Attorneys take issue with 'minor' subdivisions

Two proposed subdivisions that have made it part way through the planning process do not comply with state law and local regulations and should not be approved in their current form, according to the Flathead County attorney's office.

The developments - one north of Badrock Drive between Montana 206 and Middle Road, the other on Batavia Lane in Smith Valley - have slipped past a public hearing requirement by breaking what are in effect large subdivisions into smaller units, attorneys told county commissioners Monday.

"Those subdivisions, in our opinion, are in violation of the Montana Subdivision and Platting Act and the Flathead County regulations," said Dennis Hester, a deputy county attorney.

Several similar subdivisions have been approved over the years, said county planning director Forrest Sanderson, "though not of this magnitude. The appearance on this one really is bad, and that's what's really driving this."

Sanderson said that while he agrees with the county attorney's analysis, it also is not the whole story.

At issue are the definitions of "major" and "minor" subdivisions.

The legal analysis cites a definition of a minor subdivision as having five or fewer lots. To prevent a landowner from dividing a parcel of land and then building several minor subdivisions right next to each other, the regulation says there must be five or fewer lots on the parcel as it was recorded on Oct. 1, 1993.

The planning process differs markedly between minor and major subdivisions. A major subdivision must go through an environmental assessment as well as a public hearing, plus meet parkland requirements.

The developments discussed Monday steered clear of those steps, however.

The Badrock Drive subdivisions started as one tract of land that was split into four tracts, each going to a different member of the owner's family. Three of those tracts have proposed subdivisions of five lots each, and the fourth has had addresses assigned for five lots - a total of 20 lots, which exceed the requirements for approval as minor subdivisions.

In the Smith Valley case, two pieces of land were split into four parcels and also spread among relatives. Then four five-lot subdivisions were proposed, with 11 of those lots planned for a tract of land that should have only five lots if it were to be a minor subdivision.

"When you look at the cumulative effect … they all add up to one major subdivision," Deputy County Attorney Peter Steele said. "The recommendation is not for a complete denial of the subdivision[s]. This is a recommendation that the subdivisions go through major subdivision review."

The county's rules governing subdivisions also need reviewing, Sanderson said. While the developments discussed Monday have caused controversy, he said they also have provided the momentum for county officials to address "idiosyncrasies" in the existing rules.

For example, there is another definition for a "minor" subdivision elsewhere in the regulations that creates gray areas.

There also aren't definitive guidelines governing developments such as the ones presented Monday, in which land has changed hands since 1993 and small developments are proposed for each one.

"The bottom line is Flathead County needs to take a long, hard look at our subdivision regulations," Sanderson said. "They need serious open-heart surgery."

The commissioners took the subdivision issue under advisement on Tuesday.

Reporter Alan Choate may be reached at 758-4438 or by e-mail at achoate@dailyinterlake.com