CAMPBELL COUNTY FISCAL COURT , ET AL. VS. NASH (PAUL), ET AL.
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RENDERED: DECEMBER 12, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
SUPREME COURT GRANTED DISCRETIONARY REVIEW:
JANUARY 13, 2010
(FILE NO. 2009-SC-0152-D)
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000994-MR
CAMPBELL COUNTY FISCAL COURT;
STEPHEN PENDERY, JUDGE EXECUTIVE;
DAVID OTTO, CAMPBELL COUNTY
COMMISSIONER; MARK HAYDEN, CAMPBELL
COUNTY COMMISSIONER; KENNETH
RECHTIN, CAMPBELL COUNTY COMMISSIONER;
PETER J. KLEAR, CAMPBELL COUNTY PLANNING
AND ZONING COMMISSION DIRECTOR;
AND THE CAMPBELL COUNTY PLANNING
AND ZONING COMMISSION AND/OR
REVIEW BOARD
v.
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NOS. 05-CI-00886 AND 05-CI-01254
PAUL NASH; PAT NASH;
CLIFFORD TORLINE; AND
TOBY TORLINE
AND
APPELLANTS
NO. 2007-CA-001065-MR
APPELLEES
PAUL NASH; PAT NASH;
CLIFFORD TORLINE; AND
TOBY TORLINE
v.
CROSS-APPELLANTS
CROSS-APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NOS. 05-CI-00886 AND 05-CI-01254
CAMPBELL COUNTY FISCAL COURT;
STEPHEN PENDERY, JUDGE EXECUTIVE
INDIVIDUALLY AND OFFICIALLY; DAVE
OTTO, CAMPBELL COUNTY COMMISSIONER
INDIVIDUALLY AND OFFICIALLY; KEN
RECHTIN, CAMPBELL COUNTY COMMISSIONER
INDIVIDUALLY AND OFFICIALLY; PETER J.
KLEAR, CAMPBELL COUNTY PLANNING AND
ZONING COMMISSION DIRECTOR; THE
CAMPBELL COUNTY PLANNING AND ZONING
COMMISSION AND/OR REVIEW BOARD; AND
JACK SNODGRASS, CAMPBELL COUNTY CLERK
CROSS-APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: THOMPSON AND VANMETER, JUDGES; HENRY,1 SENIOR
JUDGE.
VANMETER, JUDGE: The Campbell County Fiscal Court and the named county
officials (collectively referred to as appellants) appeal from the Campbell Circuit
Court’s orders declaring unconstitutional Campbell County Ordinances Nos. O-1804 and O-20-04. Appellants argue that the trial court erred by holding that the
Fiscal Court lacked the authority to enact the ordinances, and by holding that the
1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
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ordinances were preempted by the agricultural supremacy clause, were void for
vagueness, and interfered with the duties of the county clerk and the Property
Valuation Administrator (PVA). Property owners Paul Nash, Pat Nash, Clifford
Torline, and Toby Torline cross-appeal from the same orders, arguing that they are
entitled to attorneys’ fees and damages and that the trial court erred by finding that
certain parties were entitled to immunity. For the following reasons, we vacate and
remand.
Facts.
In August 2004, the Fiscal Court adopted Ordinance Nos. O-18-04
and O-20-04. As appellants state in their brief, those ordinances essentially “give
the Fiscal Court’s designated agent the ability to make a threshold determination as
to whether a proposed division of land is or is not a ‘subdivision’ within the
meaning of [KRS] 100.111(22).” Specifically, Ordinance No. O-18-04 directs, in
pertinent part, as follows:
Prior to being assigned a Property Identification
Number and/or recorded, the Campbell County Fiscal
Court shall review, through its designated agent, all
survey plats, deeds, or other means used to represent land
division submitted for property identification numbers
from the Property Valuation Administration and/or
recording by the Campbell County Clerk where such land
divisions are not otherwise reviewed and approved under
the Campbell County Subdivision Regulations. When a
tract of land is being divided and the property owner
alleges an exemption from subdivision review due to
proposed agricultural use of the land, the property owner
must give written testimony and provide a written
notarized affidavit stating exactly what the primary use
or uses of the land will be for and that the land will not
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be used for residential building development for sale or
lease to the public. Additionally, the designated agent,
on behalf of the Campbell County Fiscal Court, shall
require that a statement be placed on the plat, etc. to the
effect that the land is not to be used for residential
building development for sale or lease to the public.
