Request By:
Mr. David A. Reedy
Union County Planning Adiministrator
Union County Planning Commission
130 East Main Street
Morganfield, Kentucky 42437
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising several questions, most of which concern KRS 100.111(22) involving the definition of "subdivision" under the Planning and Zoning Act.
You first refer to that portion of KRS 100.111(22) which provides that "subdivision" means the division of a parcel of land into three or more lots or parcels for the purpose, whether immediate or future, of sale, lease, or building development. You ask whether this means that an individual needs to comply with subdivision regulations only after three lots are subdivided from the original tract of land. In your opinion the alternative interpretation would include the original tract as one of the tracts after subdivision of the land.
In OAG 77-230, copy enclosed, we considered KRS 100.111(22) and its applicability to a situation where a person owning a 35-acre farm sold off a 9-acre tract and retained the other 26 acres. We noted in that situation that the conveyance of one tract out of the 35-acre tract in reality constituted a division of the original parcel into two lots or parcels since a residual tract was created simultaneously with the off conveyance. Thus, when a tract of land is subdivided, the residual parcel or that portion of the original tract retained by the seller-subdivider constitutes one of the parcels or lots following the subdivision of that original tract.
Your next series of questions deal with that portion of KRS 100.111(22) involving re-subdivision. A part of the definition of "subdivision" states:
"The term includes re-subdivision and when appropriate to the context, shall relate to the process of subdivision or to the land subdivided: any division or redivision of land into parcels of less than one (1) acre occurring within twelve (12) months following a division of the same land shall be deemed a subdivision within the meaning of this section."
Apparently land owners in your county believe that under the above-quoted statutory section they can sell off one lot a year of less than one acre without being required to obtain planning commission approval.
We cannot find any reported case interpreting the statutory provision dealing with re-subdivision and, therefore, the matter ultimately will have to be resolved in the courts. It is our opinion, however, after examining the provision in question, that where land which has been subdivided so as to bring it within the definition of "subdivision" is re-subdivided into parcels of less than one acre within twelve months following the original subdivision of that same land, such re-subdivided land constitutes a subdivision, making the provisions of KRS 100.277 applicable and thereby requiring planning commission approval for such resubdivision.
You next refer to KRS 100.349, which states:
"Whenever any other restrictions or covenants impose a higher standard than that indicated by any regulation of this chapter, then such other restriction or covenant shall govern."
In OAG 76-161, copy enclosed, we said as follows in regard to that statute:
"Therefore, in conclusion, it is our opinion the phrase 'any other restrictions or covenants' mentioned in KRS 100.349 is limited to restrictions on the use of lands arising from deeds or contracts as zoning generally does not affect such restrictions. However, local zoning authorities may not enact ordinances or provisions that go beyond, are broader than, add to, subtract from, modify or affect, limit, amend or change statutes where the net result is one of conflict."
Your next question asks:
"If a driveway previously in existence to serve a farmhouse was utilized as a street for some five to eight homes built on lots fronting on this driveway would this be interpreted as the creation of a new street? This has recently occurred over the last five years with one lot a year being sold and no plat filed."
KRS 100.111(20) defines the word "street" to mean any vehicular way and KRS 100.100(22) states in part, "or if a new street is involved, any division of a parcel of land, " constitutes a subdivision. Also that same statutory section provides that a division of land for agricultural purposes into lots and parcels of five acres or more and not involving a new street shall not be deemed a subdivision. Regardless of whether a "new street" is involved, the actions of the land owner here may indicate an intent to subdivide the land. The conveyance of one lot for residential purposes would not constitute a subdivision but where the owner sells several tracts off a piece of land within a reasonable period of time, though one lot at a time, such would indicate a basic intent to subdivide the tract of land or portions thereof. See OAG 72-409, copy enclosed.
It would seem clear that you are not referring to lots of five acres or more used for agricultural purposes and therefore exempt from subdivision requirements for that reason. Here we have more than three lots utilized for building development and residential use. The driveway appears capable of being used as a public road for future building development as well as a means of public access to all the lots fronting on it. While we can find no case in point, and subject to any possible litigation on the matter, it is our opinion that such a driveway would probably constitute a "new street" subjecting the area in question to the subdivision regulations. Compare this situation to those situations found exempt in OAG's 72-516 and 73-605, copies enclosed.
Your next question asks whether the development of a 10-acre plot of land for a shopping center requires compliance with subdivision regulations when only one building is constructed but numerous shops and spaces are leased on that plot of land.
Subdivision regulations generally deal with land used for residential purposes rather than commercial or industrial ventures. We have serious doubts as to the applicability of the subdivision regulations to the shopping center to which you refer. We would suggest, however, that the local zoning regulations may provide the means of regulating such a commercial undertaking. Local zoning ordinances may restrict the construction of a shopping center to certain areas and may also impose restrictions as to how it is built, even where such a project is permitted.
Your last question concerns whether a county clerk may refuse to record a deed or subdivision plat that conflicts with a local zoning ordinance or subdivision regulations and the attorney's responsibility for assuring that a deed conforms to local ordinances.
KRS 100.277(1) states in part that no plat of a subdivision of land within the planning unit jurisdiction shall be recorded by the county clerk until the plat has been approved by the commission and the approval entered thereon in writing by the chairman, secretary, or other duly authorized officer of the commission. KRS 100.277(2) provides in part that no person owning land composing a subdivision, or his agent, shall transfer or sell or agree to sell any lot or parcel of land located within a subdivision by reference to or by any use of a plat of such subdivision, before such plat has been approved by the commission and recorded. Any such instrument of transfer, sale or contract shall be void and shall not be subject to being recorded, but all rights of such purchaser to damages are hereby preserved. The above-mentioned statute should answer your inquiries pertaining to the recording of deeds and subdivision plats.