Request By:
Honorable John M. Lawrence
Attorney at Law
303 North Third Street
P.O. Box 189
Bardstown, Kentucky 40004
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of April 25 in which you request an opinion on behalf of the joint city-county planning commission of Nelson County. You relate the following facts and questions:
"Nelson County has county-wide subdivision regulations adopted pursuant to KRS Chapter 100. It is provided in these regulations that 'all lots shall front on an improved and approved public street or road for a minimum distance of sixty (60) feet . . ."
"KRS 100.111 (22) defines 'subdivision' as follows:
"'. . . the division of a parcel of land into three (3) or more lots or parcels . . . providing that a division of land for agricultural purposes into lots of parcels of five (5) acres or more and not involving a new street shall not be deemed a subdivision.'
"KRS 100.111 (20) defines 'street' as 'any vehicular way'.
"Question 1: Does the Planning Commission have power and authority to regulate frontage of agricultural tracts (5 acres or more) on county or state maintained roads? Or, stated differently, if there is no new street being created, and a farm is divided into 1 or more agricultural tracts, does the Planning Commission have power and authority under KRS Chapter 100 to enforce the minimum 60 foot frontage requirement?
"Question 2: Does the Planning Commission have power and authority under KRS Chapter 100 to prohibit the sale and division of agricultural tracts which front on private existing easements or roadways where no new street or roadway is being created?
"Question 3: May the Planning Commission pass a valid regulation requiring creation of private reserve strips of minimum width to serve farm tracts which do not front on public roads?"
It is apparent from your letter and our phone conversation that you are simply raising the question of whether or not subdivision regulations, and, for that matter, zoning regulations enacted by the county, would be applicable to the facts referred to in your questions where the land involved is simply the division of agricultural tracts of five (5) acres or more that do not involve a new street. In other words, would the division of agricultural land in this manner constitute a subdivision per se or land subject to county zoning. Our response to this would be in the negative where no new streets are involved and the division is strictly for agricultural purposes.
However, as concluded in the case of McCord v. Pineway Farms, Ky. App. 569 S.W.2d 690 (1978), the division of agricultural lands could become subject to not only subdivision regulations but also general county zoning restrictions depending upon the actual and intended use of the land. The court in discussing the purpose of the legislature in exempting agricultural land from zoning regulations declared that:
". . . Clearly, the legislature wished to exempt the legitimate farmer who divides part of his farm real estate among the members of his family. The entire plan of KRS Chapter 100 is a scheme for land use control. The exception in KRS 100.111(22) is designed to insure that any division of agricultural land is made for the purpose of protecting agricultural interests. . . ."
"The trial court committed reversible error when it ruled that the Woodford County Zoning ordinance's density requirements for agriculturally zoned land did not apply to the farm now divided as Pineway Farms. Since Pineway Farms is located in an A-1 agricultural zone, it is subject to the county zoning ordinance, which restricts development according to ownership, purpose and density. It would appear that the proposed land division violates the ownership and purpose provisions, and exceeds the density requirements of the ordinance. . . . Additionally, the county zoning ordinance limits the construction of residences on agriculturally zoned lands to farm dwellings, occupied by farm owners. If the proposed division is not composed of farms, then the residences constructed thereon are not farm dwellings, and the developers cannot convert residential tracts into farms by simply calling them farms. . . ."
We might also mention that under KRS 100.203(4) the county cannot enforce zoning regulations involving land used solely for agricultural and similar purposes, which includes the size of yards where strictly agricultural buildings are involved, except in so far as set back lines are concerned which may be required for the protection of existing and proposed streets and highways.
Thus, in conclusion, our response to all three questions would be in the negative, unless or until the factual situation involving the so-called agricultural land changes to the degree, for example, indicated in the McCord case.