DOJ: News Release

McGrath: All Subdivisions Must Meet State Environmental Standards

HELENA – Local governments must require that all proposed subdivisions – including those between 20 and 160 acres – meet the water quality and waste disposal standards set by the Department of Environmental Quality, Attorney General Mike McGrath concluded in an opinion issued Friday.

Granite County Attorney Allen Bradshaw requested the opinion.

Bradshaw’s request noted that the two Montana laws in question define “subdivision” differently: the subdivision law that deals with platting defines subdivisions as less than 160 acres, while the subdivision law relating to sanitation defines subdivisions as parcels of up to 20 acres. At issue was whether county sanitation standards applied only to subdivisions of 20 acres or less, with those between 20 and 160 acres exempt from the standards, or whether the county sanitation standards applied to all subdivisions. State law requires county standards to be substantially the same as state standards.

Since the Montana legislature clearly intended to require counties to adopt sanitation regulations for all subdivisions, the opinion concluded that the regulations apply equally to all subdivisions.

The opinion examined whether counties have the authority to set local water quality and sanitation regulations that are more restrictive than state standards. The opinion concluded that local governments must adopt the state standard unless they met specific criteria showing that more stringent local standards would better protect public health. State laws do not give local governments the option of adopting standards less stringent than the state standards.

The ruling also said that a proposed subdivision must be reviewed to determine compliance with local regulations at the preliminary plat stage rather than at the final review stage. By law, a local government cannot impose additional conditions after it has approved a preliminary plat. The preliminary approval stage is, then, the only point at which a county could rectify a departure from local subdivision rules. “Any other conclusion would render local government review meaningless,” the opinion said.

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