Nash v. Campbell County Fiscal Court
| Citation | 345 S.W.3d 811 |
| Decision Date | 21 April 2011 |
| Docket Number | No. 2009–SC–000152–DG.,2009–SC–000152–DG. |
| Parties | Paul NASH, et al., Appellants,v.CAMPBELL COUNTY FISCAL COURT, et al., Appellees. |
| Court | United States State Supreme Court (Kentucky) |
OPINION TEXT STARTS HERE
Aug. 25, 2011.
Robert Edward Blau, Blau & Kriege, PLLC, Cold Spring, KY, Counsel for Appellants.Jeffrey C. Mando, Adams, Stepner, Woltermann & Dusing, PLLC, Covington, KY, Counsel for Appellees Campbell County Fiscal Court, the Campbell County Planning and Zoning Commission and/or Review Board, Dave Otto (Campbell County Commissioner), Ken Rechtin (Campbell County Commissioner), Peter J. Klear (Campbell County Planning and Zoning Commission Director), and Stephen Pendery (Judge Executive).Ralph Gary Winters, Michael P. Cussen, McCaslin, Imbus & McCaslin, Cincinnati, OH, Counsel for Appellee Jack Snodgrass (Campbell County Clerk).Opinion of the Court by Justice SCHRODER.
The appeals in the Court of Appeals were consolidated and an opinion was issued which revisits the “agricultural supremacy clause,” the exemption of certain agricultural land from zoning and subdivision regulations under Chapter 100 of the Kentucky Revised Statutes. We accepted discretionary review to give some guidance in applying the agricultural exemption to both the use and the division of land.
Paul and Pat Nash (Nash) own about twenty-eight acres in Campbell County. Clifford and Toby Torline (Torline) own about thirty-five acres in Campbell County. Both Nash and Torline desired to divide their parcels into tracts containing five or more acres each, for agricultural uses. Nash and Torline see the results as mini-farms, while the County sees residential subdivisions with large lots. The County Clerk is caught in the middle and seeks guidance as to whether or not he should accept the deeds for recording. The County has taken a stand with two ordinances 1 designed to prohibit any division until the property owners prove to the Planning Commission that the divisions were for agricultural purposes. Nash and Torline take exception to having the burden placed on them, countering that the County must prove the divisions were not exempt from subdivision regulations. The trial court agreed with Nash and Torline and held the ordinances in question violated the agricultural supremacy clause and were therefore unconstitutional. The Court of Appeals reversed and we accepted discretionary review.
Paul and Pat Nash own about twenty-eight acres at 4398 Indian Trace Road in Alexandria, Campbell County, Kentucky. Indian Trace Road is an “old roadbed” that borders the westerly property line of the Nash property.2 Public maintenance of Indian Trace Road stops before reaching the Nash property. Access to the Nash property is by what is locally known as Beck Road. Beck Road is an old road or driveway that begins somewhere on the “old roadbed” of Indian Trace Road and proceeds to the Nash property.3 The driveway continues through the Nash property to a house. At the end of the pavement, by the house, begins a gravel drive that continues to the proposed farms in Tract 2 and Tract 3. In August of 2003, the Nashes had their property surveyed and prepared five deeds of five or more acres each. Only Tract 1, from which the four new tracts were divided, has frontage on the “abandoned” 4 old Indian Trace Road or Beck Road. With the proposed agricultural divisions, access to all five tracts was to be by way of a twenty foot wide easement for ingress and egress. The easement begins at the end of Beck Road and the beginning of the driveway, and continues over the driveway up to the house where the pavement stops, and then continues along the gravel driveway to proposed Tract 2 and Tract 3.
Clifford and Toby Torline own a parcel of about thirty-five acres in Campbell County, Kentucky. The Torline property has no road frontage on a public street but is accessed by a driveway on an easement over a neighboring property. The Torlines also desire to divide their property into five tracts of five or more acres each for agricultural purposes. Access to each of the five tracts was to be by way of the private easement from a public road over a neighbor's property to the Torline property, and then by way of a forty foot wide access and utility easement through the Torline property.
