The Land Subdivision Process

J. Bissell Roberts

 1. THE LAND SUBDIVISION PROCESS

  

Subdivision regulations may be adopted by a Planning Commission (except where an urban-county government is involved) that has completed “the objectives, land use plan, transportation plan, and community facilities elements of a comprehensive plan”.  KRS 100.273(1).  Urban-county governments based on a recommendation of a Planning Commission can adopt subdivision regulations.  In counties that do not have a planning unit or planning program, subdivision regulations may be adopted by the Fiscal Court.  KRS 100.273(2).

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, provisions for pedestrian and vehicular access, layout of lots, provisions for easements, recreational areas, hazardous areas and areas subject to flooding or drainage problems.  Subdivision regulations regulate the subdivision plan, which is the layout for a particular local development when in place.  Subdivision regulations apply to all residential, commercial, industrial and other developments, which are not by law 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 Chapter 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;

A. SUBDIVISION ISSUES

1. Platting Process: City, County and Township

Local subdivision regulations should be carefully consulted for specific details on the platting process and approval process.   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 sections of the subdivision, as it is actually developed.  KRS 100.277 requires that the Planning Commission’s written approved final plan be recorded in the County Clerk’s Office at the expense of the developer. Once approved, a record plat not exceeding 24 inches by 36 inches should be recorded by the developer and indexed by the County Clerk.  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 a right to review 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 a Preliminary Plat.  KRS 100.287.

Approval of a final 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, Ky. App., 899 S.W.2d 517 (1995) 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 subdivision approval it is a ministerial act, usually there is no reason for a public hearing.

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 sections 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 properly recorded.

Different planning units adopt unique subdivision regulations.  Regulations such as the Jefferson County “Metropolitan Subdivision Regulations” provide a simplified approval process for what is defined as a “minor subdivision”, as contrasted with the more complex 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 an adjoining owner or where a single site is divided into five or fewer lots, a detailed plan review is often unnecessary.  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 Department of Public Works, Metropolitan Sewer District, local 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 local 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 local subdivision regulations conflicted with the local 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 by the opponents that Jefferson County’s subdivision regulations which allowed the proposed subdivision, 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 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 land and its 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) 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 (1990), 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 later amended by the City.  The new regulations were pending at the time of the Planning Commission’s decision.  The Court of Appeals rejected the City’s argument holding at p. 406 –

. . .[I]t 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 for subdivisions applied.    Perhaps a public hearing by a Planning Commission is necessary only if a developer claims to be “exempt” from subdivision regulations and an evidentiary hearing on the “exemption” is necessary and warranted.

Snyder v. Owensboro, Ky.,  528 S.W.2d 663, 664 (1975) held that approval of subdivision plats “is a ministerial act” and this was made obvious by KRS 100.281 which provides that the Planning Commission may delegate to its secretary of other officer or employee the power to approve subdivision plans.  Snyder involved plans for a 21 acre subdivision.  The Planning Commission denied the subdivision plan primarily because the subdivision was bordered by a public road which made two 90° turns at the corners of the subdivision.  Local zoning regulations required that any reason for disapproval of a subdivision plan must be made in “clear and concise terms” referring to the requirements of law or the regulations.  On appeal, the Court of Appeals remanded the case holding that the subdivision should have been approved, because in its rejection the Planning Commission failed to cite any specific law or regulation as the reason for denial.  The Court was unwilling to consider reasons argued for the first time on appeal, which were not part of the Planning Commission record.

A Woodford County property owner filed an application with the local Planning Commission to subdivide a 3.5 acre tract into six .5 acre single-family residential lots.  Local regulation 503.4F provided:

In keeping with the intent of this section more than 3 lots draining into the same general area utilizing septic tank disposal may not be permitted.

 

The Planning Commission denied the subdivision application and the property owner filed suit claiming that Section 503.4F violated §2 of the Kentucky Constitution by authorizing the Commission to exercise “discretionary” authority, when approval of a subdivision plat is a “ministerial” act, citing, Snyder v. Owensboro, Ky., 528 S.W.2d 663, 664 (1975).  The Woodford Circuit Court rejected this argument, but the Kentucky Court of Appeals accepted it.  The Kentucky Supreme Court in Stringer v. Realty Unlimited, Inc., Ky. App., 97 S.W.3d 446 (2002) granted discretionary review.  The Supreme Court reversed holding that Section 503.4F does not say “may” but says “may not”.  Under the circumstances the Planning Commission had no discretion.  The Supreme Court held:

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 in to the same general area.  The use of the word “may” in that context does not implicate Section 2 of our Constitution.

