SENATE BILL NO. 383
INTRODUCED BY D. HARGROVE
A BILL FOR AN ACT ENTITLED: "AN ACT AUTHORIZING LOCAL GOVERNMENTS WITH GROWTH POLICIES OR MASTER PLANS THAT MEET CERTAIN REQUIREMENTS TO ESTABLISH CLUSTER DEVELOPMENT SUBDIVISION REGULATIONS FOR PROPOSED CLUSTER DEVELOPMENTS IN SPECIFIED GEOGRAPHIC AREAS THAT RECEIVE TRANSFERABLE DEVELOPMENT RIGHTS, SUBJECT TO CERTAIN REQUIREMENTS; EXEMPTING CLUSTER DEVELOPMENTS FROM CERTAIN REQUIREMENTS; AUTHORIZING LOCAL GOVERNMENTS TO GRANT TRANSFERABLE DEVELOPMENT RIGHTS IN EXCHANGE FOR PRESERVATION OF AGRICULTURAL OR OPEN SPACE LAND, SUBJECT TO CERTAIN REQUIREMENTS; AND AMENDING SECTIONS 76-3-102, 76-3-103, 76-3-501, 76-3-504, 76-3-608, AND 76-3-621, MCA."
WHEREAS, agricultural land is increasingly being taken out of production for development and becoming unavailable for agricultural production, open space, or wildlife habitat uses; and
WHEREAS, farmers and ranchers are often forced to sell their land to generate sufficient income to retire; and
WHEREAS, authorizing transferable development rights that can be used for cluster development enables private parties to pay private landowners for the preservation of agricultural or open space land and allows landowners to derive compensation from the land; and
WHEREAS, cluster development can facilitate the preservation of Montana's unique landscape; and
WHEREAS, local governments need mechanisms to encourage development approaches that minimize costs to local citizens and that promote effective and efficient provision of public services; and
WHEREAS, cluster development can reduce local government costs for infrastructure and provision of services by concentrating building sites on smaller lots so that services and utilities can be concentrated in a smaller area; and
WHEREAS, each governing body is best able to determine whether special cluster development subdivision regulations would be beneficial to its community based on considerations such as the local rate of growth or existing zoning with transferable development rights.
THEREFORE, the Legislature finds it appropriate to authorize local governments to establish special cluster development subdivision regulations to promote cluster development in exchange for preservation of agricultural or open space land through the private market transfer of transferable development rights.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Short title. [Sections 6 through 9 and this section] may be cited as the "Agricultural and Open Space Land Preservation and Cluster Development Act".
Section 2. 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) allow cluster development;
(7) promote preservation of agricultural land;
(8) promote preservation of open space land;
(9) promote fiscally responsible growth management;
(6)(10) protect the rights of property owners; and
(7)(11) require uniform monumentation of land subdivisions and transferring interests in real property by reference to a
plat or certificate of survey."
Section 3. 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 following 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) "Cluster development" means a subdivision with parcels clustered in a group of five or more parcels that is designed to concentrate building sites on smaller lots in order to reduce capital and maintenance costs for infrastructure through the use of concentrated public services and utilities and shorter streets, while allowing other lands to remain undeveloped.
(2)(3) "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)(4) "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)(5) "Examining land surveyor" means a registered land surveyor appointed by the governing body to review surveys
and plats submitted for filing.
(5)(6) "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.
(7) "Fiscally responsible" means keeping costs to the public for the effective and efficient provision of public services as low as possible.
(6)(8) "Governing body" means a board of county commissioners or the governing authority of a city or town organized
pursuant to law.
(9) "Growth area" means a geographic area designated in a growth policy and in cluster development subdivision regulations within which proposed cluster developments may receive transferable development rights and may be reviewed pursuant to [section 7].
(10) "Growth policy" means a master plan adopted pursuant to chapter 1 of this title that meets the requirements of [section 6].
(7)(11) "Immediate family" means a spouse, children by blood or adoption, and parents.
(8)(12) "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.
(9)(13) "Planned unit development" means a land development project consisting of residential clusters, industrial parks,
shopping centers, or office building parks that 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.
(10)(14) "Plat" means a graphical representation of a subdivision showing the division of land into lots, parcels, blocks,
streets, alleys, and other divisions and dedications.
(11)(15) "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.
(16) "Preservation area" means a geographic area designated in a growth policy and in cluster development subdivision regulations within which transferable development rights may be granted for preservation of agricultural or open space land pursuant to [section 9].
(12)(17) "Registered land surveyor" means a person licensed in conformance with Title 37, chapter 67, to practice
surveying in the state of Montana.
(13)(18) "Registered professional engineer" means a person licensed in conformance with Title 37, chapter 67, to
practice engineering in the state of Montana.
