Commissioners to determine status of related subdivisions

When should a series of adjacent, related minor subdivisions be treated as a major subdivision and go through public review?

That's a question the Flathead County commissioners will address on Thursday when they consider the final plats of four minor subdivisions on about 40 acres along Kienas Road and Batavia Lane west of Kalispell.

Major subdivisions create six or more lots; minors create five or fewer lots. Majors also face stiffer requirements, such as the need to provide an environmental assessment and the need to set aside parkland. They must also go through a public hearing with the relevant planning board.

The Nez Perce, Cheyenne, Cherokee and Chippewa subdivisions were submitted to the county planning office as five-lot minor subdivisions in 2003. No public review was required. The developer, having fulfilled all the conditions imposed at that time, is now requesting final plat approval.

However, the county attorney's office took the unusual step last month of recommending that the projects be denied in their present form. A similar recommendation was made for three minor, five-lot subdivisions proposed by another developer on about 30 acres south of Columbia Falls near Badrock Drive.

In each case, the projects are being marketed as a single subdivision, despite being presented as a series of minors.

"These subdivisions, in our opinion, are in violation of the Montana Subdivision and Platting Act," Deputy County Attorney Dennis Hester noted during the Nov. 9 meeting with the commissioners.

"It's our recommendation that you not approve any of them [as minors], because when you look at their cumulative effects, they add up to a major subdivision," Deputy County Attorney Peter Steele said. "This isn't a recommendation for a complete denial, but a recommendation that they go through major subdivision review [and] a public hearing."

The problem with both the Smith Valley and Badrock subdivisions, he said, is that more than one minor is being created from a tract of record.

A tract of record is a parcel of land that can be uniquely identified by its legal description. According to the county subdivision regulations, Steele said, a maximum of five lots can be created from any tract of record that existed as of Oct. 1, 1993. Any subsequent division must go through the major subdivision review process.

The Smith Valley land, he said, initially existed as three tracts of record, meaning three minors would be allowed. However, the developer is proposing to build four, or 20 lots total. In the Badrock case, three minors - and possibly a fourth - are being proposed from what was a single tract of record.

When evaluating minor subdivision proposals, Steele said, the planning office needs to look at the tract of record as of 1993. Using that as a starting point, one five-lot minor subdivision can be created before any subsequent split qualifies as a major.

"The main thing we're trying to avoid is doing a series of minors versus one major," he said.

Whatever the commissioners decide on Thursday, it will likely affect only a small percentage of the subdivisions being developed in the Flathead. Although dozens of minors are proposed every year, few of them would qualify as majors in disguise.

Furthermore, the uncertainty of the major subdivision review process, together with the reduced requirements for minor subdivisions (which stem from state law, rather than county regulations), give developers and property owners an incentive to continue down the minor route.

"You can spend a lot of money doing a major subdivision, with no guarantees," said Rick Breckenridge, co-owner of Montana Mapping Associates, which provided technical support for the Badrock subdivisions.

As a consultant, Breckenridge said, he has to give clients the best advice he can regarding how they can accomplish their goals. Sometimes that means splitting a project into smaller pieces - particularly when the public review process can be sidetracked so easily by emotional concerns, rather than focusing on the specific subdivision regulations.

"I have to present the best options I can for my client and try to find ways to minimize the pain," he said.

Breckenridge also disagrees with the county attorneys' interpretation of subdivision regulations. He said he thinks the 1993 reference date for a tract of record is illegal because it's more stringent than what state law requires.

"Under state law, the definition of a tract of record doesn't include any date," he said. "Local governments can't adopt more stringent regulations than what's allowed by state law unless they go through a formal process. That wasn't done in this case [when the county added the '93 reference date], so my contention is that it's illegal."

The commissioners will address the four Smith Valley subdivisions at 10:30 a.m. Thursday. The status of the Badrock projects will be determined whenever they come forward for final plat approval.

Reporter Bill Spence may be reached at 758-4459 or by e-mail at bspence@dailyinterlake.com