Request By:
Lynn Jones, Mayor of Calvert City
Opinion
Opinion By: ANDY BESHEAR,ATTORNEY GENERAL;Laura C. Tipton,Assistant Attorney General
Opinion of the Attorney General
Lynn Jones, Mayor of Calvert City, Kentucky, requests an opinion of this office regarding the "agricultural supremacy clause" of KRS Chapter 100. Mayor Jones advises that Calvert City has property in residential zones that exceeds five (5) contiguous acres. Accordingly, Mayor Jones asks whether the agricultural supremacy clause allows a property owner automatically, upon his or her declaration, to convert five (5) contiguous acres to "agricultural use," and whether the "agricultural use" classification takes priority over earlier imposed zoning regulations.
Based on the guidance of
Zeigler v. City of Ft. Mitchell , No. 2002-CA002548-MR, 2004 WL 67686 (Ky. App. Jan. 16, 2004) (unpublished), we find that a property owner cannot avoid existing zoning regulations by a subsequent conversion of his or her property to "agricultural use" within the meaning of KRS 100.111(2).
First, a brief discussion of the "agricultural supremacy clause" is in order. "Chapter 100 of the Kentucky Revised Statutes is commonly referred to as the enabling act for planning and zoning."
Grannis v. Schroder , 978 S.W.2d 328, 330 (Ky. App. 1997). Within KRS Chapter 100, the "'agricultural supremacy clause' is not a specific clause in the text . . ., but a doctrine or thread that is woven throughout the Chapter."
Nash v. Campbell Cty. Fiscal Court , 345 S.W.3d 811, 817 (Ky. 2011). To wit, KRS 100.203(4) "exempts land used for agriculture from zoning regulations -- except for setbacks, use of flood plains, and mobile homes." Grannis , 978 S.W.2d at 330. Further, while KRS Chapter 100 generally "authorizes subdivisions of land, KRS 100.111(22) exempts land used for agricultural purposes not involving a new street from regulations on divisions of land." Nash , 345 S.W.3d at 817. Taken together, the statutes that make up the agricultural supremacy clause "do[] not simply make a farm a legal nonconforming use but take[] it outside the zoning ordinances' jurisdiction, although not outside the master or comprehensive plan." 1 Grannis , 978 S.W.2d at 330; see also Nash , 345 S.W.3d at 817.
The General Assembly defined the term "agricultural use" for purposes of KRS Chapter 100 in KRS 100.111(2). Under that statutory provision, "agricultural use" refers to the utilization of
[a] tract of at least five (5) contiguous acres for the production of agricultural or horticultural crops, including but not limited to livestock, livestock products, poultry, poultry products, grain, hay, pastures, soybeans, tobacco, timber, orchard fruits, vegetables, flowers, or ornamental plants, including provision for dwelling for persons and their families who are engaged in the agricultural use on the tract, but not including residential building development for sale or lease to the public.
KRS 100.111 (2)(a). The term also refers to certain small farm wineries and land used for various activities involving horses, regardless of the size of the tract. See KRS 100.111(2)(b)-(d).
Notably, KRS Chapter 100 is silent on the issue of how property may be designated "agricultural use" property for purposes of the Chapter. Thus, it does not appear that a property owner must make a formal or written declaration that he or she is using property for agricultural purposes to enjoy the benefits of the agricultural supremacy clause. In other words, property qualifies as agricultural property if it is used for any of the agricultural purposes set forth in KRS 100.111(2).
Zeigler , however, does indicate that a property owner cannot convert his or her property from some other use to agricultural use and thereby circumvent prior zoning rules. See Zeigler , 2004 WL 67686.
In Zeigler , the subject property owners had maintained their residence on 2.8711 acres of land zoned for residential use within the City of Ft. Mitchell since 1974. Id. at *1. The property owners leased an additional 2.1799 acres adjacent to their property in 2001. Id. The City of Ft. Mitchell sent a notice to the property owners on February 14, 2002, officially notifying them "of zoning violations on their property . . .[,] specifically the keeping and maintaining of a horse and having a fence in the front yard." Id. The property owners then filed suit in Kenton Circuit Court, seeking a declaration that the agricultural supremacy clause exempted their property from the City of Ft. Mitchell's zoning ordinance, as "they occup[ied] five contiguous acres on which they ke[pt] a horse, and raise[d] hay, flowers, and ornamental plants." Id.
The trial court sided with the City, finding that the property owners had "no legal right to engage in agriculture in a residential zone." Id. According to the trial court, the property owners could not "negate the City's authority to regulate activity in residential zones by unilaterally attempting to convert their property into a farm." Id. Relying on the trial court's "sound reasoning," the Court of Appeals affirmed. Id. , at *2.
In light of Zeigler , it is the opinion of this office that a property owner may not convert his or her five (5) contiguous acres to "agricultural use" within the meaning of KRS 100.111(2) where preexisting zoning regulations prohibit such use. Stated otherwise, if the agricultural use of the property pre-dates the relevant zoning ordinance, then the property is exempt from the zoning regulations. If, on the other hand, the zoning ordinance is in place before the property's agricultural use commences, the zoning regulations prevail.
Please note, however, that the statutory definition of "agricultural use" is quite broad. See KRS 100.111(2). As stated by the Kentucky Court of Appeals,
There is no requirement that a person make the best agricultural use or be efficient in the operation of a farm. Some farmers don't like cattle, horses, or any animals. Some ranchers don't like growing crops. Some people consider farming a career, while others treat it as a hobby or a second job. One owner may decide to bushhog the fields, while another may decide to allow nature to take its course and encourage gradual reforestation. Adjacent owners may have mixed uses on one tract, and a single crop may be produced on another. Some crops, like hay, may be harvested twice a year, while others, like some trees, may produce only one harvest per generation. None of these scenarios is less agricultural or silvicultural than another, although their intensity, efficiency, and profitability may all be different.
Grannis , 978 S.W.2d at 331. Further, "[A] user of agricultural land can change one agricultural use to another with impunity," Id.
Footnotes
Footnotes
1 Courts also consider KRS 413.072 to reflect the agricultural supremacy clause, as it generally prohibits the regulation of agricultural operations through nuisance, trespass, or zoning ordinances. See 413.072(2); see also Nash , 345 S.W.3d at 817; 21st Century Development Co., LLC v. Watts , 958 S.W.2d 25, 27 (Ky. App. 1997).