BISSELL ROBERTS

COPYRIGHT 2002©

I.  NEGOTIATING THE MAZE OF LAND DIVISION          REGULATION[1]

A. DEFINING THE BASIC LAW GOVERNING THE DIVISION OF LAND

 

It is important to consider the difference between a “subdivision” and “subdivision regulations.”  A subdivision is a division of a parcel of land into two or more tracts.  Subdivision regulations provide the legal framework for development of  subdivisions in those Kentucky communities which have adopted subdivision regulations. Subdivision regulations usually include technical requirements for site improvement, construction, bonding, design and construction of streets and street intersections, as well as provisions for pedestrian and vehicular access, layout of lots, provisions for easements, recreational areas, hazardous areas and areas subject to flooding or drainage problems.  In short, subdivision regulations regulate the subdivision plan, which is the layout for a particular development.  Subdivision regulations apply to all residential, commercial, industrial and other developments, which are not exempt from regulation.

In order to accommodate the merged Louisville and Jefferson County Governments, known as the “consolidated local government”, there were numerous technical legislative revisions in KRS 100.  Those revisions, effective July 15, 2002, include a minor modification of the term “Subdivision”, as defined by Kentucky’s Planning and Zoning Act KRS 100.111(22) now provides –

“‘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 or consolidated local government where a subdivision means the division of a parcel of land into two (2) 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 includes resubdivision and when appropriate to the context, shall relate to the process of subdivision or to the land subdivided; any division or redivision of land into parcels of less than one (1) acre occurring within twelve (12) months following a division of the same land shall be deemed a subdivision within the meaning of this section;”  (Amended language in italics).

 B. DELEGATING AUTHORITY TO LOCAL GOVERNING BOARDS

Because the Commonwealth ultimately controls all property rights in Kentucky, the exercise of control over the division of property was delegated to local governments by the General Assembly.  Subdivision regulations are enacted by the exercise of police power granted to local governments by the General Assembly.  Hardin County v. Jost, Ky. App., 897 S.W.2d 592 (1995).  Pursuant to KRS 100.273 the power was delegated to local government to enact subdivision regulations by local options.  Some local governments have no subdivision regulations.  Others have adopted subdivision regulations without zoning regulations.  Some communities have both.

After a Planning Commission develops its Comprehensive Plan to the point that it has completed “the objectives, land use plan, transportation plan and community facilities elements” the Planning Commission has the authority to adopt subdivision regulations.  KRS 100.273(1). The regulations usually regulate all forms of land development, i.e. residential, commercial, industrial, etc.  If located in a county with an urban-county government, the Planning Commission must recommend subdivision regulations to the legislative body and it takes a majority of that legislative body to override the Planning Commission’s recommendation.  KRS 100.273(1).  Subdivision regulations may also be adopted in counties that do not establish “planning units or planning programs.”  In those situations, the Fiscal Court has the authority to adopt subdivision regulations.  KRS 100.273(2).

Bellefonte Land, Inc. v. Bellefonte, Ky. App., 864 S.W.2d 315 (1993) involved a legal challenge to a city’s adoption of zoning ordinances and subdivision regulations.  The city adopted zoning ordinances and subdivision regulations, before it joined the local “planning unit” and before it had adopted the “goals and objectives” standards of a land use plan.  Because of those procedural irregularities, the Court of Appeals reversed the Circuit Court’s dismissal of a property owner’s complaint, which challenged the legality of Boone County’s zoning laws.  The case was remanded to the Circuit Court for a judgment declaring that the ordinances were “void ab initio.”  As a result the City lacked jurisdiction to regulate the property owner’s road.

Sizemore v. Madison County Fiscal Court, Ky. App., 58 S.W.3d 887, 890 (2001) discussed the legislative scheme for subdivision regulation in Kentucky.  It held:

“The intent is to give local government the power to control the subdivision of land in order to protect its citizens in matters of public safety, health and welfare.”

