Request By:
Mr. Paul R. Tice
Planning Director
City of Elizabethtown
City Hall, 111 W. Dixie Ave.
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of March 5 in which you seek clarification of subsection (4) of KRS 100.203 which provides in effect that land used solely for agricultural purposes shall have no regulations imposed as to building permits, certificates of occupany, etc., for agricultural buildings. You specifically raise the question as to whether or not the above referred to statute pre-empts the right of zoning authorities to delegate zones in which agricultural use of land is allowed and those in which it is not allowed.
Our response to your question would be in the negative. The provisions of KRS 100.203 (4) simply provide that land zoned agricultural and used as such cannot have building restrictions imposed upon the construction of agricultural buildings. It does not mean that agricultural land cannot be rezoned for other uses. In this respect we refer you to McQuillin, Mun. Corps., Vol. 8, § 25.131, from which we quote as follows:
". . . It is within the discretion of the legislative zoning authorities to determine whether or not an area may be used for agricultural purposes, and to limit the extent of such uses. . . ."
Reference is also made to the case of McCord v. Pineway Farms. Ky.App. 569 S.W.2d 690 (1978), in which the court declared that 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.
Of course, the illustration that you give wherein a five-acre tract of land is and has been used for light agricultural purposes, would not be affected by the zoning change of this and other adjacent property to Residential 5 Zone and, as a consequence, the owner could continue to use his tract of land for agricultural purposes. This means in effect that it would become a so-called "nonconforming use" under the terms of KRS 100.253.