The Land Subdivision Process
J. Bissell Roberts
I. 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
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
“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
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.
Different
planning units adopt unique subdivision regulations. Regulations such as the
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
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.
. . .[I]t was not the responsibility of the Commission to delay the
approval and second guess whether the City Council of
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
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.
The
phrase “may not be permitted” in section 503.4F of the
2. Exemptions – Lot
Splits,
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
“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
Two
recent cases illustrate the authority of
A
The
phrase ‘may not be permitted’ in Section 503.4F of the
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,
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,
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.
[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
. .
.
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.
“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
In
March of 1970 the
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
The Court of Appeals held the
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
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
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.
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
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