 

After noting the development of “subdivision management” within KRS 100, a recent Court of Appeals case discussed that evolution.  Kelly v. Cook, Ky. App., 899 S.W.2d 517, 518-519 (1995) noted:

“With an ever-expanding population, an increase in urbanization, and the division of farms into residential tracts, our General Assembly recognized the need for an easier way to divide and convey land.  Their solution was subdivision regulations, which would change dramatically and forever conveyance law involving most divisions of land of less than five acres.”  See, KRS 100.111, Sections 2 and 22.

 

An independent city planning unit or members of a joint planning unit composed only of two or more cities may adopt subdivision regulations which have extraterritorial jurisdiction up to five miles beyond the city’s boundaries, but not beyond a county line.  See, KRS 100.131.

C. FAMILIARIZING YOURSELF WITH PROCEDURES AND STANDARDS

 

The standards and procedures for subdivision development depend upon the law of the jurisdiction where property is located.  A copy of the current subdivision regulations and a familiarity with their requirements, as well as, the requirements of state law is essential.  In addition, reference to case law and the legal title of the property may be important.  Occasionally legal title prohibits or limits further division of property.  Subdivision regulations vary from community to community.

In communities that adopt a Comprehensive Plan, the subdivision regulations must be based upon that Comprehensive Plan according to KRS 100.281, which mandates that all subdivision regulations shall contain:

1. A procedure for submission, approval and disapproval within 90 days of submission of all preliminary and final subdivision plats.

 

2. Specifications for format and content of all subdivision plats.

 

3. Design requirements for “streets, blocks, lots, utilities, recreation areas, other facilities, hazardous areas and areas subject to flooding.”

 

4. Specifications for streets, utilities and other facilities, public dedication requirements, and requirements for surety to guarantee completion of improvements.

 

5. Specifications or dedication of land for public purposes – the Planning Commission may require a reservation not to exceed two (2) years for parks, open space, schools and other public uses.

 

One of the key considerations in any subdivision case is the entity which has the authority to approve  a proposed subdivision.  The right to approve a subdivision may be vested in:

Ø      The Planning Commission.  KRS 100.277 (1); or

Ø      A fiscal court.  KRS 100.273(2).

Sizemore v. Madison County Fiscal Court, supra, illustrated the importance of knowing which entity has the legal authority to approve a subdivision.  In Sizemore, a developer proposed development of a 523 lot mobile home park in Madison County, Kentucky.  Although the developer had made an informal presentation to the Subdivision Advisory Board of the Fiscal Court and to the County/Judge Executive, it had never formally applied for approval of the proposed subdivision. The informal approvals obtained did not meet the requirements of the local subdivision regulations for subdivision approval.

D. PLATTING PROCEDURES AND THE APPROVAL PROCESS

Local regulations should be carefully consulted for specific details on the platting process and approval process.[2]  In the typical subdivision case the Planning Commission grants approval of a Preliminary Plat which is an initial indication of the developer’s plan. As the development proceeds the Planning Commission will usually grant final Plat approval of portions of the property, as it actually developed.  KRS 100.277 requires the Planning Commission’s approval of a final plan which should then be recorded in the County Clerk’s Office at the expense of the developer. KRS 100.283.  Although a developer by law may enter into contracts to sell a lot or parcel of land within a proposed subdivision, no transfer of property can occur until a final subdivision plat has been approved by the Planning Commission and recorded with the County Clerk.  KRS 100.277(2).

KRS 100.287 allows the Kentucky Department of Highways to request an approval right of any subdivision located within one mile of an existing or proposed state highway. The Department of Highway’s recommendation must be made to the Planning Commission within fifteen (15) days of receipt of the Preliminary Plat.  KRS 100.287.

Once a final subdivision plan has been prepared in accordance with local regulations, it should be submitted to the Planning Commission for written approval as required by KRS 100.277(2).  Approval of a subdivision plat by the Chairman of the Planning Commission or a duly authorized officer of the Planning Commission is a “ministerial act”.  Kelly v. Cook,  supra, held that if the subdivision plat conforms with zoning regulations and subdivision regulations, it should be approved.  There is no statutory requirement that a public hearing be conducted on an application for approval of a subdivision plat.  Since approval it is a ministerial act, ordinarily there is no reason for a public hearing.  The County Clerk is prohibited from recording a subdivision plat until Planning Commission approval is obtained.  Once approved, a record plat not exceeding 24 inches by 36 inches should be recorded at the developer’s expense and indexed by the County Clerk.  KRS 100.283.

