Request By:
Mr. John B. Nichols
Boyle County Clerk
Danville, Kentucky 40422
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion as to whether you can put to record a deed of five (5) acres, which came out of an eighty-five (85) acre tract, and which land lies in the unincorporated portion of Boyle County. The county has countywide zoning. See KRS 100.117, 100.201, 100.273, and 100.277. You have told us that a farmer wished to give his son a place to build a home and to use it for agricultural purposes. KRS 100.277 requires the planning commission approval of a plat of a subdivision out of which land is conveyed. That was not done in this situation.
Since Boyle County contains a third class city, under KRS 100.111(23), "subdivision" means the division of a parcel of land into two or more lots or parcels for the purpose of sale, lease, or building development, or if a new street is involved, any division of a parcel of land. However, a division of land for agricultural use and not involving a new street shall not be deemed a subdivision. See KRS 100.203(4).
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. In referring to this exception, the
Court of Appeals, in McCord v. Pineway Farms, Ky.App., 569 S.W.2d 690 (1978) 692, 693, wrote this:
"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 agricultural land is made for the purpose of protecting agricultural interests."
Considering that only one conveyance was made, involving the one parcel, under KRS 100.111(23) no "subdivision" is involved. Therefore commission approval for subdivisions, as required by KRS 100.277, is not applicable.
Recently you have had a problem with off conveyances of real estate for agricultural use. The conveyances involved tracts containing 1, 2, and 3 acres respectively. No lots were deeded on a private road. One of the lots adjoins a county road. You ask: How does a county clerk know whether an off conveyance is for agricultural use?
KRS 100.111(23) reads in part:
"(23) 'Subdivision' means 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 or more lots or parcels; for the purpose, whether immediate or future, of sale, lease, or building development, or if a new street is involved, any division of a parcel of land; provided that a division of land for agricultural use and not involving a new street shall not be deemed a subdivision."
The term "agricultural use" is defined in KRS 100.111(2):
"(2) 'Agricultural use' means the use of a tract of at least five (5) contiguous acres for the production of agricultural or horticultural crops, including but not limited to livestock, livestock products, poultry, poultry products, grain, hay, pastures, soybeans, tobacco, timber, orchard fruits, vegetables, flowers or ornamental plants, including provision for dwellings for persons and their families who are engaged in the above agricultural use on the tract, but not including residential building development for sale or lease to the public."
In the situation you describe, since no new street is involved in those conveyances, if the division of the land is for "agricultural use" , then such conveyances would not involve a subdivision, and would thus not be subject to the subdivision law of KRS Chapter 100 (see KRS 100.277).
Under the facts, these conveyances were all less than five (5) contiguous acres, as required by KRS 100.111(2). Thus such conveyances would not be exempt from the subdivision law of KRS Chapter 100. We believe that subsection (2) spells out rather clearly what is meant by "agricultural use" . Where you have any doubt as to the applicability of subsection (2) to a real situation of conveyances, you can require the grantor to give you a written statement of the pertinent facts to be measured by subsection (2). There can be no valid presumption in a local ordinance of agricultural use. In fact, the Supreme Court of Kentucky has declared that strict compliance with KRS Chapter 100 is mandatory. Thus the matter of observing "agricultural use" , as defined by the statute, must be strictly accomplished in terms of the utter reality of the situation.