(14)(19) "Subdivider" means a person who causes land to be subdivided or who proposes a subdivision of land.
(15)(20) "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.
(16)(21) (a) "Tract of record" means 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.
(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) (21)(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, clearly expressing the
owner's intent to effect a merger of parcels.
(22) "Transferable development right" means unused development potential that can be voluntarily transferred from a parcel that is preserved pursuant to [section 9] to a parcel in a growth area."
Section 4. Section 76-3-501, MCA, is amended to read:
"76-3-501. Local subdivision regulations. (1) Before July 1, 1974, the The governing body of every county, city, and
town shall adopt and provide for the enforcement and administration of subdivision regulations reasonably providing for
the orderly development of their jurisdictional areas; for the coordination of roads within subdivided land with other roads,
both existing and planned; for the dedication of land for roadways and for public utility easements; for the improvement of
roads; for the provision of adequate open spaces for travel, light, air, and recreation; for the provision of adequate
transportation, water, and drainage; subject to the provisions of 76-3-511, for the regulation of sanitary facilities; for the
avoidance or minimization of congestion; and for the avoidance of subdivision which would involve unnecessary
environmental degradation and the avoidance of danger of injury to health, safety, or welfare by reason of natural hazard or
the lack of water, drainage, access, transportation, or other public services or would necessitate an excessive expenditure of
public funds for the supply of such the services.
(2) The governing body may also adopt cluster development subdivision regulations, as provided in [sections 7 and 9].
(2)(3) Review and approval or disapproval of a subdivision under this chapter may occur only under those regulations
in effect at the time an application for approval of a preliminary plat or for an extension under 76-3-610 is submitted to the
governing body."
Section 5. Section 76-3-504, MCA, is amended to read:
"76-3-504. Minimum requirements for subdivision regulations. The Except for cluster development subdivision
regulations adopted pursuant to [section 7], the subdivision regulations adopted under this chapter shall must, at a
minimum:
(1) require the subdivider to submit to the governing body an environmental assessment as prescribed in 76-3-603;
(2) establish procedures consistent with this chapter for the submission and review of subdivision plats;
(3) prescribe the form and contents of preliminary plats and the documents to accompany final plats;
(4) provide for the identification of areas that, because of natural or human-caused hazards, are unsuitable for subdivision development and prohibit subdivisions in these areas unless the hazards can be eliminated or overcome by approved construction techniques;
(5) 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 of this title, or determined to be subject to flooding by the governing body;
(6) prescribe standards for:
(a) the design and arrangement of lots, streets, and roads;
(b) grading and drainage;
(c) subject to the provisions of 76-3-511, water supply and sewage and solid waste disposal that, at a minimum, meet the regulations adopted by the department of environmental quality under 76-4-104;
(d) the location and installation of utilities;
(7) provide procedures for the administration of the park and open-space requirements of this chapter;
(8) provide for the review of preliminary plats by affected public utilities and those agencies of local, state, and federal government having a substantial interest in a proposed subdivision. A utility or agency review may not delay the governing body's action on the plat beyond the time limits specified in this chapter, and the failure of any agency to complete a review of a plat may not be a basis for rejection of the plat by the governing body."
NEW SECTION. Section 6. Growth policy required for cluster development subdivision regulations. A governing body may adopt cluster development subdivision regulations if the governing body has adopted a growth policy that:
(1) includes the following elements:
(a) community goals and objectives;
(b) maps and text describing an inventory of the existing characteristics and features of the jurisdictional area, including:
(i) land uses;
(ii) population;
(iii) housing needs;
(iv) economic conditions;
(v) local services;
(vi) public facilities;
(vii) natural resources; and
(viii) other characteristics and features proposed by the planning board and adopted by the governing bodies;
(c) projected trends for the life of the growth policy for each of the following elements:
(i) land uses;
(ii) population;
(iii) housing needs;
(iv) economic conditions;
(v) local services;
(vi) natural resources; and
(vii) other characteristics and features proposed by the planning board and adopted by the governing bodies;
(d) a description of policies, regulations, and other measures to be implemented in order to achieve the community goals and objectives established pursuant to subsection (1)(a);
(e) a strategy for development, maintenance, and replacement of public infrastructure, including drinking water systems, wastewater treatment facilities, sewer systems, solid waste facilities, fire protection facilities, roads, and bridges;
(f) an implementation strategy that includes:
(i) a timetable for implementing the growth policy;
(ii) a list of conditions that will lead to a revision of the growth policy; and
(iii) a timetable for reviewing the growth policy at least once every 5 years and revising the policy if necessary;
(g) a statement of how the governing bodies will coordinate and cooperate with other jurisdictions that explains:
(i) if a governing body is a city or town, how the governing body will coordinate and cooperate with the county in which the city or town is located on matters related to the growth policy;
(ii) if a governing body is a county, how the governing body will coordinate and cooperate with cities and towns located within the county's boundaries on matters related to the growth policy;
(h) a statement explaining how the governing bodies will:
(i) define the criteria in 76-3-608(3)(a); and
(ii) evaluate and make decisions regarding proposed subdivisions with respect to the criteria in 76-3-608(3)(a); and
(i) a statement explaining how public hearings regarding proposed subdivisions will be conducted;
(2) includes fiscally responsible growth management strategies to address the rate, amount, location, timing or type of growth;
(3) identifies preservation of agricultural or open space land or both;
(4) identifies preservation areas and appropriate density levels for those areas; and
(5) identifies growth areas and appropriate density levels for those areas.
