Request By:
Mr. Brad G. Loar
Community Planner
FIVCO Area Development District
P.O. Box 636
Catlettsburg, Kentucky 41129
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of July 29 in which you seek an opinion concerning the following:
"A deed restriction in a city of the fourth class is in effect for a given parcel of land. This deed restriction states that the use must be either commercial or residential.
"In early 1975, the city adopted zoning per KRS 100 and zoned the land in question R-1D (residential) . A few months after the zoning was adopted the commercial use of the parcel in question was discontinued and the use became that of unused land.
"The zoning ordinance states that if any nonconforming use (use of parcel in question) is discontinued for six months or more no nonconforming use may be reestablished on said premises.
"In this case, do the prior deed restrictions apply thus allowing a commercial use of this parcel in 1977 when its commercial use was discontinued in 1975?"
In response to your question, reference is initially made to McQuillin, Municipal Corporations (3rd Ed.), Vol. 8, § 25.09, which, in discussing zoning and restrictions on the use of land, states in part:
"Zoning does not and cannot, as a rule, affect or abolish restrictions on the use of lands arising from deeds or contracts. That is to say, a zoning measure cannot constitutionally relieve land within a zoned district from lawful restrictions affecting its use. Accordingly, the zoning of land for business has no effect on existing restrictions confining the use of land to residential purposes. Moreover, covenants and deeds obviously can make restrictions as to the use of property conveyed in addition to restrictions imposed by zoning ordinances applicable to the area or district wherein the property is located."
For several Kentucky cases applying this concept see City of Richlawn v. McMakin, 313 Ky. 265, 230 S.W.2d 902 (1950); Robbins v. Cornell, Ky., 311 S.W.2d 543 (1958); and LaVielle v. Seay, Ky., 412 S.W.2d 587 (1967).
Referring to the case of City of Richlawn v. McMakin, supra, we find where the Court has held that a comprehensive zoning ordinance restricting the use of land in a sixth-class city for residential purposes was not unreasonable or arbitrary and did not impair any vested rights of the owners of the unimproved land. On the other hand, the Court in this case pointed out that:
"[W]e recognize the law to be that a zoning ordinance may not relieve land from lawful covenants of restrictions of use inter partes contained in deeds embracing a given area, for such ordinance cannot affect or impair the contractual obligation granted by such restriction."
From the above-cited law it is clear that the deed restrictions take precedence over zoning regulations with respect to the referred to property. It is noted that the deed restriction states that the use must be either commercial or residential. The word "or" in a statute must be given its normal disjunctive meaning indicating an alternative, particularly when used in conjunction with the word "either." Words and Phrases, Vol. 3.
Under the related facts, it would appear that the commercial use of the property could not be considered a nonconforming use and said property can continue to be used for commercial use in spite of the fact that a 1975 zoning ordinance zoned the property residential, since the property can be used for either commercial or residential use under the deed restriction.