Request By:
Hon. Sam Boyd Neely, Sr.
City Attorney
Neely & Brien
238 North 7th Street
P.O. Box 708
Mayfield, Kentucky 42066
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of January 4 in which you relate that the City of Mayfield, a city of the third class, has adopted planning and zoning pursuant to Chapter 100 KRS. You further relate that an application has been filed with the planning commission for a zoning change of a particular piece of property by a person having an option to purchase said property. The question is raised as to whether the optionee can on his own legally request the zoning change without the property owner joining in the request.
Our response to your question would be in the negative. KRS 100.211(1) reads in part as follows:
"A proposal for amendment to any zoning regulation may originate with the planning commission of the unit, with any fiscal court or legislative body which is a member of the unit, or with the owner of the property in question." (Emphasis added.)
The above statute confines the manner in which applications of zoning changes may be made to the legislative body, the commission itself, or the property owner. The words "property owner" has been held to mean the person or persons holding legal title to the property. See
City of Middlesboro v. Evans, 261 Ky. 303, 87 S.W.2d 352 (1935). See also
Henry Bickel Co. v. Texas Gas Transmission Corp., Ky. 336 S.W.2d 345 (1960).
An option to purchase real estate is not a conveyance, it is merely a unilateral contract whereby the privilege is given to the optionee by the owner to purchase the property. It gives the optionee no legal right or interest in the property until he accepts the privilege by exercising his option within the time specified. See
Larson v. Woods, 75 N.D. 9, 25 N.W. 2d 100;
Tyler v. Tyler, 111 Ind. App. 607, 40 N.E. 2d 983;
Wilson v. Metheny, 72 Ariz. 339, 236 P. 2d 34;
Wurdemann v. H. Jelem, 257 Minn. 450, 102 N.W. 2d 811.
As indicated above, an individual who merely holds an option to purchase a piece of property, cannot qualify as a "property owner" and therefore cannot make application for a zoning change under the terms of KRS 100.211. Neither, in our opinion, could a person holding a contract to purchase the property, since the contract itself does not vest title to the property in the person, until it is fulfilled and the property transferred by appropriate deed.