Court: condos must undergo review
A January district court decision on a pair of condominium projects totaling about 600 units near Lakeside will require the developers to submit to the subdivision review process, potentially setting a precedent for similar projects on unzoned land.
District Court Justice Ted O. Lympus ruled that the proposed condominium projects fail to meet the exemption requirements to avoid subdivision review. The decision was made in reference to two separate but consolidated cases; Etzler v. Board of County Commissioners and Blomgren Family Trust & Thornton v. Board of County Commissioners.
Jim Etzler argued that the commissioners have approved other condominium projects that did not meet any statutory exemptions, making the restrictions applied to his own project unreasonable.
Etlzer filed a declaration and bylaws for a residential condominium project containing 31 buildings and 124 units on property near Lakeside on Oct. 19, 2006. That project triggered a movement among residents near Spring Creek Road to form a zoning district to limit future development to one residence per acre.
Etzler previously obtained approval for a five-lot subdivision and one additional lot, each platted to include single-family dwellings. No consideration was given to condominiums at that time.
The other two plaintiffs in the case, Bill Blomgren and Dennis (and Donna) Thornton, had filed separate but adjacent residential condominium projects on Aug 1, and July 25, 2006 — Misty Cliff I, which called for 105 units in four buildings, and Misty Cliff II, which called for 385 units in 17 buildings — northwest of Lakeside. Both projects lie in an unzoned area, and neither has been built.
Upon learning that all three plaintiffs filed documents to create condominium projects without subdivision review, Flathead County officials took preemptive steps to prevent construction of the projects or transfer of units without first undergoing statutory subdivision review.
The county also contended, despite Etzler’s argument to the contrary, that, under Montana law, the recording of a document in the Clerk and Recorder’s office does not establish its validity.
The county further contended, in regard to the Blomgren and Thornton case that whether or not the Department of Revenue recognizes a condominium project has no bearing on the subdivision review process, nor does the Department of Revenue have authority in such matters, as claimed by the plaintiffs.
While the Montana Subdivision and Platting Act does define condominiums as subdivisions, the plaintiffs claimed exemption from subdivision review under Section 76-3-203, M.C.A. (2005), which states that certain condominiums constructed on land divided in compliance with the act may be exempt from subdivision review if (1) “approval of the original division of land expressly contemplated the construction of the condominiums and any applicable park dedication requirements” are met, or (2) “the condominium proposal is in conformance with applicable local zoning regulations where local zoning regulations are in effect.”
Although Blomgren and Thornton said their property was divided prior to the act’s adoption in 1973, they asserted that their parcels are located in the county’s “unzoned” zoning district and are not subject to any regulations that would otherwise prevent construction. They alleged that the county deliberately left a significant portion of its jurisdiction unzoned to allow the landowner use of the land free from governmental review.
According to the Jan. 14 ruling, the Etzler property was divided in accordance with the act because the original division of the property into five parcels with one remaining parcel did undergo subdivision review and approval by Flathead County Commissioners. However, they did not “expressly contemplate constructing condominiums” at that time. Thus, the property “fails to satisfy either of the methods by which one could meet the second prerequisite for an exemption from subdivision review.”
In regard to Blomgren and Thornton’s assertion that a lack of zoning somehow exempts a property from subdivision review, the ruling stated that “where zoning has not yet been enacted, condominium projects should undergo subdivision review because the local government has not yet had an opportunity to determine whether the property is suitable for any particular land use or for the condominium project."