The Campbell County Fiscal Court shall also
designate a review board to which appeals of official
action or decision rendered from the aforementioned
designated agent can be taken. Any person claiming to
be injuriously affected or aggrieved by official action of
the designated agent may appeal that action or decision to
the designated review board. Such appeal shall be taken
within thirty (30) calendar days after the action or
decision of the designated agent.
Ordinance No. O-20-04 names the Campbell County Director of Planning and
Zoning (Commission Director) as the “designated agent,” and the Campbell
County and Municipal Planning and Zoning Commission (Commission) as the
“review board.” The Commission Director testified by deposition that the Fiscal
Court passed these ordinances in an effort to prevent situations in which
individuals had no access to their property or homeowners expected but had no
access to water, sewer, electric, roadway, postal delivery, 911 or other services.2
Paul and Pat Nash.
Paul and Pat Nash own a farm in Campbell County, Kentucky. To
divide their farm into five tracts, the Nashes had their farm surveyed in August
2
The Commission also adopted these ordinances as a part of its subdivision regulations.
Campbell County, Ky., Subdivision Regulations, § 4.0(A)20, § 8.9
(http://www.campbellcounty.ky.gov/NR/rdonlyres/46CF6D4C-6F4C-4635-89B7561B3F8E832D/0/CampbellCountySubdivisionRegulations.pdf).
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2003 and had deeds to themselves prepared.3 The Nashes obtained property
identification numbers (PIDNs) from the Campbell County PVA, and the five
tracts were placed on the Campbell County tax rolls. However, when the Nashes
presented the five deeds for recording, the Campbell County Clerk refused to
record the deeds and directed the Nashes to contact the county attorney.4 The
Nashes made several other unsuccessful attempts to record the deeds prior to
August 2004.
In August and September 2004, the Fiscal Court passed Ordinance
Nos. O-18-04 and O-20-04, as described above. When the Nashes once again
attempted to record their deeds, the clerk’s office advised them of the new
ordinances. The Nashes thereafter resubmitted the deeds and other paperwork in
an effort to comply with the ordinances at issue. However, the Commission
Director denied the Nashes’ proposed land division on the ground it amounted to a
“subdivision,” as defined in KRS 100.111(22), which the Commission had not
approved as required by KRS 100.277(1). The Commission Director determined
that the subdivision did not qualify for the KRS 100.111(22) agricultural
3
Appellants assert that ultimately the Nashes intended to live on one tract, transfer three tracts to
their children, and sell one tract to the general public.
4
The tendered deeds referred to and included as an exhibit a plat for the Nashes’ property, which
plat had not been approved by the Commission. Since a deed which refers to or exhibits a plat of
an unapproved subdivision “shall be void and shall not be subject to be recorded[,]” KRS
100.277(3), the record is sufficiently clear that the county clerk properly refused to record the
deeds and referred the Nashes and their counsel to the county attorney. Contrary to the
implication of the dissenting opinion, the county clerk did not arbitrarily or capriciously refuse to
record the deeds. Any suggestion that our decision grants a county clerk the unfettered
discretion to refuse to record lawful deeds, mortgages, financing statements, or judgment liens is
misplaced.
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exemption since the Nashes indicated that they planned to sell one tract, that they
might lease or offer the remaining property for sale to the general public, and that
the subdivision involved a new street.
Clifford and Toby Torline.
Clifford and Toby Torline own a farm in Campbell County, Kentucky,
which they also desire to divide into five tracts. The Torline property is a
landlocked parcel of approximately thirty-five acres, with access to a state highway
by means of a private easement across neighboring property. In July 2005, the
Torlines had their farm surveyed and proposed to create five tracts for themselves
and their children, all of which were to be serviced by a roadway with a forty-foot
wide access and utility easement. The Torlines submitted five deeds and the
accompanying paperwork to the Commission Director, who denied the proposed
land division on many of the same grounds used to deny the Nashes’ proposed land
division. Specifically, the Commission Director determined that proposal was for
a “subdivision,” as defined in KRS 100.111(22), which the Commission had not
approved as required by KRS 100.277(1). The subdivision did not qualify for the
KRS 100.111(22) agricultural exemption since the Torlines indicated that they
might lease or offer the property for sale to the general public. Further, the
Commission Director found that the subdivision involved a new street, and it did
not “include frontage along a public right-of-way with a dedicated and accepted
public street.”