 

2. Exemptions – Lot Splits, Industrial Lands

The only sure way to avoid a 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 file suit 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, where a subdivision’s regulations have been violated.

 

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 are 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 Bourbon County property owner to sell five acre tracts 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.”

Two recent cases illustrate the authority of Kentucky courts to prohibit illegal subdivisions.         In Sizemore v. Madison County Fiscal Court, Ky. App., 58 S.W.3d 887 (2000), 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 Courtwhich 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., supra 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.

3. Inspections, Dedications and Vacations

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. A tenant cannot make a statutory dedication such as a dedication of a roadway, because it does not own the property.  See, Bluegrass Manor v. Mall St. Mathews Ltd. Partnership, Ky. App., 964 S.W.2d 431 (1998).

In some situations, the Planning Commission may require a reservation not to exceed two (2)  years for parks, open space, school and other public uses.  KRS 100.281(4).  In other cases, a developer may voluntarily elect to reserve land for an indefinite period for open space, parkland or future construction of a public school.

In the past, legislative bodies frequently declined to accept maintenance responsibility for dedicated public roads.  KRS 100.277(4) now provides –

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 in Lampton 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).

 

 

An Oldham County case involved requirements imposed by the Planning Commission that a developer dedicate additional right-of-way on an existing road and that a condition of plat approval was that the Fiscal Court accept the improvement of the county road.  In Lampton v. Pinaire,supra,  the Court of Appeals remanded the subdivision case to the trial court with directions.  The appeals court (p. 919) directed the trial court to determine from the evidence “whether the dedication of additional right-of-way required by the subdivision regulations is reasonable in consideration of any reasonably anticipated future traffic burden which the development and subdivision will impose on the existing road.”  If the dedication requirement was not arbitrary or unreasonable then the trial court should require its dedication as a prerequisite to plat approval.

The Lampton opinion at p. 910 provided:

We subscribe to the view expressed by the trial court that the planning and zoning commission has no control over the construction or improvement of county roads.  That is a function of the fiscal court.  The Planning Commission conditioned the approval of the Malama Farm Subdivision plat contingent upon acceptance by the fiscal court Goshen Lane being improved with a twenty-four foot wide pavement.

.    .    .

            The attempt to attach, as a condition of plat approval, a requirement the fiscal court accept the improvement of the County road was an unlawful exercise of power by the commission and the condition was properly invalidated.

 

In Henry Fischer Builder, Inc. v. Magee, supra, a property owner argued that a preliminary plan had created a common law dedication by the developer and the developer was estopped from modification of the preliminary plan.  The Court of Appeals rejected that argument citing KRS 100.281(1) for the proposition that only “final plats” could be recorded.  At p.305 the Court held:

[O]nly upon final approval by the Planning Commission does a public or private entity acquire rights in an offer of dedication made on a plat.  See KRS 100.285(2)(b).

 

            Kemper v. Cooke, Ky. App., 576 S.W.2d 263 (1979) involved issues as to whether a dedicated street was a “public street.”  The evidence revealed that in 1966 a developer had dedicated a portion of the development for a “public street.”  The street had never been taken into the County Road system, nor had the Hardin County Fiscal Court ever exercised control over or maintenance of the street.  The plaintiff filed a lawsuit seeking removal of an obstruction at the end of the dedicated street where it otherwise would have connected to a state highway.  The Hardin Circuit Court ordered the removal of the obstruction.  On appeal, the Court of Appeals reversed finding that the street was “not a public street and that the plaintiff as a private citizen had no standing to contest the obstruction.”  In 1979, KRS 178.010(1)(b) provided in part:

“County roads” are public roads which have been accepted by the fiscal court of the county as part of the county road system …

 

Although a street may be reserved to the public use by approval of the Planning Commission and recording of a record plat pursuant to KRS 100.277 and 100.283, the opinion held:

[I]t must still be accepted by the fiscal court through the procedures in chapter 178 before it becomes a street which is open for use by the public generally.  Acceptance by the County is not mandatory.

