Montana § 76-3-621 - Park Dedication Requirement

§ 76-3-621. Park Dedication Requirement

Park dedication requirement. (1) Except as provided in 76-3-509 or subsections (2), (3), and (6) through (9) of this section, a subdivider shall dedicate to the governing body a cash or land donation equal to: (a) 11% of the area of the land proposed to be subdivided into parcels of one-half acre or smaller; (b) 7.5% of the area of the land proposed to be subdivided into parcels larger than one-half acre and not larger than 1 acre; (c) 5% of the area of the land proposed to be subdivided into parcels larger than 1 acre and not larger than 3 acres; and (d) 2.5% of the area of the land proposed to be subdivided into parcels larger than 3 acres and not larger than 5 acres. (2) When a subdivision is located totally within an area for which density requirements have been adopted pursuant to a growth policy under chapter 1 or pursuant to zoning regulations under chapter 2, the governing body may establish park dedication requirements based on the community need for parks and the development densities identified in the growth policy or regulations. Park dedication requirements established under this subsection are in lieu of those provided in subsection (1) and may not exceed 0.03 acres per dwelling unit. (3) A park dedication may not be required for: (a) land proposed for subdivision into parcels larger than 5 acres; (b) subdivision into parcels that are all nonresidential; (c) a subdivision in which parcels are not created, except when that subdivision provides for condominiums; (d) a subdivision in which only one additional parcel is created; or (e) except as provided in subsection (8), a first minor subdivision from a tract of record as described in 76-3-609 (2). (4) If the subdivider does not choose a cash donation only, the governing body, in consultation with the subdivider and the planning board or park board that has jurisdiction, may determine suitable locations for parks and playgrounds and, giving due weight and consideration to the expressed preference of the subdivider, may determine whether the park dedication must be a land donation or a combination of both a land and cash donation. When a combination of land donation and cash donation is required, the cash donation may not exceed the proportional amount not covered by the land donation. (5) (a) In accordance with the provisions of subsections (5)(b) and (5)(c), the governing body shall use the dedicated money or land for development, acquisition, or maintenance of parks to serve the subdivision. (b) The governing body may use the dedicated money to acquire, develop, or maintain, within its jurisdiction, parks or recreational areas or for the purchase of public open space or conservation easements only if: (i) the park, recreational area, open space, or conservation easement is within a reasonably close proximity to the proposed subdivision; and (ii) the governing body has formally adopted a park plan that establishes the needs and procedures for use of the money. (c) The governing body may not use more than 50% of the dedicated money for park maintenance. (6) The local governing body shall waive the park dedication requirement if: (a) (i) the preliminary plat provides for a planned unit development or other development with land permanently set aside for park and recreational uses sufficient to meet the needs of the persons who will ultimately reside in the development; and (ii) the area of the land and any improvements set aside for park and recreational purposes equals or exceeds the area of the dedication required under subsection (1); (b) (i) the preliminary plat provides long-term protection of critical wildlife habitat; cultural, historical, or natural resources; agricultural interests; or aesthetic values; and (ii) the area of the land proposed to be subdivided, by virtue of providing long-term protection provided for in subsection (6)(b)(i), is reduced by an amount equal to or exceeding the area of the dedication required under subsection (1); (c) the area of the land proposed to be subdivided, by virtue of a combination of the provisions of subsections (6)(a) and (6)(b), is reduced by an amount equal to or exceeding the area of the dedication required under subsection (1); or (d) (i) the subdivider provides for land outside of the subdivision to be set aside for park and recreational uses sufficient to meet the needs of the persons who will ultimately reside in the subdivision; and (ii) the area of the land and any improvements set aside for park and recreational uses equals or exceeds the area of dedication required under subsection (1). (7) The local governing body may waive the park dedication requirement if: (a) the subdivider provides land outside the subdivision that affords long-term protection of critical wildlife habitat, cultural, historical, or natural resources, agricultural interests, or aesthetic values; and (b) the area of the land to be subject to long-term protection, as provided in subsection (7)(a), equals or exceeds the area of the dedication required under subsection (1). (8) (a) A local governing body may, at its discretion, require a park dedication for: (i) a subsequent minor subdivision as described in 76-3-609 (3); or (ii) a first minor subdivision from a tract of record as described in 76-3-609 (2) if: (A) the subdivision plat indicates development of condominiums or other multifamily housing; (B) zoning regulations permit condominiums or other multifamily housing; or (C) any of the lots are located within the boundaries of a municipality. (b) A local governing body that chooses to require a park dedication shall specify in regulations the circumstances under which a park dedication will be required. (9) Subject to the approval of the local governing body and acceptance by the school district trustees, a subdivider may dedicate a land donation provided in subsection (1) to a school district, adequate to be used for school facilities or buildings. (10) For the purposes of this section: (a) "cash donation" is the fair market value of the unsubdivided, unimproved land; and (b) "dwelling unit" means a residential structure in which a person or persons reside. (11) A land donation under this section may be inside or outside of the subdivision.