Property within a subdivision shall not be conveyed until the subdivision plat has been approved and recorded.  After recording a legal description of lots may be by lot or parcel number in lieu of a metes and bounds description.  KRS 100.277(3); Henry Fischer Builder, Inc. v. Magee, Ky. App., 957 S.W.2d 303, 305 (1997).  That case also addressed whether a preliminary plat is binding in a planning and zoning case.  The developer had presented a preliminary plat which had been approved by the Planning Commission. Over time portions of the development were approved in the form of final plats.  The Court of Appeals decided that only after final plat approval by the Planning Commission does any entity acquire rights in connection with property dedicated by the plat.  KRS 100.285(3)(b).  The Henry Fischer Builder, Inc., opinion rejected a claim by neighboring property owner that a roadway shown on the preliminary plat of the subdivision was a dedicated street.  The opinion confirmed that there could be no dedication until a final subdivision plat was approved and recorded.

The City of Georgetown  rejected a land use plan to modify a service station site submitted for approval pursuant to a zoning regulation.  The property was properly zoned for a service station. The City’s rejection was because the development would increase traffic congestion. Kentucky’s highest court in City of Georgetown v. Deevco, Inc., Ky., 451 S.W.2d 422 (1970) determined the “subdivision process” cannot be used to deny a property owner the right to conduct a lawful filling station operation on property that was previously zoned for that purpose.

Ordinarily, subdivision regulations impose requirements for dedication and reservation of streets, utility easements and other necessary facilities, which must be dedicated as a condition precedent to approval of the subdivision plat.  KRS 100.281(4).  A dedication must be the act of the property owner(s). A tenant cannot make a statutory dedication such as a dedication for a roadway, because a tenant does not own the property.  See, Bluegrass Manor v. Mall St. Matthews Ltd. Partnership, Ky. App., 964 S.W.2d 431 (1998).

In some situations, the Planning Commission may require a reservation not to exceed two years for parks, open space, school and other public uses.  KRS 100.281(5).  In other cases, a developer may voluntarily elect to reserve land for an indefinite period for open space, parkland or for the future construction of a public school.

In the past, legislative bodies frequently declined to accept maintenance responsibility for dedicated public roads.  As a result KRS 100.277(4) was amended to provide –

“Any street or other public ground which has been dedicated shall be accepted for maintenance by the legislative body after it has received final plat approval by the planning commission.  Any street that has been built in accordance with specific standards set forth in subdivision regulations or by ordinance shall be, by operation of law, automatically accepted for maintenance by a legislative body forty-five (45) days after inspection and final approval.”

 

A required dedication must be based upon reasonably anticipated burdens caused by the development. Lampton v. Pinaire, Ky. App., 610 S.W.2d 915 (1980).  The case of Lexington-Fayette Urban County Gov’t. v. Schneider, Ky. App., 849 S.W.2d 557 (1992) involved a dispute about a Planning Commission’s attempt to extract a dedication requiring the construction of a bridge by a developer.  The developer proposed to develop 85 acres in Fayette County.  After the initial phase of the development was completed, the developer submitted a subdivision plan for the remaining 18-acre tract phase.  The Planning Commission sought to require dedication of land for construction at the developer’s expense of a collector street and a $130,000 to $252,000 bridge across a creek.  In affirming the Fayette Circuit Court’s opinion that the Planning Commission had acted in an arbitrary and capricious way, and after finding that the actual users of the bridge greatly exceeded the residents of the developer’s subdivision, the Court held at p. 559:

“[h]owever, a developer should not be made to contribute to the cost of public improvements in an amount that far exceeds the anticipated use necessitated by his/her development.  The standard of taking of property of this nature was enunciated inLampton v. Pinaire, Ky. App., 610 S.W.2d 915, 919 (1980) when the Court stated: ‘So long as the taking of a portion of the land whether on the exterior or from the interior, is based on the reasonably anticipated burdens to be caused by the development, the dedication requirements as a condition precedent to plat approval are not an unconstitutional taking of land without just compensation.”

