Request By:
Honorable John S. Hoffman
Sheffer, Hoffman, Neel & Wilson
Suite 312 Citi-Center, 230 Second St.
Henderson, Kentucky 42420
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman Asst. Deputy Attorney General
This is in response to your letter of November 21 in which you as attorney for the City-County Planning Commission relate that recently various individuals in the county have purchased farms which have been subdivided into lots or parcels of varying sizes, but not less than five acres, for sale to the general public. You further state there are no subdivision restrictions as to the use of the land by those who might purchase the various parcels. Some may be used for agricultural purposes and some residential sites, or both. The question is raised as to whether or not this subdivision of land comes within the provisions of KRS 100.111(33) which exempts a division of land for agricultural purposes.
The definition of what constitutes a subdivision under the referred to statute as well as the 1982 definition of the term "agricultural land" has nothing to do with the power of the Planning and Zoning Commission to regulate agricultural land usage pursuant to legally adopted zoning regulations in accordance with the comprehensive plan. See KRS 100.187, 100.201, 100.203 and 100.207. Also referring to McQuillin, Mun. Corps., Vol. 9, Sec. 25.131 we find the general rule to the effect that it is within the discretion of the zoning authority to determine whether or not an area may or may not be used for agricultural purposes and to limit the extent of such usage. In other words, the Planning and Zoning Commission can, pursuant to zoning regulations, designate what area is agricultural, and restrict the use of such land for other purposes, such as residential, which would include a division of agricultural lands into five or more acres that normally would be presumed to be for agricultural purposes under the definition of the section.
Generally speaking, if the land is divided for agricultural use and does not involve a new street as stated in KRS 100.111(23) and further involves tracts of at least five acres as mentioned in the term "agricultural use" in section 2, such division would not constitute a subdivision and therefore would not require the Planning Commission's approval for recording under KRS 100.277. However, in the case of
McCord v. Pineway Farms, Ky. App., 569 S.W.2d 690 (1978) referred to by you, the Court declared whether the use is agricultural depends upon the facts and there can be no presumption that the land is for agricultural purposes. We enclose a copy of OAG 79-283 discussing the McCord case in some detail. This case discusses the application of restrictive zoning regulations to land that has been subdivided and points up the importance of the Planning and Zoning Commission enacting zoning regulations applicable to all agricultural land. We quote the following excerpt from McCord which is also quoted in the opinion:
"The trial court committed reversible error when it ruled that the Woodford County Zoning ordinance's density reguirements 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. . . . Additionally, the county zoning ordinance limits the construction of residences on agriculturally zoned lands to famr 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. . . ."
Thus the answer to your question would depend on the actual factual situation and particularly whether or not the Planning and Zoning Commission has enacted land use regulations governing the use of agricultural land generally which would prevent the use of individual five acre tracts of land from being used for other than agricultural purposes unless and until the land owner makes application for a zoning change under the provisions of KRS 100.211.