Circuit Court Action.
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Both the Nashes and the Torlines filed administrative appeals in
accordance with Ordinance No. O-18-04, but they abandoned those appeals in
favor of actions seeking declarations of rights or declaratory judgments by the
Campbell Circuit Court. After the trial court consolidated the actions and
discovery was completed, appellants moved for summary judgment, and the
Nashes and Torlines moved for a declaration of their rights. The trial court held
that the two ordinances were unconstitutional because they “eliminated” the
agricultural supremacy clause of KRS 100.203(4) and were vague as applied. The
court further held that the ordinances impermissibly preempted the statutes
governing the county clerk, the PVA, and the zoning statute by purporting to
dictate the responsibilities of each. Additionally, the court found that Campbell
County was immune pursuant to KRS 65.2003, and the Campbell County Clerk, in
his official capacity, was entitled to absolute governmental immunity. The county
judge-executive and two county commissioners were entitled to absolute
legislative immunity in their individual and official capacities. The third county
commissioner, who was not a member of the Commission when the ordinances
were passed, was entitled to absolute legislative immunity in his official capacity
and qualified immunity in his individual capacity. This appeal and cross-appeal
followed.5
Authority of the Fiscal Court to Enact the Ordinances.
5
Case No. 2007-CA-000994-MR is the appellants’ direct appeal; Case No. 2007-CA-001065MR is the cross-appeal filed by the Nashes and Torlines.
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Appellants’ first argument is that the trial court erred by failing to
hold that KRS 67.083(3)(k) provided the Fiscal Court with the authority to enact
the two ordinances at issue.6 For the reasons stated hereafter, we conclude that the
ordinances were properly enacted.
KRS 67.083(3)(k) authorizes a fiscal court to enact ordinances
regarding “[p]lanning, zoning, and subdivision control according to the provisions
of KRS Chapter 100[.]” The powers granted by KRS 67.083(3) are “liberally
construed to provide fiscal courts with broad powers related to governmental
functions[,]” unless the power at issue has been “specifically restricted by other
legislation.” See Concerned Citizens for Pike County v. County of Pike, 984
S.W.2d 102, 103 (Ky.App. 1998). Here, KRS Chapter 100 constitutes such
restricting legislation. In Oldham County Planning & Zoning Comm’n v. Courier
Commc’ns Corp., 722 S.W.2d 904, 907 (Ky.App. 1987), we held that
[l]ocal zoning authorities such as those similar to the
appellants have only those powers expressly provided by
statute. They are not invested with a constitutional nor a
common law right to regulate property through the
passage of local zoning ordinances. Such ordinances are
the result of police power vested in the state legislature
which in turn may invest in the legislative branch of
municipal government a specified portion of that power.
6
We note the Nashes and Torlines’ procedural argument that appellants failed to preserve for
appellate review the issue of the Fiscal Court’s authority to enact the ordinances in question
since their prehearing statement failed specifically to delineate that issue. See Kentucky Rules of
Civil Procedure (CR) 76.03(8). All the issues in this controversy, however, inextricably involve
the authority of a fiscal court to enact the ordinances in question. We therefore believe
appellants substantially complied with CR 76.03(8). See Capital Holding Corp. v. Bailey, 873
S.W.2d 187, 196-97 (Ky. 1994) (holding that the crux of this rule is to insure the appellate court
and opposing parties are aware of issues to be presented on appeal, and thus substantial
compliance is sufficient).
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See also Bellefonte Land, Inc. v. Bellefonte, 864 S.W.2d 315, 317 (Ky.App. 1993)
(stating that “[w]hen the state has preempted a field, the city must follow that
scheme or refrain from planning”). Thus, KRS 67.083(3)(k) affords the Fiscal
Court only those planning, zoning and subdivision powers authorized in KRS
Chapter 100, which we must examine to determine whether the Fiscal Court had
the power to enact the ordinances at issue here.
Under KRS Chapter 100, the General Assembly has determined the
manner in which local entities may engage in land use planning. Pursuant to KRS
100.277(1), “[a]ll subdivision of land shall receive [planning] commission
approval.” Also, pertinent to the matter sub judice is KRS 100.111(22), which for
purposes of this proceeding defines a “subdivision” in part as being
the division of a parcel of land into two (2) or more lots
or parcels; for the purpose, whether immediate or future,
of sale, lease, or building development, or if a new street
is involved, any division of a parcel of land; provided
that a division of land for agricultural use and not
involving a new street shall not be deemed a
subdivision.
