City of Belgrade Subdivision Regulations - SECTION 14: SUBDIVISION EXEMPTIONS

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SECTION 14: SUBDIVISION EXEMPTIONS

Purpose
Procedures and General Requirements
Exemptions as a Gift or Sale to a Member of the Immediate Family
Agricultural Exemption
Relocation of Common Boundary Lines
Aggregation of Lots and/or Relocation of Common Boundaries within a Platted Subdivision
Security for Construction Financing
Court Order
Correction of Errors
Uniform Standards for Certificates of Survey

Purpose.

The state of Montana provides that certain divisions of land, which would otherwise constitute subdivisions, are exempt from local subdivision review and approval, unless the transactions are an attempt to evade the Act, Section 76-3-101 et. seq. MCA.

The following procedures, criteria and requirements shall be used to review an exemption from subdivision review and to determine whether the division of land is for the purpose of evading the Act.
Procedures and General Requirements.
1. The Council designates the Planning Department as its agent for purposes of these Regulations. All certificates of survey claiming an exemption shall be submitted to the Planning Department. The procedures and requirements of these Regulations are limited to the exemptions specified in these Regulations.
2. A claimant seeking an exemption under the Act and these Regulations shall submit a claim on the appropriate application form, including a signed certificate of exemption, together with evidence to support the claim and any other information required by these Regulations to the planning department. Four paper copies of the certificate of survey shall be submitted with the claim and shall be folded to fit in a standard eight and a half to nine by eleven (8½” to 9” x 11”) or eight and a half to nine by fourteen (8½” to 9” x 14”) folder.
3. If a hearing is required, the claimant or the claimant's representative shall be notified of the date and time of the hearing provided for in these Regulations.
4. The Planning Department, the Clerk and Recorder, and the City Attorney’s Office shall review the claimed exemption. The Planning Department shall make a report to the City Manager who may approve exemptions on behalf of the Council (City). The claimant and/or the City Manager may request that the exemption be reviewed by the Council at a regularly scheduled Council meeting.
5. The City shall allow or disallow the exemption within 30 days of its submission to the Planning Department unless the claimant has requested an extension in which case this time limit shall not apply.
6. Where a rebuttable presumption is declared in these Regulations, the presumption may be overcome by the claimant with evidence contrary to the presumption. If the City concludes that the evidence overcomes the presumption and that from all the circumstances the exemption is justified, the City will allow the exemption. On the other hand, if the City concludes that the presumption is not overcome and that from all the circumstances the exemption is not justified, the City will disallow the exemption.
7. In assessing the claimant's purpose the City will evaluate all relevant circumstances including the nature of the claimant's business, the prior history of the particular tract in question and the proposed configuration of the tract if the proposed exempt transactions are completed.
8. If the exemption is allowed, the City shall so certify in a printed certificate on the certificate of survey.
9. If the exemption is disallowed, the City shall provide written notification of its decision to the person claiming the exemption and the Clerk and Recorder.
10. A certificate of survey of a division of land which is exempted from review may not be filed by the Clerk and Recorder unless it bears the certificate of the person having a recorded interest claiming the exemption stating that the division of land is exempted from review as a subdivision and citing the applicable exemption.
11. Each newly created parcel less than 160 acres shall have a certificate of exemption.
12. These Regulations shall not be applicable to deeds, contracts, leases or other conveyances executed prior to July 1, 1974.
13. An exemption may not be made under this section, except for Security for Construction Financing and Court Orders, unless the Treasurer has certified that all real property taxes and special assessments assessed and levied on the land to be divided have been paid.
Exemptions as a Gift or Sale to a Member of the Immediate Family.
1. A member of the immediate family is the spouse of the grantor, or, whether by blood or adoption, a son, daughter, mother, or father of the grantor.
2. The proper use of the exemption as a gift or sale to a member of the immediate family is to convey one parcel of land outside of a platted subdivision to each member of the landowner's family, providing that the use of the exemption creates no more than one additional parcel of less than 160 acres in size. The parcel involved in the division must be outside of a platted subdivision. Each exemption under this Section will be reviewed by the City under these Regulations.
3. A certificate of survey for a family transfer may include more than one exempt parcel providing all parcels meet the criteria of this Section.
4. Certificates of survey showing the creation of new parcels of land pursuant to this exemption as a gift or sale to a member of the immediate family must be accompanied by a copy of the deed transferring interest in the parcel being created or a statement detailing where the deed is in escrow, how long it will be in escrow and authorization to contact the escrow agent for verification.
5. The City makes a rebuttable presumption that a family transfer is adopted for the purpose of evading the Act if it is determined that one or more of the following conditions exist:
  1. The exempted parcel would leave more than one additional parcel of less than 160 acres.
  2. The member of the landowner’s immediate family would have received more than one exempted parcel in Gallatin County.
Agricultural Exemption.
1. An agricultural exemption is a division of land made outside of a platted subdivision by gift, sale or agreement to buy and sell in which the parties to the transaction enter a covenant running with the land, revocable only by mutual consent of the City and the transferee/property owner, that the divided land will be used exclusively for agricultural purposes. No building or structure requiring water or sewer facilities shall be utilized on such a parcel. The parcel involved in the division must be outside of a platted subdivision.
  1. A change in use of the land for anything other than agricultural purposes subjects the division to these Regulations.
