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
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.
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
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 (which also affects the County Clerk)—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."
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.
The legal issue in this case is whether the County Clerk erred in not recording the Nash and Torline proposed divisions because the divisions were for agricultural purposes and thus exempt from the subdivision regulations by virtue of KRS 100.111(22), KRS 100.111(2), and KRS 100.203(4). The consolidated cases were submitted to the trial court on summary judgment motions. The trial court saw no genuine issue of material fact in this case and only issues of law.
"The standard of review on appeal of a summary judgment is whether the circuit judge correctly found that there were no issues as to any material fact and that the moving party was entitled to a judgment as a matter of law."
The United States Supreme Court decided in 1926 that individual property rights in land were not absolute, that the state and/or communities could exercise their police powers and regulate land use and zoning if the regulations were reasonably related "to the public health, safety, morals, or general welfare."
The "agricultural supremacy clause" is not a specific clause in the text of Chapter 100 of the Kentucky Revised Statutes, but a doctrine or thread that is woven throughout the Chapter. When the Chapter authorizes zoning regulations, KRS 100.203(4) exempts land used for agricultural purposes (whether or not in an agricultural zone) from most regulations on the use of land. When the Chapter 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. KRS 100.111(2) defines "agricultural use" which, in most cases, requires at least five contiguous acres to be considered an agricultural use. Together, these statutes create the "agricultural supremacy clause" or an agricultural exemption doctrine which takes agricultural uses outside the jurisdiction of zoning ordinances and agricultural divisions outside the jurisdiction of subdivision regulations, although not outside of planning or the master or comprehensive plan.
Grannis v. Schroder
The legal issue in the cases before us is whether the proposed conveyances must have planning commission approval, or are they exempt from subdivision regulations under the agricultural exemption of KRS
Neither the Nash nor Torline proposed conveyances meet the first prong. The Nash proposed deeds with their attached plats of the five Nash tracts contain the restriction or notation on the plat that "[t]he land shown on this plat is not to be used for residential building development for sale or lease to the public." For a deed or plat to qualify under KRS 100.203(4), it must restrict or limit the use of that conveyed to agricultural uses, and nothing more. The Torline deeds attach a plat which contains an unsigned restriction for agricultural use. Both Nash and Torline could make minor notations to restrict the property to agricultural uses to satisfy the first prong of the test, but at the time tendered, neither has met the first prong and the County Clerk properly refused to record the conveyances.
The second prong of the test requires, usually, that the conveyances for agricultural uses result in tracts of at least five contiguous acres.
The third prong to the agricultural division exception to subdivision regulations is more complicated. KRS 100.111(22) requires a division of a parcel for agricultural purposes to not involve a new street. KRS 100.111(20) defines a street as "any vehicular way." At first blush, the definition of street appears to cover any federal, state, county, municipal, and even private street or way. That definition would include driveways, private easements, gated communities, access roads, service roads, parking lot roads, mall roads, and even coal haul roads, etc. Defining a "street" as "any vehicular way" in KRS 100.111(20) contains a latent ambiguity: it is too broad. Fortunately, common law has injected the concept of a public use—that the vehicular way be open to the public—to be considered a street. This would exclude vehicular ways over private property, like driveways, private easements, gated communities, access roads, service roads, parking lots, haul roads, etc.
Open to the public means an intention by the owner that the way be used presently or in the future for such a public purpose.
Dedication may also be made by private land owners. "Most of the public streets and alleys in [existing] cities have been created by dedication in the platting and development of various city subdivisions."
The Nash proposed conveyances do not meet the third prong of the above test. The Nash property does front on Beck Road, which is a public road although not maintained by the County.
None of the Torline proposed conveyances can meet the third prong of the test—not involving a new street. The Torline property is landlocked. That is, the original Torline property has no frontage on any street. Instead, access to the Torline property is by way of a private easement over a servient parcel, with a driveway or private road constructed thereon. Although such parcels can continue to be bought and sold, the Torline parcel (the dominant estate) can never be divided further without frontage on an existing street and without compliance with the current subdivision regulations at Torline's expense.
