The landowner applies one of the following to a number of allowable parcels equal to the number of parcels being created under this section:

(i) an irrevocable conservation easement, granted in perpetuity, as provided for in Title 76, chapter 6, prohibiting further division of the parcel and prohibiting use of the land for forest practices, as defined in Title 76, chapter 13, or for residential, commercial, or industrial development; or

(ii) a deed restriction, running with the land, prohibiting further division of the parcel and prohibiting use of the land for forest practices, as defined in Title 76, chapter 13, or for residential, commercial, or industrial development.

(d) Uses proposed for the created parcels are not prohibited by local zoning codes.

(e) Uses proposed for the created parcels are consistent with local septic requirements developed pursuant to 50-2-116(1)(i).

(f) The land to be divided under this section is not included in a final subdivision plat on file with the county clerk and recorder.

(3) Parcels created and dedicated under this section must be surveyed by or under the supervision of a registered land surveyor, and the survey must be recorded with the county clerk and recorder pursuant to 76-3-404.

(4) Parcels created under this section must include legal and physical access, which must be delineated on the certificate of survey for that parcel and any instrument of transfer concerning the parcel.

(5) The conservation easement or deed restriction applied pursuant to this section must be delineated and described in the certificate of survey filed for each parcel created or dedicated.

(6) For purposes of this section, the following definitions apply:

(a) "Allowable parcel" means a parcel that has been or may be created from the original tract for conveyance without review under Title 76, chapter 3, and without use of the exemption found in subsection (2).

(b) "Allowable parcel density" means the total number of allowable parcels within the original tract. Parcels permanently dedicated as open space under this section are no longer considered in the calculation of allowable parcel density for the original tract.

(c) "Original tract" means one or more contiguous parcels that may or may not be separated by a road, that are under the same ownership, and that are within the same county.

NEW SECTION. Section 3.  Local governing body review of open-space exemption -- fee. (1) The local governing body shall review the creation of parcels described in [section 2] and certify that the requirements of [section 2] have been satisfied.

(2) The governing body may not deny an exemption unless it provides a written statement to the proponent detailing the circumstances of the exemption denial. The statement must include:

(a) the reason for the denial;

(b) the evidence that justifies the denial; and

(c) information regarding the appeal process for the denial.

(3) The local governing body may charge a fee of up to $50 for each exemption proposal for the services provided under [section 2].

Section 4.  Section 76-4-103, MCA, is amended to read:

"76-4-103.   What constitutes subdivision. A Except for those parcels created under [section 2], a subdivision shall comprise comprises only those parcels of less than 20 acres which that have been created by a division of land, and the plat thereof shall of the subdivision must show all such parcels, whether contiguous or not. The rental or lease of one or more parts of a building, structure, or other improvement, whether existing or proposed, is not a subdivision, as that term is defined in this part, and is not subject to the requirements of this part."

Section 5.  Section 76-3-207, MCA, is amended to read:

"76-3-207.   Subdivisions Divisions 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 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) any division of land pursuant to [section 2] is not an evasion 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."

NEW SECTION. Section 6.  Codification instruction. [Sections 2 and 3] are intended to be codified as an integral part of Title 76, chapter 3, part 2, and the provisions of Title 76, chapter 3, part 2, apply to [sections 2 and 3].

NEW SECTION. Section 7.  Effective date. [This act] is effective July 1, 1997.