Missoula County opposes SB 174, Revise laws related to local subdivision review, up for hearing this afternoon in the House Local Government Committee.
Senate Bill 174 amends the law regarding conditions of subdivision approval requiring them to meet a new threshold. Amendments have removed some requirements and the retroactive applicability; however, the bill is still severely flawed.
Conditions of approval are used to ensure compliance with local and state rules and regulations, not just for the subdivision review criteria outlined in 76-3-608. This language appears to limit conditions to just the criteria in 76-3-608. If it becomes law, it will make ensuring compliance with simple things such as an approach permit from Montana Department of Transportation, much more difficult.
Under current law (76-3-608(5), when applying conditions to a subdivision the governing body is required to consult with the subdivider and shall give due weight and consideration to the expressed preference of the subdivider, which may not meet the threshold for conditions provided in this bill.
Furthermore, the language proposed in this bill on lines 1-5 on page 2, conflict with established precedence and court rulings. The limits to local government authority to require conditions have long been established and applied. This new language conflicts with this clear and established precedence and adds vague and untested language, which will increase the amount of litigation related to subdivision.
Missoula County opposes SB 174: Revise laws related to local subdivision review, up for second reading this morning on the House floor.
Senate Bill 174 amends the law regarding conditions of subdivision approval requiring them to meet a new threshold. Amendments have removed some requirements and the retroactive applicability; however, the bill is still severely flawed.
Conditions of approval are used to ensure compliance with local and state rules and regulations, not just for the subdivision review criteria outlined in 76-3-608. This language appears to limit conditions to just the criteria in 76-3-608. If it becomes law, it will make ensuring compliance with simple things such as an approach permit from Montana Department of Transportation, much more difficult.
Under current law (76-3-608(5), when applying conditions to a subdivision the governing body is required to consult with the subdivider and shall give due weight and consideration to the expressed preference of the subdivider, which may not meet the threshold for conditions provided in this bill.
Furthermore, the language proposed in this bill on lines 1-5 on page 2, conflict with established precedence and court rulings. The limits to local government authority to require conditions have long been established and applied. This new language conflicts with this clear and established precedence and adds vague and untested language, which will increase the amount of litigation related to subdivision.
Senators, , Missoula county continues to oppose SB 174 as amended: Revise laws related to local subdivision review scheduled for second reading today on the Senate floor.
The following are comments in response to updated language in SB 174.3. Lines 18-20 (Page 2) introduce the concept of allowing actions not specifically prohibited in subdivision conditions of approval. Most conditions of approval are requirements in the affirmative and not prohibitions. An example would be the requirement for a certain road width to meet jurisdictional standards. Conditions are not typically placed on subdivisions to prohibit actions, whether foreseen or unforeseen. This new concept introduces the question of whether the governing body should add presumptively prohibitive conditions. This potentially creates distrust between the applicant and the reviewing jurisdiction, rather than engaging with the applicant on his/her expressed preference for mitigating potentially adverse impacts. This is the existing standard, and it has a long track record.
Lines 21-24 (Page 2) require consistent enforcement of conditions of approval within a subdivision. Conditions cannot be applied in a manner that benefits a particular landowner, while other landowners in the subdivision are subject to a stricter standard. The local government is currently prohibited from acting in an arbitrary and capricious manner in application of conditions in a subdivision; we therefore feel that these lines are unnecessary.
Lines 3-5 (Page 9) prohibit the governing body from having approval authority over the governing documents of a subdivision unless those documents impact a condition of subdivision approval. When a subdivision is approved, conditions are only applied to mitigate potentially adverse impacts. Locally, we have been able to reduce the number of conditions by streamlining our subdivision regulations. Subdivision approval assumes that mitigations proposed in the application are offered as part of the approval; therefore not every element of the approval is conditioned. The assumptions behind this added language will likely increase the total number of subdivision conditions.
Lines 9 and 10 (Page 10) establish a new standard for how the governing body denies a subdivision based on “unmitigable” impacts. The existing standard is that in some instances the unmitigated impacts of a subdivision may be unacceptable, therefore permitting the governing body to deny the subdivision. The standard allows for discretion, and does not demand subdivision denial. The new “unmitigable” standard does not account for clear mitigations that the applicant may undertake, but refuses to. The existing standard works, and should not be eliminated.
Sent March 11:
ReplyDeleteRepresentatives Thane and Whitman,
Missoula County opposes SB 174, Revise laws related to local subdivision review, up for hearing this afternoon in the House Local Government Committee.