The County Clerk did not err in not recording the tendered Nash and Torline conveyances because they were in fact subdivisions which needed planning commission approval. The trial court did not err to the extent it found the two county ordinances in question void, although we believe for different reasons. The Court of Appeals erred in holding the two county ordinances were valid, but did not err in remanding the case to the trial court for entry of summary judgment in Appellees' favor, but again, for different reasons. With our decision, the remaining issues become moot. Therefore, we affirm in part and reverse in part, remanding to the trial court with instructions to enter summary judgment in favor of the Appellees.
MINTON, C.J.; CUNNINGHAM, SCOTT, and VENTERS, JJ., concur. NOBLE, J., concurs in part and dissents in part by separate opinion in which Abramson, J., joins.
NOBLE, J., concurring in part and dissenting in part:
The majority opinion asserts that the county clerk is "caught in the middle" of the question in this case: should the clerk accept deeds for recording that divide farm property into smaller divisions containing at least five acres each when their stated purpose is for agricultural use? I do not believe the result reached by the majority resolves this dilemma, because the majority requires the county clerk to seek outside advice on the matter, with the county attorney or some other lawyer, and then make the call whether to record the deeds. The "middle" just got worse for the county clerk who may now be facing personal liability for choosing wrongly.
As the majority acknowledges, under the agricultural exemption of KRS 100.111(22), 100.111(2) and 100.203(4), property owners do not need planning commission approval to divide their farmland, so long as it continues an agricultural purpose and does not involve a new street. Here, Nash stated in his deeds that the property was not to be used for "residential
As the majority also acknowledges, a county clerk has the obligation to record recordable deeds within a reasonable time. Nothing about the proffered deeds made them unrecordable. However, because there were ordinances in place that required prior approval and decision-making by the planning commission as to the type of deed as either agricultural or subdivision, the clerk did not immediately record the deeds here. I agree with the majority that these ordinances are not proper, and should be set aside. However, once they are no longer considered, the clerk is back in the "middle" of decision-making again.
If a deed is on its face recordable, on what authority can a clerk refuse to record it? This is not the county attorney or an outside attorney's call. It is, in fact, prejudging a case without that case ever having a day in court. Such a delay can no doubt prejudice the land owners who wish to go forward with the sale of their mini-farms.
Instead, the majority shows greater concern over the view of a planning commission that this might actually be a subdivision, subject to subdivision regulation by the planning commission, than it does the immediate property owners. In so doing, the county clerk remains squarely "in the middle."
While I acknowledge that landowner's rights are not "supreme" in regard to their real property, I do not believe the law supports elevating a possibility that could impact the planning commission over the present and immediate rights of the landowners. Since the clerk is required to record a "recordable" deed, these deeds should have been recorded. The planning commission then can be diligent in reviewing recent property recordations, and if there may be a problem, seek injunctive relief. This takes the county clerk out of the middle and allows him or her to just do their job. A landowner should not have to sue to do what he is entitled to do.
Since the agricultural exemption clearly takes agricultural land use out of the review by the planning commission by making divisions such as these exempt from subdivision regulation, the burden of establishing a different use should not be on the landowner; the presumption should be that the use is agricultural.
Here, the land was referenced in the deeds as not for residential purposes, but to continue as agricultural. They all contained five or more acres as statutorily required, and no new public streets were necessary to construct as adequate easements existed to reach all the properties. The deeds were on their face recordable. Except for the ordinances in question, there was no reason for the county clerk to hesitate to record the deeds. Had that happened, the county then had ample opportunity to dispute the accuracy of any of those factors in court, rather than through outside consultations that do not carry the weight of law.
Consequently, while I agree with the majority that the ordinances were improper and should be set aside, I dissent from the process the majority endorses that unduly leaves the clerk dangling "in the middle." I would reverse and order the deeds be recorded in accordance with this opinion. The county could then take any steps it deems necessary.
ABRAMSON, J., joins.