Request By:
Mr. Joseph C. McGuire
Administrator
Joint City-County Planning Commission
The Sutherland Building
Bardstown, Kentucky 40004
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of August 9, in which you refer to certain commercial lots in an approved commercial subdivision in Nelson County. You relate that some of the owners of these commercial lots wish to lease part of them to other businessmen for the purpose of establishing a new business on the lot. The question is raised as to whether or not such action would constitute a resubdivision, requiring the commission's approval pursuant to KRS 100.277.
The terms "subdivision" and "resubdivision" are defined in KRS 100.111(22), which reads in part as follows:
"The term includes resubdivision 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."
The mere leasing of a portion of a lot in a previously approved subdivision for whatever purpose would not amount to a "resubdivision" unless the existing lot lines on the recorded subdivision plat are at the same time actually changed or altered. In this respect we are enclosing a copy of OAG 78-306, from which we quote the following:
"We cannot find any reported case interpreting the statutory provision dealing with resubdivision 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 resubdivided into parcels of less than one acre within twelve months following the original subdivision of that same land, such resubdivided land constitutes a subdivision, making the provisions of KRS 100.277 applicable and thereby requiring planning commission approval for such resubdivision. "
Reference is also made to
Goldstein v. Planning Bd. of Borough of Lincoln Park, 144 A.2d 724, 52 N.J. Supp. 44, which held that a sale of lots in a municipality which does not disturb the existing lot lines on an already filed map is not a "subdivision" within the meaning of the statute requiring the approval of the planning board. Also, as stated in 4 Anderson, American Law of Zoning 2d, Section 2302, the term "subdivision" may be defined to include the resubdivision of land or the alteration of a subdivision plat which has been previously filed.
Thus, unless the lot lines on the recorded plat are altered, the mere construction of a commercial facility on a portion of the lot per lease agreement would not constitute a resubdivision of the land.