Senate Bill 174 amends the law regarding conditions of subdivision approval requiring them to meet a new threshold. Amendments have removed some requirements and the retroactive applicability; however, the bill is still severely flawed.
Conditions of approval are used to ensure compliance with local and state rules and regulations, not just for the subdivision review criteria outlined in 76-3-608. This language appears to limit conditions to just the criteria in 76-3-608. If it becomes law, it will make ensuring compliance with simple things such as an approach permit from Montana Department of Transportation, much more difficult.
Under current law (76-3-608(5), when applying conditions to a subdivision the governing body is required to consult with the subdivider and shall give due weight and consideration to the expressed preference of the subdivider, which may not meet the threshold for conditions provided in this bill.
Furthermore, the language proposed in this bill on lines 1-5 on page 2, conflict with established precedence and court rulings. The limits to local government authority to require conditions have long been established and applied. This new language conflicts with this clear and established precedence and adds vague and untested language, which will increase the amount of litigation related to subdivision.
Please oppose SB 174.
Sent April 9:
ReplyDeleteRepresentatives,
Missoula County opposes SB 174: Revise laws related to local subdivision review, up for second reading this morning on the House floor.
Senate Bill 174 amends the law regarding conditions of subdivision approval requiring them to meet a new threshold. Amendments have removed some requirements and the retroactive applicability; however, the bill is still severely flawed.
Conditions of approval are used to ensure compliance with local and state rules and regulations, not just for the subdivision review criteria outlined in 76-3-608. This language appears to limit conditions to just the criteria in 76-3-608. If it becomes law, it will make ensuring compliance with simple things such as an approach permit from Montana Department of Transportation, much more difficult.
Under current law (76-3-608(5), when applying conditions to a subdivision the governing body is required to consult with the subdivider and shall give due weight and consideration to the expressed preference of the subdivider, which may not meet the threshold for conditions provided in this bill.
Furthermore, the language proposed in this bill on lines 1-5 on page 2, conflict with established precedence and court rulings. The limits to local government authority to require conditions have long been established and applied. This new language conflicts with this clear and established precedence and adds vague and untested language, which will increase the amount of litigation related to subdivision.
Please oppose SB 174.
Sent April 15:
ReplyDeleteSenators, ,
Missoula county continues to oppose SB 174 as amended: Revise laws related to local subdivision review scheduled for second reading today on the Senate floor.
The following are comments in response to updated language in SB 174.3. Lines 18-20 (Page 2) introduce the concept of allowing actions not specifically prohibited in subdivision conditions of approval. Most conditions of approval are requirements in the affirmative and not prohibitions. An example would be the requirement for a certain road width to meet jurisdictional standards. Conditions are not typically placed on subdivisions to prohibit actions, whether foreseen or unforeseen. This new concept introduces the question of whether the governing body should add presumptively prohibitive conditions. This potentially creates distrust between the applicant and the reviewing jurisdiction, rather than engaging with the applicant on his/her expressed preference for mitigating potentially adverse impacts. This is the existing standard, and it has a long track record.
Lines 21-24 (Page 2) require consistent enforcement of conditions of approval within a subdivision. Conditions cannot be applied in a manner that benefits a particular landowner, while other landowners in the subdivision are subject to a stricter standard. The local government is currently prohibited from acting in an arbitrary and capricious manner in application of conditions in a subdivision; we therefore feel that these lines are unnecessary.
Lines 3-5 (Page 9) prohibit the governing body from having approval authority over the governing documents of a subdivision unless those documents impact a condition of subdivision approval. When a subdivision is approved, conditions are only applied to mitigate potentially adverse impacts. Locally, we have been able to reduce the number of conditions by streamlining our subdivision regulations. Subdivision approval assumes that mitigations proposed in the application are offered as part of the approval; therefore not every element of the approval is conditioned. The assumptions behind this added language will likely increase the total number of subdivision conditions.
Lines 9 and 10 (Page 10) establish a new standard for how the governing body denies a subdivision based on “unmitigable” impacts. The existing standard is that in some instances the unmitigated impacts of a subdivision may be unacceptable, therefore permitting the governing body to deny the subdivision. The standard allows for discretion, and does not demand subdivision denial. The new “unmitigable” standard does not account for clear mitigations that the applicant may undertake, but refuses to. The existing standard works, and should not be eliminated.
Please oppose SB 174 as amended.