Local Government Control Over Private Property Access
The need to secure access to private property has been in the spotlight here in Montana since before statehood. Local government often is the central focus of legislative action affecting private property rights. With continued growth across Montana, planning becomes a priority at all levels of government.
In this 66th Montana Legislative Session, Senate Bill 198 sponsored by Senator Jason Ellsworth deals directly with access to private property. The bill passed the Montana Senate with a 50 to 0 vote. It is now before the House Local Government Committee.
Senate Bill 198 was brought forward by Montana Association of Counties. The private organization is engaged in the land use planning process on behalf of many counties.
Under Montana Law, subdividing property must follow guidelines in Title 76 of Montana Codes Annotated, (MCA) covering land use planning.
Under Montana law 76-3-207MCA there are exemptions from the subdivision guidelines and legal requirements. Most common exemption is known as a family transfer.
The bill focuses on what is termed “Legal Access”. Legal access is not defined in Montana law. It is important to record legal easements in all private property development or changes in ownership at the county level. Without a legal definition, the requirement to record a legal access is problematic.
Many property owners and government officials often focus on “Physical Access”. With subdivisions being created across Montana access regulations continue to be reviewed and debated. If the access is clearly seen on the ground, the physical access is established. There are cases however, where the physical access does not match the legal access recorded in the county.
Historically when a family transfer of property is made there has been no requirement to provide a recorded access to the gifted property of family members. What usually happens is the transfer is made and everyone lives happily ever after.
There are always exceptions to the rule. Several cases over the years have found access to the transferred property becomes a challenge. If the owner of the host property changes hands or a family dispute arises the access to the divided property is disputed.
The law change as proposed by SB198 secures local government control over the transfer of lands exempt from subdivision regulations. The new law will require legal access to be recorded at the county level. With no definition of what is legal access in Montana law, SB198 is called into question.
Montana Realtors voiced concern on the bill claiming that it will erode subdivision regulations as well as present a legal challenge for property owners.
Proponents of the bill state that the need to secure an amendment to current law is to “Protect the Public”. Opponents of the bill fear that the change gives government further authority to arbitrarily regulate the use of private property injuring the rights of the people.
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