NEW SECTION. Section 7. Cluster development subdivision regulations for cluster developments with transferable development rights. (1) A governing body that has adopted a growth policy that meets the requirements of [section 6] may adopt cluster development subdivision regulations.
(2) Cluster development subdivision regulations must:
(a) identify growth areas that are consistent with the growth policy;
(b) require that cluster developments to be reviewed under this section be located within growth areas. The governing body may not require that proposed subdivisions located within growth areas be reviewed under cluster development subdivision regulations adopted pursuant to this section.
(c) require that each parcel created has received a transferable development right pursuant to [section 9];
(d) establish a maximum size of 1.25 acres for each parcel created, except when a larger size is required by the department of environmental quality pursuant to chapter 4 of this title or the local board of health pursuant to 50-2-116;
(e) require that each created parcel be approved by the local department or board of health or the department of environmental quality as required by chapter 4 of this title;
(f) establish minimum public health and safety standards for public road access, public road maintenance, and fire protection;
(g) require the cluster development to comply with the adopted growth policy, including any policies in the growth policy that restrict development within prime farmland or critical wildlife habitat;
(h) establish administrative procedures consistent with this chapter for the submission and review of subdivision plats; and
(i) establish procedures for granting and administration of transferable development rights as provided in [section 9].
(3) Cluster development subdivision regulations may:
(a) establish a fee for review of proposed cluster developments under this section; or
(b) establish additional requirements to fulfill the purposes provided in 76-3-501.
(4) A cluster development must comply with applicable local regulations including but not limited to:
(a) zoning regulations including transfer of development rights programs adopted pursuant to chapter 2 of this title;
(b) health regulations adopted pursuant to 50-2-116; and
(c) floodplain regulations adopted pursuant to chapter 5.
NEW SECTION. Section 8. Cluster developments with transferable development rights -- exemptions. A proposed cluster development reviewed under this section is exempt from:
(1) the requirements of an environmental assessment pursuant to 76-3-603;
(2) review of the criteria in 76-3-608(3)(a);
(3) park dedication requirements pursuant to 76-3-621; and
(4) except for impact fees for payment of the extension of capital facilities as provided in 76-3-510, impact fees adopted by the governing body.
NEW SECTION. Section 9. Transferable development rights for preservation of agricultural or open space land -- local regulations. (1) Cluster development subdivision regulations must:
(a) identify preservation areas consistent with the adopted growth policy;
(b) establish criteria for the number of transferable development rights that may be granted in exchange for preservation of agricultural or open space land;
(c) establish procedures for recording transferable development rights; and
(d) require that a parcel to be preserved in exchange for a transferable development right meet the following requirements:
(i) the parcel must be located within a preservation area;
(ii) the parcel must comply with the adopted growth policy;
(iii) the parcel must contain at least 40 contiguous acres of agricultural or open space land;
(iv) the parcel may not contain more than one existing dwelling unit;
(v) except for residential use as provided in subsection (1)(d)(iv), use of the parcel has been restricted to agriculture or open space;
(vi) the owner of the parcel shall grant a conservation easement either in perpetuity or for a period of years, as provided for in chapter 6, part 2, of this title that prohibits further division of the parcel and use of the land for additional residential, commercial, or industrial use; and
(vii) the parcel 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 unless the parcel is an existing surveyed tract of record.
(2) Cluster development subdivision regulations may:
(a) establish a fee for administration of the transfer of a transferable development right; or
(b) establish criteria and procedures for transfer of a transferable development right between jurisdictions through an interlocal agreement.
Section 10. 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 disapprove a subdivision is whether the preliminary plat, applicable environmental assessment, public hearing, planning board recommendations, or additional information demonstrates that development of the subdivision meets the requirements of this chapter. A governing body may not deny approval of a subdivision based solely on the subdivision's impacts on educational services.
(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 as provided in [section 8], the effect on agriculture, agricultural water user facilities, local services, the natural environment, wildlife and 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 for the location and installation of any planned utilities; and
(d) the provision of legal and physical access to each parcel within the 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 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 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 plat.
