Request By:
Mr. William M. Lear, Jr.
Stoll, Keenon & Park
1000 First Security Plaza
Lexington, Kentucky 40507-1308
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 11, concerning the 1982 amendment to the definition section of Chapter 100, KRS, particularly KRS 100.111, involving the terms "agricultural use" and "subdivision." You raise the general question as to whether these amendments alter the basic scheme of the planning and zoning statutes as they relate to the regulation of agricultural land and its use as such. You further state that the Jessamine County Planning Commission has taken the position that under the referred to amendments "any division of land into five acre tracts must be zoned residential. " You question the commission's interpretation of the statutes which appears to you to violate both the state planning and zoning act and the Jessamine
We do not believe that simply because the legislature has defined the term "agricultural use" and amended the definition of the term "subdivision" to compliment same, this would in any way affect the basic power of the planning and zoning commission to regulate agricultural land as such. Insofar as we can determine, these changes simply mean that if land is used for agricultural purposes as defined in the definition and is divided into five or more acres, such division will not constitue division will not constitute a subdivision within the meaning of the act. This coincides with the provisions of KRS 100.203(4) relating to the contents of zoning regulations requiring in effect that where land is used solely for farming, dairying, stock raising and similar purposes, as now may be modified by the now may be modified by the 1982 definition, there shall be no regulations imposed as to building permits, certificates of occupancy, height, yard location or courts' requirements for agricultural buildings, etc.
Next referring to McQuillin, Municipal Corporations, Vol. 8, § 25.131, pertaining to the regulation of agricultural and farming uses, it is stated that "it is within the discretion of the legislative zoning authorities to determine whether or not an area may be used for agricultural purposes and to limit the extent of such uses." The significance of the definition sections above mentioned, and particularly the one relating to "subdivision," is reviewed extensively in the case of McCord v. Pineway Farms, Ky. App., 569 S.W.2d 690 (1978). This case involved an attempt to subdivide some land zoned agricultural into five or more acres without the commission's approval of the plat. The Court of Appeals declared that the trial court committed a reversible error when it ruled that the county zoning ordinance's density requirements for agriculturally zoned land did not apply to a subdivided farm located in an A-1 agricultural zone. In explaining its decision the Court said, and we quote in part:
". . . The statutory definition of subdivision is designed to mandate that the prior planning and zoning requirements and subdivision regulations of a local planning authority be applied to all significant land divisions. The pertinent exemption is for a division of land for agricultural purposes into parcels of five acres or more, not involving a new street. Clearly, the legislature wished to exempt the legitimate farmer who divides part of his farm real estate among the members of his family. The entire plan of KRS Chapter 100 is a scheme for land use control. The exception in KRS 100.111(22) is designed to insure that any division of agriculture land is made for the purpose of protecting agricultural interests. Here, Pineway Farms lies entirely within an agriculturally zoned area, so designated by the local governing body. . . ."
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"The trial court committed reversible error when it ruled that the Woodford County Zoning ordinance's density requirements for agriculturally zoned land did not apply to the farm now divided as Pineway Farms. Since Pineway Farms is located in an A-1 agricultural zone, it is subject to the county zoning ordinance, which restricts development according to ownership, purpose and density. It would appear that the proposed land division violates the ownership and purpose provisions, and exceeds the density requirements of the ordinance. . . ."
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". . . Additionally, the county zoning ordinance limits the construction of residences on agriculturally zoned lands to farm dwellings, occupied by farm owners. If the proposed division is not composed of farms, then the residences constructed thereon are not farm dwellings, and the developers cannot convert residential tracts into farms by simply calling them farms. . . ."
In conclusion, we agree that the 1982 amendments do not change the basic zoning concept relating to the regulation of agricultural land. Thus, the commission's contention, as indicated in the quote from your letter that any division of agricultural land into five or more acres must initially be zoned residential, would appear erroneous. On the other hand, the commisison, can, through its zoning regulations, determine whether an area may be used for agricultural purposes, as in the case of metropolitan expansion, and can as in the Pineway Farms case, determine whether a division of land used for agricultural purposes is in fact made for residential purposes and subject to approval by the commission, though the lot size comes within the subdivision definition exception for agricultural land.