(Emphasis added.) Further, KRS 100.111(2) defines “agricultural use” as relating
to small wineries or certain horse activities, or as involving the use of:
(a) 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 dwellings for
persons and their families who are engaged in the
agricultural use on the tract, but not including
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residential building development for sale or lease to
the public[.]
(Emphasis added.)
In the instant case, the ordinances in question do not explicitly
contravene the provisions of KRS Chapter 100. First, KRS 100.277(1) provides
that the local planning commission shall approve all subdivisions of land. While
the Fiscal Court initially passed the ordinances at issue here, those ordinances
provide that the Planning Commission and its Director shall determine whether a
proposed division of land is a “subdivision.” Regardless of whether the Fiscal
Court was in fact vested with the power to enact the ordinances initially, see KRS
100.273, the Planning Commission subsequently adopted the text of the ordinances
as a part of its subdivision regulations, thereby rendering moot any issue herein
regarding the Fiscal Court’s exercise of its authority.
Second, the record is clear that appellants attempted to enforce the
ordinance by reference to the standards contained in KRS 100.111, in that both the
Torlines’ and the Nashes’ proposed divisions were denied on the grounds that the
divisions involved new streets and the potential sale or lease to the public of one or
more lots.
Third, we note that KRS 100.273 through 100.292 is subtitled
“Subdivision Management.” Within these sections are a number of restrictions on
subdivisions, including those relating to prior commission approval, KRS
100.277(1), and injunctive relief, KRS 100.291. Further KRS 100.991 provides
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penalties for violations. We simply perceive no good reason to require a county to
be reactive only after violations of the subdivision regulations occur, as opposed to
proactively seeking to avoid future problems. An owner of a piece of property
seeking a true division of land for agricultural use, in which the division will result
in two or more tracts, of at least five acres each, with no new streets, will be
minimally inconvenienced by the required submission of a plat and affidavit to the
Planning Commission. Certainly both the Nashes and the Torlines secured the
services of surveyors to survey their respective properties, to divide the property
into lots, and to survey a means of ingress and egress.
In fact, the proposed divisions of the Nash and the Torline tracts show
the necessity for the ordinances in question. The Torlines propose to subdivide
their farm into five tracts, all accessed by a forty-foot wide easement. Similarly,
the Nashes propose to subdivide their farm into five tracts, three of which have
access to a public road, Beck Road, only by means of a twenty-foot wide easement.
Both the Nashes and the Torlines argue that farm easements for ingress and egress
do not constitute “new streets” within the meaning of KRS 100.111(22). In
support of this proposition, they cite Ky. OAG 73-605 and Ky. OAG 72-516. Of
course, although persuasive, Kentucky Attorney General opinions are binding on
neither the recipients nor the courts. York v. Commonwealth, 815 S.W.2d 415, 417
(Ky.App. 1991).
KRS 100.111(20) defines “street” as “any vehicular way[.]” We note
that words in statutes are to be “construed according to the common and approved
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usage of language[.]” KRS 446.080(4). A “vehicle” is a means of transporting or
carrying persons or property. Merriam-Webster’s Collegiate Dictionary 1305
(10th ed. 2002). See also Black’s Law Dictionary 1551 (7th ed. 1999). A “way” is
a thoroughfare leading from one place to another. Merriam-Webster’s at 1333.
Thus, a vehicular way is a passage suitable to use by vehicles.
In this instance, the passageways proposed by both the Nashes and the
Torlines for access to the otherwise landlocked parcels are clearly “vehicular
ways” and are therefore “streets” within the definition established by KRS
100.111(20). The conclusion that these passageways are “streets” cannot be
avoided by a claim that the passageways are not new since they merely follow
existing farm roads. The record is devoid of any proof that any persons other than
the Nashes or Torlines currently have a right to use these passages. However, once
the divisions are made or approved, the other lot owners, and their guests and
invitees, will have the right to use the passageways. The attorney general opinions
cited by the Nashes and the Torlines, relating to whether the proposed passages
would constitute “streets,” are not persuasive.7
Agricultural Supremacy Clause.
