Request By:
Mr. T. Steven Bland
Hardin County Attorney
#46 Public Square
P.O. Box 834
Elizabethtown, Kentucky 42701
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Hardin County Fiscal Court is considering the adoption of an ordinance designed to enforce certain portions of KRS Chapter 100, relating to planning and zoning.
KRS 100.111(23) defines "subdivision" in part as the division of a parcel of land into three (3) or more lots or parcels except in a county containing a city of the first, second or third class or in an urban county government where a subdivision means the division of a parcel of land into two (2) or more lots or parcels. Hardin County does not have a city of the first, second or third class. It does have a fourth class city, Elizabethtown. Therefore a subdivision in Hardin County is a division of a parcel of land into three (3) or more lots for the purpose, whether immediate or future, of sale, lease, or building development. Where a new street is involved, a subdivision is generally any division of a parcel of land. A division of land for agricultural use and not involving a new street shall not be deemed a subdivision.
KRS 100.277 requires that all subdivision of land shall first receive the approval of the planning commission. KRS 100.277(1) provides:
"No person or his agent shall subdivide any land, before securing the approval of the planning commission of a plat designating the areas to be subdivided, and no plat of a subdivision of land within the planning unit jurisdiction shall be recorded by the county clerk until the plat has been approved by the commission and the approval entered thereon in writing by the chairman, secretary, or other duly authorized officer of the commission."
KRS 100.277(2) provides that no person owning land composing a subdivision shall transfer or sell or agree to sell any lot in the subdivision by reference to or other use of a plat of the subdivision before such plat has received final approval of the planning commission and has been recorded. Any such instrument of transfer or sale not meeting those conditions shall be void and shall not be recordable. See penalties for violation of these provisions in KRS 100.991. However, until the planning commission adopts subdivision regulations, KRS 100.277, requiring the planning commission's approval before a subdivision plat can be recorded, has not been complied with. Thus a fiscal court has no authority to appove or adopt subdivision regulations in order for them to become effective, since the adoption of such regulations is the sole responsibility of the planning commission. See KRS 100.273 and KRS 100.281.
KRS 100.277(2) reads:
"No person owning land composing a subdivision, or his agent, shall transfer or sell or agree to sell any lot or parcel of land located within a subdivision by reference to, or by exhibition, or by any other use of a plat of such subdivision, before such plat has received final approval of the planning commission and has been recorded. Any such instrument of transfer, sale or contract shall be void and shall not be subject to be recorded, but all rights of such purchaser to damages are hereby preserved. The description of such lot or parcel by metes and bounds in any contract or instrument of transfer or other document used in the process of selling or transferring same shall not exempt the person attempting to transfer from penalties provided or deprive the purchaser of any rights or remedies he may otherwise have."
The proposed ordinance instructs the county clerk to enforce the provisions of KRS 100.277(2) by accepting for filing only those deeds or contract for deeds which include the following certification signed and dated by the grantor:
"I hereby declare that, as grantor of this tract of land, I understand the provisions of KRS 100.111(23), 100.277(2), and local ordinances regarding the conveyance of subdivided land. I further declare my understanding that I could be subject to criminal penalties of between ten dollars ($10) and five hundred dollars ($500) for violating these provisions. I finally declare to the grantee of this tract of land that if this instrument has been signed by me in violation of the cited statutes, it shall be void as mandated by state law."
The effect of the ordinance is that each deed or contract for deed presented to the county clerk for filing and recording must contain the grantor's certification that the instrument was prepared and meets the requirements of KRS Chapter 100, specifically, KRS 100.277(2). You seek our opinion as to whether the fiscal court has the authority to pass such ordinance.
The Court of Appeals, in McCord v. Pineway Farms, Ky.App., 569 S.W.2d 690 (1978), wrote this: "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."
CONCLUSIONS
(1) It is our opinion that KRS 100.277 is preemptive and controlling, and that a fiscal court has no authority to impose, as an added condition for a valid transfer of title to real estate and the recording of same by the county clerk, the provisions of the ordinance relating to the certification.
(2) In addition to the ordinance's not being consistent with KRS Chapter 100, see also the penalty provisions of KRS 100.991(2), it imposes conditions upon recording of deeds and contracts for deeds not dealt with in KRS Chapter 382. See specifically KRS 382.100, 382.110, 382.120, and 382.130. A fiscal court is strictly a creature of statute, as relates to its legislative powers. Obviously, it cannot legislate in areas not permitted by statute.