Re amendments of 2-19-2011: For the most part I think this is much better, and relatively easy to apply. I'll leave policy comments to others. I have one legal concern about this language: the last line exempts out structures "related to a single agricultural operation." However, 76-3-201(1)(f) already more broadly exempts a division of land that "is created by lease or rental for farming and agricultural purposes". The last line of HB494, as amended, could be read to limit the exemption for ag leases to only where all part of one ag operation. I don't think that's the likely intent, and I'm not sure that's the interpretation I would give if passed, but the inclusion of this language seems misguided. I recommend deleting that last line and just leave it to the broader exemption for ag leases already stated at 76-3-201(1)(f).
Some follow-up comments after I've mulled this over a bit.
The exemption spelled out in the bill is limited in scope to areas where zoned, or only to the following in unzoned areas: -- SLR expressly contemplated in subdivision approval -- residential subdivisions for lease or rent of "a single dwelling structure and accessory structures of not more than four additional dwellings" (what exactly does this mean? see more discussion below) -- storage units -- multiple buildings or improvements for a single agricultural operation.
This exemption would NOT apply to allow multiple commercial buildings (other than storage units), nor would it apply to mixed residential and commercial uses on one parcel (such as a residence and separate commercial garage, or residence and separate storage units).
The bill also still does away with the current exemption for rent or lease of multiple parts of a single building. Thus, except where the stated exemptions apply, rent or lease of multiple parts of a building would require subdivision review. Examples: office buildings and apartment buildings in unzoned areas will be required to undergo subdivision review.
I am also concerned about the language "accessory structures" in the context of the exemption for up to four additional dwellings. This "accessory" language indicates an intent to limit usage to activities directly related to use of the main dwelling, such as for family members or unpaid guests. As such, this language does not appear to allow non-accessory uses such as commercial rent or lease to unrelated third parties. Accordingly, the language of the bill still does not allow commercial guest ranches without subdivision review (examples: Skalkaho Lodge, Dunrovin Ranch/Millers).
I previously prepared a Memorandum dated 2-18-2011 with my thoughts on other means to potentially amend the bill which may help avoid some of these presumably unintended gaps and consequences.
The Governors amendments to HB 494 do little to make the bill better and, in fact, add more confusion to the issue of subdivisions for lease or rent. Passage of this bill with the Governors amendments is very likely to lead to a variety of interpretations which will lead to more requests for AG opinions and possibly more litigation. Missoula County respectfully requests that you DO NOT CONCUR in the Governors amendments to HB 494. Respectfully, Dale Bickell on behalf of the Board of County Commissioners
The Governor’s amendments to HB 494 do little to make the bill better and, in fact, add more confusion to the issue of subdivisions for lease or rent. Passage of this bill with the Governor’s amendments is very likely to lead to a variety of interpretations which will lead to more requests for AG opinions and possibly more litigation. Missoula County respectfully requests that you DO NOT CONCUR in the Governor’s amendments to HB 494. Respectfully, Dale Bickell on behalf of the Board of County Commissioners
Please communicate the following message to the Governor regarding House Bill 494.
Missoula County opposes HB 494 - Revise laws relating to subdivision exemptions. HB 494 would allow multiple single family residences, multiple multi-family units, resorts, apartments, condos, etc., as along as the land under the buildings was not sold. Furthermore, we are concerned that each development's land base could be sold after being brought in for subdivision review and approval because there would be no new impacts from the subdivision itself to warrant conditions or a denial. Please veto HB 494.
Respectfully on behalf of the Board of County Commissioners,
Re amendments of 2-19-2011:
ReplyDeleteFor the most part I think this is much better, and relatively easy to apply. I'll leave policy comments to others.
I have one legal concern about this language: the last line exempts out structures "related to a single agricultural operation." However, 76-3-201(1)(f) already more broadly exempts a division of land that "is created by lease or rental for farming and agricultural purposes". The last line of HB494, as amended, could be read to limit the exemption for ag leases to only where all part of one ag operation. I don't think that's the likely intent, and I'm not sure that's the interpretation I would give if passed, but the inclusion of this language seems misguided. I recommend deleting that last line and just leave it to the broader exemption for ag leases already stated at 76-3-201(1)(f).
Some follow-up comments after I've mulled this over a bit.
ReplyDeleteThe exemption spelled out in the bill is limited in scope to areas where zoned, or only to the following in unzoned areas:
-- SLR expressly contemplated in subdivision approval
-- residential subdivisions for lease or rent of "a single dwelling structure and accessory structures of not more than four additional dwellings" (what exactly does this mean? see more discussion below)
-- storage units
-- multiple buildings or improvements for a single agricultural operation.
This exemption would NOT apply to allow multiple commercial buildings (other than storage units), nor would it apply to mixed residential and commercial uses on one parcel (such as a residence and separate commercial garage, or residence and separate storage units).
The bill also still does away with the current exemption for rent or lease of multiple parts of a single building. Thus, except where the stated exemptions apply, rent or lease of multiple parts of a building would require subdivision review. Examples: office buildings and apartment buildings in unzoned areas will be required to undergo subdivision review.
I am also concerned about the language "accessory structures" in the context of the exemption for up to four additional dwellings. This "accessory" language indicates an intent to limit usage to activities directly related to use of the main dwelling, such as for family members or unpaid guests. As such, this language does not appear to allow non-accessory uses such as commercial rent or lease to unrelated third parties. Accordingly, the language of the bill still does not allow commercial guest ranches without subdivision review (examples: Skalkaho Lodge, Dunrovin Ranch/Millers).
I previously prepared a Memorandum dated 2-18-2011 with my thoughts on other means to potentially amend the bill which may help avoid some of these presumably unintended gaps and consequences.
Sent the following to Missoula Senators:
ReplyDeleteThe Governors amendments to HB 494 do little to make the bill better and, in fact, add more confusion to the issue of subdivisions for lease or rent. Passage of this bill with the Governors amendments is very likely to lead to a variety of interpretations which will lead to more requests for AG opinions and possibly more litigation. Missoula County respectfully requests that you DO NOT CONCUR in the Governors amendments to HB 494.
Respectfully,
Dale Bickell on behalf of the Board of County Commissioners
To the House members:
ReplyDeleteGreetings,
The Governor’s amendments to HB 494 do little to make the bill better and, in fact, add more confusion to the issue of subdivisions for lease or rent. Passage of this bill with the Governor’s amendments is very likely to lead to a variety of interpretations which will lead to more requests for AG opinions and possibly more litigation. Missoula County respectfully requests that you DO NOT CONCUR in the Governor’s amendments to HB 494.
Respectfully,
Dale Bickell on behalf of the Board of County Commissioners
Dear Ms. Wilson,
ReplyDeletePlease communicate the following message to the Governor regarding House Bill 494.
Missoula County opposes HB 494 - Revise laws relating to subdivision exemptions. HB 494 would allow multiple single family residences, multiple multi-family units, resorts, apartments, condos, etc., as along as the land under the buildings was not sold. Furthermore, we are concerned that each development's land base could be sold after being brought in for subdivision review and approval because there would be no new impacts from the subdivision itself to warrant conditions or a denial. Please veto HB 494.
Respectfully on behalf of the Board of County Commissioners,
Dale D. Bickell