7
We note that in Ky. OAG 72-516, the Attorney General stated “[i]t is difficult to determine
what the Legislature had in mind with reference to the term ‘street[,]’” paraphrased the definition
set out in KRS 100.111, and then stated “[t]his is a factual situation, however, which should
initially be submitted to the planning commission for its consideration.” (Emphasis added.)
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Appellants argue that the trial court erred by holding that the
ordinances were preempted by the agricultural supremacy clause set out in KRS
100.203(4). We agree.
KRS 100.203(4) provides that cities and counties may not regulate
land which is used for agricultural purposes, with four enumerated exceptions not
applicable here.8 The rationale for the trial court’s holding that the ordinances
violated the provisions of this statute is not clear, although presumably the holding
was dictated by the fact that the division of the property was in tracts which each
had five or more acres. However, a presumption that five-acre tracts are devoted
to agricultural uses is not a natural or logical extension of KRS 100.111(22).
Green v. Bourbon County Joint Planning Comm’n, 637 S.W.2d 626, 629 (Ky.
1982).9 While the Nashes and the Torlines argue, and apparently the trial court
believed, that “five acres” is a magic number for determining an agricultural
division, we do not believe that is necessarily the case.
In Grannis v. Schroder, 978 S.W.2d 328 (Ky.App. 1997), this court
discussed KRS 100.203(4), the “agricultural supremacy clause,” and noted that this
8
Cities and counties may require land used for agricultural purposes to have setback lines. KRS
100.203(4)(a). They may also regulate the use of agricultural land in flood plains, in regard to
the installation of mobile homes and other dwellings, and as pertains to the conditional use of
tracts for certain activities involving horses. KRS 100.203(4)(b)–(d).
9
At the time Green was decided, KRS 100.111(22) defined subdivision and stated “that a division
of land for agricultural purposes into lots of parcels of five (5) acres, or more, and not involving a
new street shall not be deemed a subdivision.” In 1982, the General Assembly amended the
statute to create a new subsection defining “agricultural use,” including the five-acre tract
minimum and the definition of agricultural or horticultural crops, KRS 100.111(2), and redefining
“subdivision” to exclude “a division of land for agricultural use and not involving a new street[.]”
1982 Ky. Acts ch. 306, §1.
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provision “does not simply make a farm a legal nonconforming use but takes it
outside the zoning ordinances’ jurisdiction, although not outside the master or
comprehensive plan.” In Grannis, one issue was whether the board of adjustment
erred in finding that the property owner used the majority of his property for
agricultural purposes, since he only occasionally cut hay on the property. In
addressing this issue, the court discussed KRS 100.203 at length, as follows:
Chapter 100 of the Kentucky Revised Statutes is
commonly referred to as the enabling act for planning
and zoning. Under KRS 100.203, cities and counties
may enact zoning regulations. However, Section 4 of
KRS 100.203 specifically exempts land used for
agriculture from zoning regulations - except for setbacks,
use of flood plains, and mobile homes. This “agricultural
supremacy clause” (KRS 100.203(4)) does not simply
make a farm a legal nonconforming use but takes it
outside the zoning ordinances' jurisdiction, although not
outside the master or comprehensive plan. That is an
important distinction because by exempting agricultural
land from application of the zoning ordinance, the
provisions of KRS 100.203, which deals with changes in
nonconforming uses, do not apply. A community can
still plan, even develop, a comprehensive or master plan,
and go so far as to adopt a zoning map including all the
property in its jurisdiction, whether used for agriculture
or not. However, as long as the land is used for
agricultural purposes, the adopted zoning regulations
(except for the three exceptions above) do not apply or
attach to the property. Zoning ordinances frequently
include agricultural zones in both the text and the map.
The ordinance covering Schroder's property, ZO, Section
671A Agricultural Zone (A-1U) Unincorporated Areas, is
typical and includes agricultural activities, including a
single family farm residence, as a permitted principal
use. Technically, it is not necessary to list these uses
because of the agricultural supremacy clause, but as a
practical matter, it makes the zoning ordinance easier to
read and all inclusive.
