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January 13, 2012

Bullock Clarifies Subdivision Review Laws

Attorney General Steve Bullock on Friday ruled that Montana’s subdivision review law applies to all potential uses, not just residential uses.  The opinion also concluded that an exemption from review for the sale, rent or lease of multiple parts of a building applies only to a single building, not to multiple buildings.

Missoula County Attorney Fred Van Valkenburg requested the opinion to resolve differing interpretations that had surfaced between Missoula County and the City of Missoula, both of which advise a joint planning board.

In his letter requesting a formal opinion, Van Valkenburg asked whether the definition of “subdivision” and the related local review requirements are limited to divisions of land on which residential dwellings are planned.  He also questioned whether multiple buildings on a single parcel of land are exempt from subdivision review.

The opinion’s conclusions were based on the language and legislative intent of the Montana Subdivision and Platting Act, which generally requires local review and approval of all subdivisions.

Since that Act does not specifically exempt subdivisions for non-residential purposes, or use the term “residential,” or directly speak to the uses the divided land will be put to, the opinion concludes that a subdivision under the Act is “not limited to divisions of land intended to be ‘residential dwellings.’”

Montana’s Subdivision Act does exempt from review the “sale, rent, lease, or other conveyance of one or more parts of a building, structure, or other improvement.”  The opinion concludes that this exemption applies only to one building based on the plain language and legislative history of the exemption.  To interpret the statute as exempting from review multiple buildings would undermine the legislature’s intent in passing the Subdivision Act.  In a related opinion issued in 1985, Attorney General Greely observed that the construction of 48 four-plexes would be a housing development that would “inevitably result in various social and economic impacts on the community” representing “the precise type of development which the Legislature intended should be submitted for local review under the Act.”

Rather than undercutting the intent of the Act by creating a sizeable loophole in local subdivision review, Bullock’s opinion, like prior district court opinions from Ravalli and Lewis and Clark counties, concluded that the exemption applies only to a single building on a single tract.

Friday’s opinion, which was delayed pending court and possible legislative action, reverses an unofficial letter of advice issued by the Attorney General’s office in 1995.  Opinions of the attorney general carry the weight of law unless a court overturns them or the legislature modifies the laws involved.