Request By:
Hon. Randall C. Teague
Moore, Morrow & Frymire
Kentucky Bank & Trust Bldg.
Madisonville, Kentucky 42431
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of January 30 in which you quote a subdivision regulation defining the term "subdivision" which was adopted in 1976. At the same time you quote KRS 100.111(22) which also defines the term "subdivision." The basic question raised is which definition would legally prevail, the one established by ordinance or the statutory definition referred to, in the event of a conflict.
In connection with your question, you further relate that in Hopkins County there are numerous parcels of land which have been sold which would not create a subdivision as defined by the county planning commission in its ordinance, but which would constitute a subdivision as defined in the statutory definition found in KRS 100.111(22). At the same time you refer to KRS 100.277 requiring the planning commission to approve all subdivision plats before lots or parcels of land located in the subdivision can be legally sold.
Our response to your question as to which definition would prevail is that the statutory definition of what constitutes a subdivision detailed in KRS 100.111(22) would control. Incidentally, in 1982 this subsection was amended together with the enactment of a new section found under subsection (2) defining the term "agricultural use."
In the case of
Creative Displays, Inc. v. City of Florence, 602 S.W.2d 682, (1980), the court declared that the language of Ch. 100 KRS pertaining to planning and zoning must be strictly construed and substantial compliance would not be sufficient. We quote the following excerpt which incidentally cites cases dating at least back to 1974:
"The Court of Appeals found such "substantial compliance" to satisfy the requirements of the statute. We find no authority for this position; on the contrary, we have consistently construed the language of chapter 100 strictly.
Daviess County v. Snyder, Ky., 556 S.W.2d 688 (1977); City of Erlanger, supra;
Hines v. Pinchback-Halloran Volkswagen, Inc., Ky., 513 S.W.2d 492 (1974) . . . ."
The case of Creative Displays, Inc., supra, referred to above was cited in the late case of
Green v. Bourbon County Joint Planning Commission, 637 S.W.2d 626 (1982), which reiterated that strict compliance with Ch. 100 KRS is mandatory and makes particular reference to the definition section involving what constitutes a subdivision under KRS 100.111(22).
Also in McCord v. Pineway Farms, Ky. App., 569 S.W.2d 690 (1978), the court in referring to the statutory subdivision definition declared:
"The very substance of this case involves the statutory construction of KRS 100.111(22) as it applies to the facts here. 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."
Aside from the fact that zoning statutes must be strictly complied with, case law has consistently held that where a conflict exists between an ordinance and a statute covering the same subject, the statute prevails. The court declared in
Boyle v. Campbell, Ky., 450 S.W.2d 265 (1970):
"Secondly, a municipal ordinance is invalid if it conflicts with a state statute. As stated in 37 Am. Jur., Municipal Corporations, Section 165 (page 787):
'It is a fundamental principle that municipal ordinances are inferior in status and subordinate to the laws of the state. An general character and statewide application is universally held to be invalid. '"
Referring to McQuillin, Mun. Corps., Vol. 5, Sec. 15.22, the following general rule is cited:
"It has been stated broadly that no municipal ordinance can go beyond, be broader than, add to, subtract from, modify or affect, limit, amend, or change statutes, at least where the net result is one of conflict. . . ."
See also
City of Bowling Green v. T & E Electrical Contractors, Inc., Ky., 602 S.W.2d 434 (1980).
As to the effect on conveyances of land that have been exempted from the subdivision approval requirements under KRS 100.277 by virtue of having followed the definition of what constitutes a subdivision adopted in the zoning ordinance rather than the statute which may have been done in good faith and could involve vested interest, can only be determined by appropriate litigation. However, the general rule is that the exercise of zoning power cannot itself create vested rights or contractual relations that are not subject to subsequent change by the exercise of such power. See McQuillin, Mun. Corps., Vol. 8, Sections 25.66 and 25.95 and
City of Richlawn v. McMakin, 313 Ky. 265, 230 S.W.2d 902 (1950). In addition, we are enclosing copies of OAG 77-463 and 79-494 which may be of interest and which discuss the effect of zoning regulations on lawful deed restrictions.
Although not applicable but which may be of interest to you is the case of