Request By:
Mr. James H. Pollitte
County Surveyor
P.O. Box 190
Maysville, Kentucky 41056
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
A person owning a 35 acre farm tract, with a house and barn on it, sold off a 9 acre tract. The residual tract of 26 acres will continue to be used for farming. The land is located in a county containing a third class city.
You question: Does this factual situation fit the definition of a "subdivision" as spelled out in KRS 100.111(22)? We do not think so.
Subsection (22) provides in part that a "subdivision" means the division of a parcel of land into three (3) or more lots or parcels "except in a county containing a city of the first, second or third class or in an urban county government where a subdivision means the division of a parcel of land into two (2) or more lots or parcels for the purpose, whether immediate or future, of sale, lease, or building development." etc. (Emphasis added).
In this situation the conveyance of one tract out of the 35 acre tract in reality constituted a division of the original parcel into two lots or parcels, since a residual tract was created simultaneously with the off conveyance. Obviously the off conveyance was for purposes of sale. As to the residual tract, it is merely a question as to whether the owner intends, whether immediately or in the future, to sell it, lease it etc. This is a subjective element, assuming that the owner has done nothing objectively or in the external world indicating one way or the other as to the purpose of sale, lease, or building development. Thus the answer would, under these assumptions, lie within the mind and intent of the owner. If he presently says he has no intention of leasing or selling the residual tract, immediately or in the future, we would have to take his word for it, assuming there is no external proof [outside of the owner's mind] of anything to the contrary.
Thus under the facts given, and under the assumptions made here, it is our opinion that the transaction is not a "subdivision", as defined in KRS 100.111(22), and as mentioned in KRS 100.277. The latter statute provides that no person or his agent shall "subdivide" any land before securing the approval of the planning commission of a plat designating the areas to be subdivided; and no plat of a "subdivision" of land within the planning unit jurisdiction shall be recorded by the county clerk until the plat has been approved by the commission and the approval entered thereon in writing by the chairman, secretary, or other duly authorized officer of the commission. So the definition of subdivision is critical in this context. See 56 K.L.J. 613.