Request By:
Frank K. Warnock
Attorney at Law
Main Street
Greenup, Kentucky 41144
Opinion
Opinion By: Robert F. Stephens, Attorney General; Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of October 5, 1979 in which you request an opinion concerning the following:
"In 1969, a Plat of Berkshire Estates Subdivision located in Russell, Greenup County, Kentucky, was submitted by a client to the City of Russell Council for approval. This Plat contained 106 residential lots and further showed an adjoining tract of 2.5 acres owned by my client at that time. The adjoining tract of 2.5 acres was designated on the Plat as 'Commercial.' This Plat was presented to the Russell City Council, accepted and a notation made on said Plat 'Approved: Russell Planning Zoning Commission Oscar Skaggs, Chairman, April 18, 1979.' Thereafter, this Plat was filed in the office of the Greenup County Clerk. In 1974, the City of Russell, pursuant to KRS Chapter 100 adopted a comprehensive Planning and Zoning Ordinance and Official Map.
"Thereafter, in late 1978, my client discovered that the Official Map so adopted in 1974 now designates the 2.5 acre tract as Residential and not Commercial as previously zoned. At all times this 2.5 acre tract has remained vacant and has not been used for commercial purposes or residential purposes. It further appears that the legal prerequisites of KRS Chapter 100 were complied with in 1974 by the City of Russell at the time of that adoption of the comprehensive plan and Official Map although there is some question as to availability to view this Map at the City Building prior to the adoption of the comprehensive plan and some question as to the proposed Official Map being at the public hearing prior to the adoption of this official plan.
"Our question is: Would the adoption of this Comprehensive Plan and Official Map in 1974 by the City of Russell and its designation therein of the 2.5 acre tract as residential supercede and in effect legally change the prior zoning classification of commercial to residential? "
Our response to your question would be in the affirmative. The zoning of property within the city's jurisdiction is controlled by its zoning regulations and amendments thereby adopted pursuant to KRS 100.207 and 100.211. Subdivision plats on the other hand, must comply with subdivision regulations adopted pursuant to KRS 100.281 which has nothing to do with zoning. The fact that the plat had previously been affirmed is of no significance in this respect and as a consequence the zoning map and regulations showing this acreage to be zoned "residential" rather than "commercial" would be controlling in our opinion.