Relocation of Common Boundary Lines.
1. The proper use of the exemption for relocating common boundary lines is to:
  1. Establish a new boundary between adjoining parcels of land, without creating an additional parcel; or
  2. Establish a new 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. A Certificate of Survey for the relocation of common boundary lines may include five or fewer parcels and/or lots.
3. Certificates of Survey showing the relocation of common boundary lines must be accompanied by:
  1. A deed(s) exchanging recorded interest from every person having a recorded interest in adjoining properties for the entire newly-described parcel(s) that are acquiring additional land; and
  2. Documentation showing the need or reason for the relocation (for example: structure encroachment, surveyor error or enhancement of the configuration of the property).
4. The City makes a rebuttable presumption that a proposed relocation of common boundary lines is adopted for the purpose of evading the Act, if:
  1. The City determines that the documentation submitted according to this section does not support the stated reason for relocation or created an additional parcel.
Aggregation of Lots and/or Relocation of Common Boundaries within a Platted Subdivision.
1. The proper use of the exemption for aggregation of lots and/or relocation of common boundaries is to rearrange and/or aggregate five or fewer lots within a platted subdivision and does not increase the total number of lots. The plat shall contain the title “Amended Plat” and must be filed with Clerk and Recorder.
2. The Amended Plat showing the aggregation of lots and/or relocation of common boundary within a platted subdivision must be accompanied by:
  1. A deed(s) exchanging recorded interest from every person having a recorded interest in adjoining properties for the entire newly-described parcel(s) that are acquiring additional land; and
  2. Documentation showing the need or reason for the relocation (for example: structure encroachment, surveyor error or enhancement of the configuration of the property).
3. The City makes a rebuttable presumption that a proposed aggregation of lots and/or relocation of common boundaries within a platted subdivision is adopted for the purpose of evading the Act if it determines that six or more lots are affected by the proposal.
4. Any division of lots which 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 Council prior to the filing of the final plat.
Security for Construction Financing.
1. The proper use of the exemption is to provide security for construction mortgages, liens, or trust indentures, when a survey of the parcel has been required.
2. The City makes a rebuttable presumption that a division of land that is created to provide security is adopted for the purpose of evading the Act under the following conditions:
  1. If the division of land is created for the purpose of conveyance; or
  2. The financing is for construction on land other than on the exempted parcel.
3. When the security for construction financing exemption is to be used, the landowner shall submit, in addition to such other documents as may be required, a written statement explaining:
  1. How many parcels within the original tract will be created by use of the exemption.
  2. Who will have title to and possession of the remainder of the original parcel.
  3. A signed and notarized statement from a lending institution that the creation of the exempted parcel is necessary to secure a construction loan for buildings or other improvements on the parcel.
4. The written statement and the instruments creating the security shall be filed at the same time with the Clerk and Recorder.
Court Order.
1. The proper use of this exemption is when the division of land is created by order of any court of record in this state or by operation of law or which, in the absence of agreement between the parties to the sale, could be created by an order of any court in this state pursuant to the law of eminent domain, when a survey of the parcel has been required.
Correction of Errors. Corrections of errors may be made by the submission of a corrected certificate of survey for the City’s approval.
Uniform Standards for Certificate of Survey. A certificate of survey may not be filed by the Clerk and Recorder unless it complies with the following requirements:
1. Certificates of survey shall be legibly drawn with permanent ink or printed or reproduced by a process guaranteeing a permanent record and shall be eighteen inches (18”) by twenty-four inches (24”) overall to include a one and a half inch (1½”) margin on the binding side.
2. One signed cloth-backed or opaque mylar copy and one signed reproducible copy on a stable base polyester film or equivalent, and one digital copy of the survey on a three and one-half inch (3½”) DS/DD disk shall be submitted.
3. Whenever more than one sheet must be used to accurately portray the land subdivided, each sheet must show the number of that sheet and the total number of sheets included. All certification shall be shown or referenced on one sheet.
4. The certificate of survey shall show or contain on its face or on separate sheets referenced on its face the following information only:
  1. A title block including the quarter section, section, township, range, principal meridian and county of the surveyed land. Space shall be provided on the certificate of survey for Clerk and Recorder’s filing information. A certificate of survey shall not bear the title “plat,” “subdivision,” or any other title other than “Certificate of Survey.”
  2. Name(s) of the owner(s) of the land surveyed and the names of any adjoining platted subdivisions and numbers of any adjoining certificates of survey previously recorded and ties thereto.
  3. Date survey was completed and a brief description of why certificate of survey was prepared, such as creation of a new parcel, retracement of section line, retracement of existing tract of land.
  4. North point.
  5. Scale bar (scale shall be sufficient to legibly represent the required data on the certificate of survey submitted for filing).
  6. All monuments found, set, reset, replaced or removed describing their kind, size, location and giving other data related thereto.
  7. The location of any corners of sections or divisions of sections pertinent to the survey.
  8. Witness monuments, basis of bearing, bearings and length of lines.
  9. The bearings, distances and curve data of all perimeter boundary lines shall be indicated. When the parcel surveyed is bounded by an irregular shoreline or a body of water, the bearings and distances of a meander traverse shall be given.
  10. Data on all curves sufficient to enable the re-establishment of the curves on the ground. These data shall include:
    
