By Michael Howell
A revised set of subdivision regulations was adopted by the County Commissioners last week and will become effective on May 14, 2012.
County Attorney Bill Fulbright submitted a memo to the county commissioners concerning three proposed amendments to the existing subdivision regulations that were singled out by the Planning Department for legal review. These included comments on proposed changes to Subdivisions for Lease or Rent, and the definitions of “platted subdivision” and “undue hardship.”
Fulbright notes in his memo that the Ravalli County Subdivision Regulations currently in effect provide an alternative to full subdivision review when a second building with sanitary facilities is proposed. That process is a planning department administrative review of the proposed addition, made under certain defined review criteria (Chapter 3, Subpart 5-2). By contrast, the proposed amendment instead shifts the focus to a limitation on the owner’s ability to rent, lease or convey the second building, by requiring a covenant prohibiting such a transfer.
“A review of Montana court cases shows that the proposed amendment addresses the common element found in every Montana court decision to be found on this subject. That is, in each published decision the courts have considered the question of whether the proposed structure must undergo subdivision review where the new proposed structure(s) will actually be rented or leased,” the memo states. He concludes that by requiring a covenant the regulation prohibits any future rent, lease or sale and addresses the court’s concerns.
“The proposed amendment places a legal limit on the owner’s ability to thereafter sell, lease or rent the second structure, a reasonable measure to limit the impact of an accessory building,” he wrote.
In response to concerns that a covenant may not be enforceable, Fulbright states, “The BCC has regulatory enforcement authority and the resources to carry out enforcement if necessary. While a legitimate topic to consider and for which to plan, the enforcement process does not undermine the validity of the proposed amendment.”
Fulbright advised against amending the definition of a “platted subdivision” to include any date. His opinion was based on the statutory definitions of “plat” and “subdivision.”
The draft definition for a Platted Subdivision in the new regulations is “Plats of record created through subdivision review as of July 1, 1974.”
Fulbright notes, “By way of history, the Montana Subdivision and Platting Act (MSPA) became effective July 1, 1974. The treatment of parcels of land pre-dating this effective date has long been the subject of debate. No less than six Attorney General Opinions, and various Supreme Court cases, have wrestled with the relationship between the MSPA and plats or tracts of land that were created by whatever name prior to July 1, 1974.”
He states that the Montana Supreme Court has definitively answered the broader question, “finding that the MSPA applies to acts now taken on parcel(s) of land, regardless of when the parcel(s) were created. However, once having determined that actions taken on the pre-existing tracts are subject to the MSPA, the BCC must then determine whether the applicant’s particular project fits within a statutory exemption from subdivision review. It is this second step that is affected by the definition of “platted subdivision.”
Fulbright argues that you cannot change the separate definitions in the statute of “plat” and “subdivision” by creating a definition for “platted subdivision” in county regulations that doesn’t fit.
“Where the MSPA specifically provides definitions for ‘plat’ and ‘subdivision,’ an attempt to artificially limit or modify the term ‘platted subdivision’ to a specific time period will likely be struck down as void,” he wrote.
He does offer an option: “While probably not capturing the entire purpose of the BCC’s intent with the propose amendment, the definition of ‘platted subdivision’ could be appropriately clarified by language such as ‘PLATTED SUBDIVISION: Plats of record created by approval of the local regulatory body in authority on the date of recording and in full compliance with then existing law’. Given the current state statutes, we cannot recommend any broader restriction to this definition.”
Fulbright also criticizes the proposed amendment to the definition of “undue hardship” and offers his own alternative.
After reviewing the criteria outlined in the regulations for a variance request, Fulbright states, “You can see that the proposed regulations set out the criteria (#3a-b) defining when an undue hardship is present. Accordingly, in light of these regulatory criteria, the proposed amendment is conceptually difficult and awkward to apply to the variance process because the proposed definition of ‘undue hardship’ is not consistent with the above criteria that already define when an undue hardship is present.
“If the proposed amendment is an indication that the BCC is dissatisfied with the two undue hardship criteria in 15-2(D)(2) as a working definition of ‘undue hardship,’ then we recommend that an appropriate modification be made to the criteria themselves, not an extraneous definition. The criteria, and therefore the working definition of ‘undue hardship,’ could be best shaped by the BCC clearly defining its policy objectives in allowing a variance.”
He goes on to outline a possible set of criteria.
Fulbright also notes that the language in the regulation does not directly address, upon finding an undue hardship is present, whether the BCC must then grant the variance, or still retains some sort of defined discretion to grant or deny the variance.
“It would be best to specifically state the intent of 15-2(D)(2), rather than leaving it for later argument and disagreement,” he states.
The commissioners incorporated the county attorney’s advice into the document.
Kelsey Milner of Bitterrooters for Planning complimented the regulation changes for the most part but lamented the fact that “cumulative effects” were not addressed. He said it was a serious issue and should be addressed in the regulations.
Commissioner Greg Chilcott said that every attorney and organization consulted has always cautioned that the issue is a legal hornet’s nest.
Commissioner Matt Kanenwisher said he would find it hard to deny a property owner an action because of what some unknown number of people might or might not do in the future.
The revised regulations were approved unanimously and will go into effect May 14, 2012.