            The Court further found that there must be a “reasonable connection between the condition placed on the developer and the purpose for the condition, i.e. a bridge to convey traffic from neighborhood to neighborhood and from arterial to local streets.”  Many subdivision regulations provide for filing of a preliminary subdivision plan with the Planning Commission, which after a review for conformity with the subdivision regulations, is usually revised and refiled as a final subdivision plan.  This procedure is authorized by KRS 100.281(1).

 

To the extent a developer may be required to dedicate land in a subdivision for public purposes, that requirement must be reasonable and a “reasonably anticipated burden” for the developer.  If the requirement is reasonable and due process is afforded, it will not be considered an unconstitutional taking of land without just compensation.  Lampton v. Pinaire, supra.  A developer should not be made to contribute to the cost of public improvements in an amount that far exceeds the anticipated use necessitated by the new subdivision.

The Lampton opinion, at 919 held:

 

“Public policy nevertheless requires that the one who develops his land for a profit also may be required to bear the costs of additional public facilities made necessary by the development. . . .The intent of dedication is not to put an unreasonable burden on the landowner, but to permit him to develop his land without putting an unreasonable burden on others.  So long as the taking of a portion of the land, whether on the exterior or from the interior, is based upon the reasonably anticipated burdens to be caused by the development, the dedication requirements as a condition precedent to plat approval are not an unconstitutional taking of land without just compensation.”

 

Different planning units adopt unique subdivision regulations.  Regulations such as the Jefferson County “Metropolitan Subdivision Regulations” provide a simplified approval procedure for what is defined as a “minor subdivision”, as contrasted with the procedure for a “major subdivision.”  The minor subdivision procedure in Jefferson County accommodates small and routine subdivisions with few lots, which usually do not require detailed review.  For example, where a property owner sells a strip of land to a contiguous property owner or where a single site is divided into five or fewer lots, a detailed plan review is often unnecessary.  The procedure for processing a minor subdivision is far simpler than for a major subdivision.  In addition to the administrative approval required of the Planning Commission staff, approval of a minor subdivision in Jefferson County must also be obtained from the appropriate Department of Public Works, Metropolitan Sewer District, Fire Department and additional agencies as required, if special circumstances warrant.

The Metropolitan Subdivision Regulations define a “Minor Subdivision” as:

A subdivision of land into no more than five tracts or lots, provided that such subdivision does not involve any new public street.  Further division of an approved minor subdivision (exceeding the total of five lots in any twelve month period) may require the subdivider to proceed under the provisions governing major subdivisions.

 

The Metropolitan Subdivision Regulations define “Major Subdivision” as:

 

Any subdivision not classified as a minor subdivision.

Although KRS 100.281 requires that subdivision regulations be based on the Comprehensive Plan, the court in Wolf Pen Preservation Assn., Inc. v. Louisville & Jefferson County Planning Commission, Ky. App., 942 S.W.2d 310, 312 (1997) rejected an argument that a subdivision plat approval was illegal because the local subdivision regulations were inconsistent with the Comprehensive Plan.  The proposed subdivision was located in a zone allowing up to 4.84 dwellings per acre.  The developer’s proposal was for 2.72 dwellings per acre.  The developer’s opponents argued that the Planning Commission, in approving the subdivision plat, should consider the Comprehensive Plan’s reference to the “aesthetic effects” of differing densities on nearby properties which were zoned to permit only 1.08 dwellings per acre.  The Court of Appeals rejected all arguments of the opponents that Jefferson County’s subdivision regulations which permitted the proposed development, were unlawful because they were inconsistent with portions of Jefferson County’s Comprehensive Plan.  The court also rejected the opponents’ argument because that the approval of the subdivision plat was a “ministerial act” and that under Kentucky law the Comprehensive Plan was to serve as a “guide to zoning” and that the subdivision regulations did not fail to comply with the Comprehensive Plan.

