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SB 40, Generally revising provisions governing subdivision review– 76-3-604 and 76-3-615

Posted Date: 
January 16, 2013
Tara DePuy, MACo JPIA Land Use Attorney

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UPDATE -- March 19, 2013 -- SB 40 was amended in the Senate Local Government Committee to simplify the bill and remove the section stating that mitigation information could never be considered new information pursuant to 76-3-608.  The bill now states that a subdivision application is deemed submitted on the date delivered to the reviewing agent or agency.  It went through Executive Action on March 7 and passed onto the House Floor on March 11 as amended, where it concurred on Second Reading, 99-1, and again on Third Reading, 94-3.  It returned to the Senate on March 13, where the House amendments concurred on Second Reading, 44-1, and again on Third Reading, 38-11.  It was enrolled on March 19.


PREVIOUS POST -- January 16, 2013 -- This is a Montana Association of Realtor’s bill and was a portion of HB 542 that passed the 2011 legislature and was vetoed by the Governor.  MACo opposed the bill in 2011.  Changes to 76-3-604 Review of Subdivision Application - Review for Required Elements and Sufficiency.   Adds another meeting between subdivider and planning staff when subdivision application is submitted which must be held within 10 working days of the written request.  This may be unreasonable in counties with contract planner or counties with a lot of subdivision activity.  If the planner fails to schedule the subdivision application presentation meeting, then the subdivision application is considered to be received on the date of delivery.  While this is a new provision in the bill, this is how the process works now except that the subdivider either just drops off the application or mails the application.  Also, Section 76-3-504(3) allows counties to determine on an individual basis deadlines for submittal of subdivision applications.

Section 76-3-615 Subsequent Hearings- New Information.  Information pertaining to mitigation of "potentially" significant adverse impacts by the subdivider may not be considered new information that may require a subsequent public hearing.  This new section in the bill may be unconstitutional as a violation of the public's right to know and participate.  If proposed mitigation is new information and meets the requirements for new information that requires a subsequent public hearing, an absolute prohibition on a subsequent hearing to be held by the county may lead to litigation.

This bill was sponsored by Senator Ed Buttrey.  The sponsor of the bill stated that there has been ambiguity across the state as to when a subdivision application is received; in some counties it is when the application hits the door of the planning office, in others it is when the subdivision application hits the desk of the reviewing agent and other counties have to accept the subdivision application.  Senator Buttrey offered an amendment to this portion of the bill which states that the ten days within which a county would have to hold a meeting for the submission of a subdivision application could be extended by mutual agreement of the county and subdivider.  In regards to new information, the sponsor stated in the past subdivider offered mitigation has been considered as new information requiring the review process to be stopped so another public hearing can be held. 

The bill was proposed by the Montana Association of Realtors who spoke in favor of the bill and testified that at the submission hearing there would be discussion about the subdivision application although this is not required in the bill and that by having the requirement that subdivider offered mitigation could never be considered new information, undue delay for subdivision approval would be prevented.  The bill was supported by a realtor/developer from Billings, a realtor from Ravalli County, the Montana Building Industry, the Montana Association of Registered Land Surveyors and the Missoula Realtors Association. 

The bill was opposed by the Montana County Attorney’s Association who offered that perhaps there could be a distinction for a  written submission meeting by differentiating between minor and major subdivisions and testified that the requirement that subdivider offered mitigation could never be considered new information may be unconstitutional.  The Montana Association of Planners offered written testimony.  MACo testified in opposition to the requirement for a subdivision application meeting that doesn’t require any dialogue between the planning office and the subdivider and suggested that an amendment could be made to define that a subdivision application is deemed submitted when it hits the door of the planning office.  MACo also testified that thwarting public comment on subdivider offered mitigation if it is new information may lead to litigation against counties for violating the public’s right to participate in government.  The MEIC opposed the bill and provided the history of the changes to subdivider mitigation provisions in the Montana Subdivision and Platting Act in the 2003 session due to a lawsuit in Ravalli County.  Smart Growth opposed the bill and gave examples of what may be subdivider offered mitigation that would be new information.  The City of Missoula opposed the bill and provided amendatory language regarding the submission of subdivision applications.  The Montana Farmers Union also opposed on the basis that subdivider offered mitigation may be new information that affects agriculture and public comment should be allowed.  The Montana Audubon opposed the bill and handed out written testimony and Lewis and Clark County opposed the bill as well.

Questions from the committee centered on the process for submission of a subdivision application and the following review process as well as the process for public comment for new information. 

MACo is working on amendments to this bill.

Additional Information: 
  • Heard before Senate Local Government on January 16, 2013.
  • Heard before House Local Government on March 5, 2013.
Tara DePuy | 406.223.1803 |