 

The Kemper opinion concluded that although the developer had dedicated the street for public purposes and it no longer belonged to any individual that mere dedication did not make it part of a public road system to be maintained by the government.  Kemper, a member of a nearby church argued that the obstruction forced him to take a long route to his place of worship.  The opinion held that for Kemper to have standing he must be able to show damages he suffered because obstruction was different from those suffered by the public as a whole.  The opinion found Kemper lacked “standing” and the street was not a public street.

As a rule streets are dedicated on a final subdivision plat which have been constructed, inspected and approved in accordance with subdivision regulations.  The streets shall be automatically accepted for maintenance by the legislative body forty-five days after the final inspection and approval.  KRS 100.277(5)

 

 

4. Private or Public Streets? Which Choice and When?

 

            Occasionally a developer has a choice with regard to the use of private streets or public streets within a subdivision.  Usually this choice is based on present or future financial considerations.  One benefit of dedicating a street as a public street is that within forty-five (45) days of the approved final inspection of the street, the local government is thereafter responsible for maintenance of the public street.  KRS 100.277(4).  This is problematic, however, in communities where adequate public funds are not available to maintain streets in the condition desired by neighborhood residents.  This is one reason a developer may prefer to construct private streets maintained by a homeowner’s association, i.e. to insure the availability of funds for future street maintenance.

In general, franchised public utility companies, including cable television companies, have the right to use dedicated public rights-of-way for installation of utilities.  This can lead to a situation where “public streets” are repeatedly cut and patched for utility installation in a manner than shortens the useful life of the street.  Therefore, some developers prefer to provide adequate easements for public utilities and utilize “private streets”, which are not by law, available to franchise owners for installation of utilities.  In some communities, public utilities insist that new construction of utilities occur outside areas dedicated for public streets.  This can create a problem for a developer of a dense subdivision who will lose lots if the streets are dedicated as public streets.  A compromise position for the developer and the public utilities may be to install private streets with utilities constructed within the right-of-way of the private streets.

Another reason a developer may prefer to construct private streets versus public streets is to retain greater control over traffic controls and the design of the surface of the street.  Some local governments object to speed humps or speed bumps for various reasons including concerns about liability for damage to vehicles.  If private streets are installed, there are seldom objections to installation of speed humps or speed bumps.  This is not the case with public streets.

5. Extraterritoriality – When Invoked

 

            A city planning unit or joint city planning unit may exercise extraterritorial jurisdiction for subdivision regulation and other regulation up to five (5) miles from a city’s boundary, but not beyond a county boundary only with the consent of the Fiscal Court.  In rare cases where extraterritorial jurisdiction of planning units overlaps the boundary would be the mid-point between the two planning units.  KRS 100.131.

In March of 1970 the Hardin County Fiscal Court pursuant to KRS 100.131 granted the City of Elizabethtown Planning and Zoning Commission “extraterritorial jurisdiction” extending two miles into the unincorporated county from the Elizabethtown city limits.  A month later the Commission accepted that jurisdiction.  At the time KRS 100.131 provided:

An independent city planning unit may exercise extraterritorial jurisdiction for purposes of subdivision regulations and with the consent of the fiscal court, other regulations up to five (5) miles from all points upon the city’s boundary, but not beyond the county boundary, nor within the boundary of any city not in such planning unit, provided, however, that where the extraterritorial jurisdiction of planning units overlap, the boundary shall be midway between them.  The jurisdiction of joint and regional planning units shall be coterminous with the political boundaries.  Nothing herein, however, shall prevent any planning unit from making planning studies located outside its jurisdiction. (1966)

 

In Elizabethtown v. Hardin County Fiscal Court, Ky. App., 551 S.W.2d 252, 253 (1977), the Kentucky Court of Appeals affirmed a lower court ruling that the Fiscal Court in March of 1976 properly withdrew the “extraterritorial jurisdiction” it had granted the Elizabethtown Planning Commission in March of 1970 and the continuing “extraterritorial jurisdiction” was dependent upon the consent of the Fiscal Court.  The opinion (p. 253) concluded:

This Court has held a Fiscal Court acting in a legislative capacity may at any time revoke a prior order where no contract rights are affected.  Crittenden County Court v. Shanks, 88 Ky. 475, 11 S.W. 468 (1889).