The Fayette Circuit Court held that a bank’s mortgage was void because of a failure of the developer to comply with KRS 100.277(3) regarding the division of property and the failure to record a final subdivision plat.  After the bank filed a foreclosure action, a subsequent purchaser of the property moved to dismiss the bank’s claim because the mortgage contained an erroneous legal description of property, which had not been divided by an approved subdivision plat recorded in Fayette County Clerk’s Office.  In its appeal the bank argued that a mortgage was not a “transfer or sale” of property and therefore, KRS 100.277(3) did not apply to its mortgage.  The Court of Appeals in First National Bank & Trust Co. of Nicholasville v. Carr Building, Inc., 1992 Ky. App., LEXIS 39 (1992) (opinion attached and withdrawn from publication) disagreed.  The Court held:

“[w]e think it is an unavoidable conclusion that the property in First National’s mortgage is ‘land composing a subdivision’ under KRS 100.277(3).  There is no argument on appeal that the property was not for sale, lease or building development.”

 

The case was remanded to the Fayette Circuit Court for a determination as to whether the subsequent purchaser and subsequent mortgagee had notice of the bank’s mortgage.  Because the property had subsequently been conveyed, the bank had no opportunity under KRS 100.292 to cure the problem resulting from the fact that the mortgaged property was not described by an approved subdivision plan.

In Conley v. City of Anchorage, Ky. App., 806 S.W.2d 404 (1991), the City of Anchorage challenged the Planning Commission’s approval of a subdivision plan.  The Planning Commission had approved the subdivision plan based on existing zoning regulations which were subsequently amended by the City.  The new regulations had been pending at the time of the Planning Commission’s decision.  The Court of Appeals rejected the City’s argument holding at p. 406 –

“. . . it was not the responsibility of the Commission to delay the approval and second guess whether the City Council of Anchorage would enact the proposed revised ordinances.  The Commission acted upon the subdivision plans based on the regulations in effect and controlling.  We believe that no effect could be given by the Commission to proposed revisions of a zoning ordinance which officials contemplated enacting at a future date.  ‘[T]he approval of subdivision plans is a ministerial act.’” (Emphasis in original).  Snyder v. Owensboro, Ky., 528 S.W.2d 663, 664 (1975).  “We find no error as a matter of law in the actions of the Commission.”

Because there is ample authority from the courts that approval of a subdivision is a “ministerial act” by the Planning Commission a case can be made that in the absence of a regulation requiring a public hearing that no public hearing regarding a subdivision approval is ever required. However, the Kentucky Supreme Court in Simpson v. Laytart, Ky., 962 S.W.2d 392, 393 (1998) affirmed an order of the Bourbon Circuit Court which had ordered a local planning commission to conduct a “full evidentiary hearing” regarding whether the agricultural use exemption applied.    It may be that a public hearing by a planning commission is only necessary if a developer claims to be exempt from subdivision regulations and an evidentiary hearing on the exemption is necessary and warranted.

E. KEEPING AWAY FROM PROHIBITED LAND DIVISION

The only sure way to avoid prohibited land division is to conform with the requirements of state law and local subdivision regulations.  KRS 100. 291 grants power to the Planning Commission to sue in Circuit Court to enjoin any illegal division of property.  That statute, enacted in 1966, provides:

“The Planning Commission shall have the power to apply for an injunction against any type of subdivision construction by the subdivider or the landowner, re subdivision’s regulations have been violated.”

 

Two recent cases illustrate the authority of Kentucky courts to prohibit illegal subdivisions.

In Sizemore v. Madison County Fiscal Court, supra, a developer proposed to develop a 97 acre Madison County farm into a 523 lot mobile home park.  Streets, water lines and sanitary sewers were proposed, as well as, a garbage disposal system.  The developer argued that its proposal was exempt from “subdivision law” because it had no intention of selling the divided lots and only intended to lease them for use by mobile homes.  The Fiscal Court which had the sole authority to approve subdivisions filed a lawsuit and was granted summary judgment by the Madison Circuit Court finding the development was in fact a “subdivision”.  The Kentucky Court of Appeals affirmed, holding that KRS 100.273(2) applied and makes clear that a subdivision of property could be involved whether the property was offered for sale, lease or building development.  The Court concluded that before the development could proceed, the developer must seek and obtain subdivision approval from the Madison County Fiscal Court.