The County passed two ordinances in August 2004, to address divisions of land for agricultural purposes, Ordinance Nos. O–18–04 and O–20–04. The first, O–18–04, requires an owner wishing to divide and sell land for agricultural purposes (or otherwise exempt from subdivision regulations) to submit a written notarized affidavit to an agent for the Campbell County Fiscal Court, stating the proposed primary use of the land and that the land will not be used for residential building development for sale or lease to the public. The ordinance also requires the plat or deed contain a similar restriction or statement. The second ordinance, O–20–04, designates the Campbell County and Municipal Planning and Zoning Commission (Planning Commission) as its designated agent and its review board.
The property owners presented the deeds for recording with the Campbell County Clerk's Office. The Clerk's Office would not accept the deeds for recording until approved by the Planning Commission, and the Planning Commission would not approve said deeds because of alleged deficiencies in qualifying for the agricultural exception. Two issues arose due to this impasse. The first issue is a procedural issue —who has the burden to show the proposed conveyance is not subject to the subdivision regulations because of the agricultural supremacy clause. Does the property owner have to show the proposed conveyance is exempt from subdivision regulations; or, does the County have the burden to have a conveyance voided for not complying with the subdivision regulations? The second issue is a legal issue on uncontested facts—whether the proposed conveyances in question are subdivisions subject to subdivision regulations; or, are the proposed conveyances exempt from subdivision regulations due to the agricultural supremacy clause or exemption of KRS 100.111(22), KRS 100.111(2), and KRS 100.203(4)?
Any authorized political subdivision that wants to adopt zoning regulations (land use) and subdivision regulations (divisions of land) must comply with Chapter 100 of the Kentucky Revised Statutes (Planning and Zoning). “When the state has preempted a field, the city must follow that scheme or refrain from planning.” 5 Under KRS 100.273(1), the planning commission has initial authority to adopt subdivision regulations. 6 Those counties that do not have planning commissions can adopt subdivision regulations through the fiscal court.7 KRS 67.083(3)(k) does authorize fiscal courts to adopt planning, zoning, and subdivision regulations “according to the provisions of KRS Chapter 100[.]”
Subdivision plats are approved by the planning commission as a ministerial function to insure compliance with the subdivision regulations. 8 KRS 100.111(22) exempts, from the definition of “subdivision”, divisions of land which are restricted to agricultural uses and not involving a new street. Agricultural uses in both the zoning ordinances and in subdivision regulations are defined in KRS 100.111(2), and for purposes herein, usually require a parcel of at least five contiguous acres. Under the Campbell County Ordinances in question,9 a land owner desiring to divide and convey parcels for agricultural purposes must make an application to the “Campbell County Planning And Zoning Commission And/Or Review Board”, with evidence that the proposed conveyance is restricted to agricultural uses and that the land will not be used for residential building uses, to prove entitlement to the agricultural exemption from the subdivision regulations. We believe this approach is the reverse of the statutory scheme—which requires subdivision approval by a planning commission, but does not require planning commission approval of conveyances which do not involve subdividing. The ordinances in question require the property owners prove a negative to the planning commission before property can be divided or conveyed for agricultural uses. To the extent the ordinances in question require planning commission approval before property can be divided into agricultural parcels, we agree with the circuit court that said ordinances are void, although not because they violate the Constitution, but because they conflict with the statutory wording and scheme of KRS 100.111(22), KRS 100.111(2), KRS 100.203(4),10 and KRS 100.273 et seq. , as well as KRS 413.072, which prohibits local regulations on agricultural uses. To the extent the ordinances sought to amend the subdivision regulations, they are void because the adoption or amendment of subdivision regulations are functions of the planning commission, at least initially.11
The fact that a property owner does not need planning commission approval of divisions of land under the agricultural exemption of KRS 100.111(22), KRS 100.111(2), and KRS 100.203(4), does not mean that any deed (of a proposed agricultural division of land) that recites that it is exempt from planning commission approval under said statute(s) is automatically entitled to be recorded. There is no presumption under the statutes that tracts of five or more acres are for agricultural use.12 A planning commission that believes a division of land is not exempt from its review and approval (under KRS 100.111(22) and KRS 100.111(2)) can seek injunctive relief or otherwise litigate.13 In the event land is sold in violation of the subdivision regulations, the attempted conveyances are void.14
Also, a county clerk has the obligation to record recordable deeds 15 and plats 16 (within a reasonable...
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