(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) When a minor subdivision is proposed in an area where a master plan has been adopted pursuant to chapter 1 and the proposed subdivision will comply with the plan, the subdivision is exempt from the review criteria contained in subsection (3)(a) but is subject to applicable zoning regulations.
(b) In order for a master plan to serve as the basis for the exemption provided by this subsection (6), the plan must, at a minimum, contain:
(i) housing, transportation, and land-use elements sufficient for the governing body to protect public health, safety, and welfare; and
(ii) a discussion of physical constraints on development that exist within the area encompassed by the proposed subdivision."
Section 11. Section 76-3-621, MCA, is amended to read:
"76-3-621. Park dedication requirement. (1) Except as provided in [section 8] or subsections (2), (3), and (6) of this section, a subdivider shall dedicate to the governing body a cash or land donation equal to:
(a) 11% of the area of the land proposed to be subdivided into parcels of one-half acre or smaller;
(b) 7.5% of the area of the land proposed to be subdivided into parcels larger than one-half acre and not larger than 1 acre;
(c) 5% of the area of the land proposed to be subdivided into parcels larger than 1 acre and not larger than 3 acres; and
(d) 2.5% of the area of the land proposed to be subdivided into parcels larger than 3 acres and not larger than 5 acres.
(2) When a subdivision is located totally within an area for which density requirements have been adopted pursuant to a
master plan under Title 76, chapter 1, of this title or pursuant to zoning regulations under Title 76, chapter 2, of this title the
governing body may establish park dedication requirements based on the community need for parks and the development
densities identified in the plans or regulations. Park dedication requirements established under this subsection are in lieu of
those provided in subsection (1) and may not exceed 0.03 acres per dwelling unit.
(3) A park dedication may not be required for:
(a) a minor subdivision;
(b) land proposed for subdivision into parcels larger than 5 acres;
(c) subdivision into parcels that are all nonresidential;
(d) a subdivision in which parcels are not created, except when that subdivision provides permanent multiple spaces for recreational camping vehicles, mobile homes, or condominiums; or
(e) a subdivision in which only one additional parcel is created.
(4) The governing body, in consultation with the subdivider and the planning board or park board that has jurisdiction, may determine suitable locations for parks and playgrounds and, giving due weight and consideration to the expressed preference of the subdivider, may determine whether the park dedication must be a land donation, cash donation, or a combination of both. When a combination of land donation and cash donation is required, the cash donation may not exceed the proportional amount not covered by the land donation.
(5) (a) In accordance with the provisions of subsections (5)(b) and (5)(c), the governing body shall use the dedicated money or land for development, acquisition, or maintenance of parks to serve the subdivision.
(b) The governing body may use the dedicated money to acquire, develop, or maintain, within its jurisdiction, parks or recreational areas or for the purchase of public open space or conservation easements only if:
(i) the park, recreational area, open space, or conservation easement is within a reasonably close proximity to the proposed subdivision; and
(ii) the governing body has formally adopted a park plan that establishes the needs and procedures for use of the money.
(c) The governing body may not use more than 50% of the dedicated money for park maintenance.
(6) The local governing body shall waive the park dedication requirement if:
(a) (i) the preliminary plat provides for a planned unit development or other development with land permanently set aside for park and recreational uses sufficient to meet the needs of the persons who will ultimately reside in the development; and
(ii) the area of the land and any improvements set aside for park and recreational purposes equals or exceeds the area of the dedication required under subsection (1);
(b) (i) the preliminary plat provides long-term protection of critical wildlife habitat; cultural, historical, or natural resources; agricultural interests; or aesthetic values; and
(ii) the area of the land proposed to be subdivided, by virtue of providing long-term protection provided for in subsection (6)(b)(i), is reduced by an amount equal to or exceeding the area of the dedication required under subsection (1); or
(c) the area of the land proposed to be subdivided, by virtue of a combination of the provisions of subsections (6)(a) and (6)(b), is reduced by an amount equal to or exceeding the area of the dedication required under subsection (1).
(7) For the purposes of this section:
(a) "cash donation" is the fair market value of the unsubdivided, unimproved land; and
(b) "dwelling unit" means a residential structure in which a person or persons reside."
NEW SECTION. Section 12. Codification instruction. [Sections 1 and 6 through 9] are intended to be codified as an integral part of Title 76, chapter 3, part 5, and the provisions of Title 76, chapter 3, part 5, apply to [sections 1 and 6 through 9].
NEW SECTION. Section 13. Coordination instruction. (1) If Senate Bill No. 97 is passed and approved and if it amends 76-1-103 by striking "master plan" and adding "growth policy", then [section 3(10) of this act] is void.
(2) If Senate Bill No. 97 is passed and approved and if it amends 76-1-601, then [section 6(1) of this act] is void.
- END -
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