A Woodford County developer proposed to subdivide a 3.5 acre tract into six single family lots served by septic tanks.  A local health department regulation prohibited subdivisions of more than three lots served by septic tanks.  The developer filed an action in the Woodford Circuit Court contending that because the health department regulation contained the word “may” and because approval of subdivision was a ministerial act, the Planning Commission would have to exercise “discretionary authority” to deny the subdivision and the sewage disposal was only within the province of state government.  The Kentucky Supreme Court in Stringer v. Realty Unlimited, Inc., 2002 Ky., LEXIS 181, 186 (2002) (attached) affirmed the decision of the trial court and reversed a decision of the Court of Appeals holding:

”The phrase ‘may not be permitted’ in Section 503.4F of the Woodford County Zoning Ordinance affords the Commission no discretion to permit more than three lots with septic tanks draining into the same general area.  Thus, use of the word ‘may’ in that context does not implicate Section 2 of our Constitution.”

 

KRS 100.291 gives the Planning Commission the right to seek injunctive relief “against any type of subdivision construction by a subdivider or the landowner where a subdivision’s regulations have been violated.”  Statewide Development Co. v. Lexington Fayette Urban Co. Gov’t., Ky. App., 821 S.W.2d 97 (1991) contains a good discussion about the public purpose for approval of all subdivisions.  At p. 99-100, the Court held:

“The purpose of KRS Chapter 100 is land use planning and control.  McCord v. Pineway Farms, Ky. App., 569 S.W.2d 690, 692 (1978).  It is apparent that KRS 100.277 prohibits dividing property and selling parcels of land without an approved, recorded map — a plat — of the subdivision.  This statute was intended to insure that subdivision development complies with local zoning laws and that streets and services are adequate to meet the increased demand brought on by development.  It clearly limits development of subdivisions, and even streets therein, by property owners, but it does not prohibit direct development of streets and roads by governments.”

 

F .AVOIDING LOCAL LAND DIVISION REGULATION –

METHODS TO USE

 

In some Kentucky communities there are no subdivision regulations.  Unless a division of land is exempt from local and state subdivision regulations, avoidance of local subdivision regulations is not possible.  Limited circumstances may be available for the division of land without an approved subdivision.  KRS 100.111(22) which defines “Subdivision” exempts division of property into two parcels in counties which do not have a city of the first, second or third class, an urban county government or consolidated local government.  In addition, land divided for “agricultural use” and not involving a new street shall not be deemed a subdivision in all counties.  KRS 100.111(22).

“Agricultural use” generally is defined as a tract of at least five contiguous acres used for the production of agricultural products, including provision for dwellings of persons and their families who are engaged in agricultural use on the property, but not including residential building development for sale or lease to the public.  In addition, regardless the size of the tract, licensed small wineries and licensed farm wineries are exempt from subdivision regulations regardless of their size.

Simpson v. Laytart, supra, involved a long battle over the plans of a Woodford County property owner to sell a five acre tract off his farm.  Based on an affidavit of the buyer, the Bourbon County Planning Commission exempted the transaction from subdivision requirements.  Fifteen property owners filed suit claiming the Planning Commission had failed to reasonably inquire into the proposed agricultural use and had acted arbitrarily and capriciously.  The suit sought a court order requiring the Planning Commission to conduct an evidentiary hearing, before approving the division of land for agricultural purposes.  Eventually, the Planning Commission held an evidentiary hearing as required by the Bourbon Circuit Court receiving evidence on whether the proposed division was for “agricultural or residential use.”

G .BE AWARE OF THE PENALTIES AND BE READY

WITH THE REMEDIES TO SOLVE THEM

 

The statutory scheme for “subdivision management” established by Chapter 100 imposes a series of obligations for land development in jurisdictions which have approved subdivision regulations.  KRS 100.277(2) prohibits the subdivision of land without prior written approval by the Planning Commission and prohibits the County Clerk from recording Subdivision Plats without such approval.  KRS 100.277(3) provides that any deed or instrument of transfer of property in a subdivision which has not received the final approval of the Planning Commission “shall be void and shall not be subject to be recorded unless the Subdivision Plat subsequently receives final approval of the Planning Commission, but all rights of such purchasers to damages are hereby preserved.”  If land is sold in violation of local subdivision regulations and state statutes it appears that those mistakes can be corrected and titles to the void transfers can be salvaged if the procedure set forth in KRS 100.292 are followed.  That statute provides:

“When it has been discovered that land has been sold or transferred, or that a contract has been entered into for the sale or transfer of land in violation of the provisions of this Chapter pertaining to the regulation of subdivisions, the owner or owners of record shall file plats of the land in accordance with this Chapter.  When land is sold or transferred, or a contract has been entered into for the sale or transfer of land in violation of this Chapter, the land shall be governed by the subdivision regulations both prior to and after the platting of the land by the owner of record as if a plat had been filed in accordance with the provisions of this Chapter pertaining to subdivision regulations.  Plats filed pursuant to this section may be filed by the last transferee and the chain of title including holders of deeds which may otherwise be void under KRS 100.277(2).”

 

There are no published Kentucky cases which address specifically KRS 100.292 (the “saving statute”) and KRS 100.277(3).  The closest case is First National Bank and Trust Company of Nicholasville v. Carr Building, Inc., supra.  In that case, the Kentucky Court of Appeals held that a bank mortgage was void pursuant to KRS 100.277(3) where it was placed on property which was part of an illegal division of land which had not been approved or recorded in the County Clerk’s office.  The Court of Appeals rejected the bank’s argument that the mortgage was not a “transfer” under KRS 100.277(3).  The bank argued that KRS 100.292 could be used to cure the illegal division of land by recordation of a subdivision plat.  The Court of Appeals rejected that argument because KRS 100.292 does not address the situation of a transferee using the “saving provision” of KRS 100.292, after the land in question had been subsequently transferred or sold to a third party.

Reference should also be made to KRS 100.277(5) which provides:

“Any instrument of transfer, sale or contract which would otherwise have been void under this section and under any of its subsections previously is deemed not to have been void, but merely not subject to be recorded unless the subdivision plat subsequently receives final approval of the planning commission.  This subsection shall not apply to instruments of transactions affecting property in counties containing cities of the first class, in consolidated local governments created pursuant to KRS Chapter 67C or in urban-counties created pursuant to KRS Chapter 67A.”

 

The validity of KRS 100.277(5), which was amended in 2002 to accommodate the merged government in Jefferson County, has not been tested in any appellate case.  It appears to conflict with KRS 100.292 the “saving statute” for illegal division of property.  Claims for damages relating to illegal division of property are preserved, even if an approved subdivision plat is recorded later.  KRS 100.277(3).  Damage claims shall not be the subject of this presentation.

A developer’s conformity with subdivision plans however is critical.  For example, in Herron v. Boggs, Ky., 582 S.W.2d 643 (1979), the Kentucky Supreme Court ordered a developer to remove a house and fishing lake he had constructed on a 9.7 acre tract that was part of a 1959 subdivision.  The 9.7 acre tract was designated as a “PARK” on the 1959 Subdivision Plan.

Enforcement provisions contained in local subdivision regulations are important.  They detail what actions might be taken by local zoning enforcement officers or others in the event of a violation of local subdivision regulations.  Clearly, pursuant to KRS 100.291, the Planning Commission has the power to seek injunctive relief to restrain property divisions and activities in violation of subdivision regulations and to restrain violations of subdivision regulations.  Zoning enforcement officers by local regulation may also be authorized to issue “stop” orders to prevent violations of the subdivision regulations.  KRS 100.991 provides for criminal fines of $10 to $500 per day for violations of KRS 100.201 to 100.347.  Each day a violation is considered a separate offense under that statute.  A copy of Jefferson County’s Enforcement Code found in Article 10 of its Subdivision Regulations is attached.

H. REGULATION: “BLACK AND WHITE” – WHAT DO YOU DO

WHEN IT IS GRAY AND APPROVAL IS DENIED?