 

The Court of Appeals held the Fiscal Court acted properly withdrawing the extraterritorial planning and zoning jurisdiction from the City of Elizabethtown Planning Commission.

B. PLANNING COMMISSIONS

1. City vs. County vs. Regional – Powers and Process

In a community with subdivision regulations, it is important to determine what entity has the legal authority to approve a proposed subdivision.  That authority may be vested in (a) the Planning Commission, KRS 100.277(1), or (b) the Fiscal Court, KRS 100.273(3).

KRS 100.111(15) provides the following definition of a “Planning unit”:

[M]eans any city, county or consolidated local government or any combination of cities, counties, or parts of counties or parts of consolidated local governments engaged in planning operations.

 

There are twenty-seven (27) counties that have full joint planning and zoning commissions; twenty-four (24) counties that have joint Planning Commissions, but not countywide zoning; separate city zoning commissions and combined city/county zoning commissions.  Although subdivision regulations can extend five (5) miles beyond the boundaries of a city, subdivision regulations cannot extend beyond the boundaries of a county.

The significance of knowing what entity has the right to approve a subdivision was illustrated by Sizemore v. Madison County Fiscal Court, supra,.  In Sizemore, a developer proposed 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 by Fiscal Court.  The informal approval obtained did not meet the legal requirements of the local subdivisions regulation or subdivision approval and the developer’s operation of the subdivision was enjoined because it did not have Fiscal Court’s approval.

2. Subdivision is Not Zoning and Vice Versa

Subdivision regulations regulate the design and layout of land being divided in those cities and counties that have adopted subdivision regulations.  Subdivision regulations are in addition to any local zoning regulations which prescribe the permitted uses in an area, i.e. residential, commercial, industrial, governmental, agricultural, etc.

All preliminary and final plats for subdivisions must be approved or disapproved by the Planning Commission within ninety (90) days.  KRS 100.281(1).  A Planning Commission may delegate to it’s secretary or any other officer employed by the commission the power to approve subdivision plats in accordance with local regulations.  KRS 100.281(1).  Approval of a subdivision plat by the Chairman of the  Planning Commission or its duly authorized representative is a “ministerial act”.  Kelly v. Cook, supra, held that if a subdivision plat conforms with zoning regulations and subdivision regulations it should be approved.

There is no statutory requirement for the public hearing to be held for approval of a subdivision plat.  Since approval of a subdivision is a ministerial act, ordinarily there is no reason for a public hearing, as contrasted with the statutory requirement for a public hearing on any proposed zone change.  The county clerk is prohibited from recording the subdivision plat until the Planning Commission approval has been obtained.

The uses to which land may be put in a district that has been zoned residential, commercial, industrial or agricultural, and the authority to establish zones and uses permitted within zones is by statute given to the local legislative body.  Zoning is exercised through a zoning/hearing process and by a local legislative body and not by the local Planning Commission.  Sladon v. Shawk, Ky. App., 815 S.W.2d. 404 (1991).  If a subdivision application does not comply with local zoning laws, then it should be denied by the Planning Commission.  Statewide Dev. Co. v. Lexington-Fayette County Urban Gov’t., supra.

The legal standards and findings necessary for approval of a zone change are set forth in KRS 100.213.  The legal requirement for at least one public hearing by the Planning Commission in connection with any zone change application [KRS 100.211(3)] differs from the procedures that are required for approval of a subdivision, which does not require a public hearing.

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.

For many reasons Planning Commissions may opt to hold a public hearing in connection with a subdivision application.  Reasons for a hearing include investigations, which frequently involve adequacy of sewers, utilities, roadways and dedications, as well as, conformance with subdivision regulations.

Because approval of a subdivision is a “ministerial act”, subdivision approval does not require a public hearing.  It is important to consult local regulations to determine what they provide with respect to public hearings in subdivision cases.  Under Jefferson County’s new Land Development Code, the Planning Commission may disapprove a subdivision plan and if the plan is disapproved, the Planning Commission shall state in writing its reasons for the disapproval.  Those regulations allow the subdivider to then reapply if he wishes to create a subdivision.  See, Land Development Code, Chapter 7, Section 7.2(130)(D)(1 & 2). 0.281(7)(b).