    (1) Radius of curve.
    (2) Arc length.
    (3) Notation of non-tangent curves.
  11. Lengths of all lines shown to at least tenths of a foot, and all angles and bearings shown to at least the nearest minute.
  12. A legal description of the perimeter boundary of the tract surveyed.
  13. All parcels created by the survey, designated by number or letter, and the dimensions and area of each parcel. (Excepted parcels shall be marked “Not included in this survey”.)
  14. The signature and seal of the registered land surveyor responsible for the survey. The affixing of his seal constitutes a certification by the surveyor that the certificate of survey has been prepared in conformance with the Act (sections 76-3-101 through 76-3-625, MCA) and the regulations adopted pursuant thereto.
  15. Memorandum of oaths administered pursuant to Section 76-3-405, MCA..
5. Procedures for divisions of land exempted from public review as a subdivision. Certificates of survey for divisions of land meeting the criteria set out in Section 76-3-207, MCA, must meet the following requirements:
  1. Certificates of survey of a division of land which would otherwise be a subdivision but which is exempted from public review under Section 76-3-207, MCA, may not be filed by the Clerk and Recorder unless it bears the acknowledged certificate of the property owner stating that the division of land in question is exempted from review as a subdivision and citing the applicable exemption.
  2. Where the exemption relied upon requires that the property owner enter into a covenant running with the land, the certificate of survey may not be filed unless it bears a signed and acknowledged copy of the covenant.
  3. For an exemption as a gift or sale to a member of the immediate family, the certificate of survey must also indicate the name of the grantee, the relationship of the grantee to the landowner, and the parcel to be conveyed to the grantee.
  4. For an exemption as a relocation of a common boundary line, the certificate of survey must bear the signatures of all landowners whose parcels are changed by the relocation. The certificate of survey must show that the exemption was used only to change the location of a boundary line dividing two parcels, and must clearly distinguish the prior boundary location (shown, for example, by a dashed or broken line or a notation) from the new boundary (shown, for example, by a solid line or notation).
6. Procedures for filing certificates of survey of divisions of land entirely exempted from the requirements of the Act. The divisions of land described in sections 76-3-201, 76-3-205, and 76-3-209, MCA, are not required to be surveyed nor must a certificate of survey or subdivision plat thereof be filed with the Clerk and Recorder. A certificate of survey of such a division may, however, be filed with the Clerk and Recorder if it meets the requirements for form and content for certificates contained in this Section and bears a certificate of the surveyor performing the survey stating the applicable exemption from the Act.