 

KRS 100.281(1) imposes an obligation on the Planning Commission or its designee to approve or disapprove all preliminary and final subdivision plats within ninety (90) days of their submission.  Because it is well established that approval of a subdivision plat is a “ministerial act”, seeWolf Pen Preservation Assn., Inc. v. Louisville & Jefferson County Planning Commission, et al., supra, and Snyder v. Owensboro, Ky., 528 S.W. 2d 663 (1975), an argument may be available that the failure of the Planning Commission to act within ninety days is tantamount to an approval of the subdivision.  This is particularly true since there is no statutory requirement for a public hearing in connection with requests for approval of subdivisions.  In 3A Kentucky Practice, § 27.1 (Supp.) Fn. 1, author William D. Bardenwerper contends

“In fact, because the approval or disapproval of a subdivision is held to be a ministerial act, holding a hearing may well constitute a violation of an applicant-subdivider’s right to due process of law.  Clearly, no legal purpose is served in holding a public hearing.”

 

After the Planning Commission takes final action on a subdivision application any aggrieved party must appeal within thirty (30) days pursuant to KRS 100.347(2) by filing suit against the Planning Commission, the property owner of the subject property and all applicants.  KRS 100.347(2)(4).

KRS 100.347(2) provides in part:

“Any person or entity claiming to be injured or aggrieved by any final action of the Planning Commission shall appeal from the final action to the Circuit Court of the county in which the property, which is the subject of the commission’s action, lies.  Such appeal shall be taken within thirty (30) days after such action.  Such action shall not include the commission’s recommendations made to other governmental bodies.  All final actions which have not been appealed within thirty (30) days shall not be subject to judicial review.  . . .  The Planning Commission shall be a party to any such appeal filed in the Circuit Court.”

 

KRS 100.211(7) requires the Fiscal Court of legislative body to take final action upon a proposed zoning change within ninety (90) days of the date the Planning Commission takes it final action.  The Kentucky Supreme Court in Evangelical Lutheran Good Samaritan Society v. Albert Oil Co., Ky., 969 S.W.2d 691 (1998) held that the failure of the Fiscal Court to take action on the Planning Commission’s recommendation to rezone rendered the Planning Commission’s recommendation “final” and deprived the Fiscal Court of authority to act further.

By analogy, in a mandamus action a developer of a subdivision could argue that if the Planning Commission fails to act within ninety days to approve a preliminary plat or final subdivision plat, then the Planning Commission loses authority over the matter and the proposed plan shall be deemed “approved.”

Kentucky case law is clear that the rules regarding appeal of administrative decisions must be strictly followed because an appeal of an administrative decision is a matter of “legislative grace and not a right”.  Taylor v. Duke, Ky. App., 896 S.W.2d 618, 621 (1995).  In that case, Morgantown zoning officials failed to provide notice to adjoining property owners of a proposed subdivision which was approved.  Had notice been given by the Planning Commission, KRS 100.347(2) would have made an appeal mandatory.  The Taylor case involved another opportunity for appeal by the objecting neighbors.  When the neighbors learned that a building permit had been issued by the local Building Department a second opportunity to appeal was created.  The Court of Appeals affirmed the decision of the trial court that the neighbors’ complaint filed more than thirty days after they knew a building permit had been issued was barred by law, citing KRS 100.347(2).

If a Planning Commission fails to approve a Preliminary Plat for a Subdivision, Kentucky courts appear to recognize the right of the developer to appeal that final action to the local Circuit Court.  Stringer v. Realty Unlimited, Inc., supra.  KRS 100.347(5) defines a final action of the Planning Commission as follows:

“(5)  For purposes of this Chapter, final action shall be deemed to have occurred on the calendar date when the vote taken to approve or disapprove the matter pending before the body.”

 

            The Stringer v. Realty Unlimited, Inc., opinion supra, supports the notion that the developer may appeal to the Circuit Court from an action of a Planning Commission denying a Preliminary Subdivision Plan.  Conversely, opponents of the Preliminary Subdivision Plan, may have an obligation to appeal approval of a preliminary plan within thirty days of the final action of the Planning Commission.  Such appeals have been recognized.  See, Bellemeade Co. v. Priddle, Ky., 503 S.W.2d 734 (1974).

[1]Copies of applicable Kentucky Statues are attached.

[2]   For purposes of this discussion reference to the Planning Commission also refers to the authority having jurisdiction to approve a subdivision.