Request By:
Mr. Paul Shapiro
City Attorney
P.O. Box 165
Benton, Kentucky 42025
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of July 16, in which you relate that in 1969 the City of Benton adopted subdivision regulations pursuant to KRS 100.273 et seq. Prior to the adoption of said regulations the owners of a certain tract of land had it subdivided and platted into subdivision lots which were recorded in the county clerk's office though no lots were sold. After the plat was recorded the state purchased a right of way through the property, dividing the tract into two small tracts. Following the adoption of the subdivision regulations the tract lying on the south side of the Parkway was replatted and subdivided with the approval of the planning commission. However, the owner of the tract lying on the north side of the Parkway now desires to sell the lots in that tract according to the original plat recorded prior to the adoption of the regulations. The question is raised as to whether he can legally do so without first obtaining the approval of the planning commission.
KRS 100.277 prohibits the subdivision of any land before securing the approval of the planning commission of a plat designating the areas to be subdivided, and further provides that no plat of a subdivision of land shall be recorded until the plat has been approved by the commission.
The answer to your question would appear to depend on whether or not the zoning act and particularly the provisions of KRS 100.277 have retroactive effect since the subdivision in question was divided into lots and recorded prior to the adoption of the zoning regulations. As the facts indicate, the south tract was replatted and subdivided presumably following adoption of the regulations, which were approved by the planning commission, under the terms of KRS 100.277. However, no attempt is being made to replat or subdivide the north tract and the owner desires to sell the lots in the tract as provided in the original plat recorded prior to the adoption of the subdivision regulations. We find nothing in Chapter 100 and particularly with respect to the adoption of subdivision regulations under KRS 100.270 or the approval of subdivision plats under KRS 100.277 indicating that such provisions have retroactive effect.
Referring to McQuillin, Municipal Corporations, Vol. 8A, Section 25.181, concerning the extent that land is protected from zoning, the rule seems to be, as in the case of nonconforming usages, that a use existing at the time a zoning ordinance goes into effect cannot be restricted by ordinance where it is a lawful use of the property and not a public nuisance or one endangering the public health, safety and morals of the community. Accordingly, this section further provides that zoning regulations cannot be made retroactive and a zoning ordinance may not operate retroactively to deprive a property owner of his previously vested rights. Also referring to the case of Lampton v. Pinaire, Ky. App., 610 S.W.2d 915 (1981), we find the following statement by the Court:
"We have no quarrel with the general proposition that zoning changes as to lot size which occur after a subdivision plat is recorded and approved and development begun should not be allowed to interfere with the development of the property according to the original plat. "
Also under the statute governing the construction of statutes, KRS 446.080, the general case law declares that retroactive effect or retrospect application of an act will not be given or made unless the intent that it should be is clearly expressed or necessarily implied. Taylor v. Asher, Ky., 317 S.W.2d 895 (1958). Lowther v. Peoples Bank, 293 Ky. 425, 169 S.W.2d 85 (1943) further declares that a retroactive operation will not be given a statute interfering with antecedent rights unless such is the manifest intention of the legislature or unless the statute clearly contains a declaration of retroactivity.
Under the circumstances and with respect to the commission's approval of the subdividing of the north tract, we are of the opinion that the owner of said tract may sell lots therein in accordance with the original plat recorded prior to the adoption of said regulations and would thus not be required to obtain the commission's approval under the terms of KRS 100.277. However, in the absence of a case dealing in point, this question would be subject to litigation.