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Agricultural zones, like the A-1U zone in question
here, typically include some nonagricultural uses as
principal permitted uses, such as hospitals, day cares, and
churches. Some nonagricultural uses are listed as
conditional uses in the A-1U zone, like recreational
facilities, slaughterhouses, feedlots, and home
occupations. Id. These uses, also being nonagricultural
in the sense that they are not typical farming operations,
are subject to the BOA's approval which may be given
subject to certain conditions as the BOA did in
Schroder's case. See KRS 100.237. Under the local
ordinance, a home occupation is allowed in an A-1U
zone if the home occupation is an agricultural home
occupation. ZO, 671A Agricultural Zone (A-1U)
Unincorporated Areas, § 3. Conditional Uses: d.
agricultural home occupations. Under the ZO, Article 2,
Section 200, an agricultural home occupation is defined
as:
An occupation conducted in a
dwelling unit or an accessory building, as a
conditional use in an Agricultural Zone,
provided that:
....
4. An agricultural home occupation may be
conducted in an accessory building provided that
the use is clearly incidental and subordinate to the
land's principal agricultural use. (Emphasis
added.)
This brings us back to what an agricultural use is,
or when land is being used for agricultural purposes
under the agricultural supremacy clause of KRS
100.203(4). KRS 100.111(2) defines an agricultural use
to mean:
the use 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
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products, poultry, poultry products, grain,
hay, pastures, soybeans, tobacco, timber,
orchard fruits, vegetables, flowers or
ornamental plants, including provision for
dwellings for persons and their families who
are engaged in the above agricultural use on
the tract, but not including residential
building development for sale or lease to the
public[.] (Emphasis added.)
The Schroders have over five contiguous acres,
including a dwelling, and they produce hay. 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. The Schroders have produced hay in the
past, but even if they decide to allow nature to reclaim all
but an area immediately around the house, and six acres
around the barn, it does not mean that the agricultural use
is now incidental or subordinate to the home occupation.
Again, the other twenty or so acres are being used, albeit
not very wisely from a farmer's point of view. But
eventually, the land may produce timber, firewood,
flowers, ornamental plants, or wildlife habitats, which
again may be a poor choice, but is undeniably an
agricultural use. In a few years, the owner may decide to
cut everything down and raise cattle or even ostriches.
The point is that a user of agricultural land can change
one agricultural use to another with impunity. KRS
413.072, enacted after Schroder's request, guarantees the
right to change without being labeled a nuisance,
trespass, or zoning violation.
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978 S.W.2d at 330-31 (footnote omitted).
We have quoted at length from Grannis because we think the
important distinction between it and this case is that Grannis dealt with the
restrictions on agricultural use in an agricultural zone. In the instant case, we
disagree that the Campbell County ordinances place a restriction on agricultural
use in an agricultural zone. Our reading of the ordinances is that they instead
address the division, platting and transfer of property, as opposed to the use to
which property is put. See Green v. Bourbon County Joint Planning Comm’n, 637
S.W.2d at 629. Moreover, the ordinances do not restrict in any way the
agricultural uses to which the Nashes and Torlines may subject their respective
properties. Instead, for the purposes of our review, the ordinances simply provide
that if a property owner intends to make an ostensible agricultural division which
the owner claims is exempt from Planning Commission review, he or she must first
submit a copy of the proposed division and an affidavit to the Planning
Commission. As previously noted, a true agricultural division involving two or
more tracts of land, with at least five acres each and no new streets, will be
minimally impacted.
Violation of Ky. Const. § 2.
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The Nashes and the Torlines argue that the ordinances operate
arbitrarily in violation of Ky. Const. § 2, since they do not provide for “trial type
hearings” as required by Kaelin v. City of Louisville, 643 S.W.2d 590, 591 (Ky.
1982). The ordinances, as adopted by the Planning Commission, state that “[a]ny
subdivider claiming to be aggrieved by any actions of the Planning Commission’s
duly authorized representative may appeal such actions to the Planning
Commission.” Campbell County, Ky., Subdivision Regulations § 8.9.
Additionally, KRS 100.347 provides for an appeal from the final action of the
Planning Commission to the circuit court. Clearly, a review mechanism is set in
place. Thus, on its face, the subdivision review process does not appear arbitrary
or violative of due process.
Kentucky case law appears to support the proposition that any such
Planning Commission appeal must comport with minimal standards of procedural
due process by providing protections such as a hearing, the presentation of
evidence, and a decision supported by substantial evidence. See Danville-Boyle
County Planning & Zoning Comm’n v. Prall, 840 S.W.2d 205, 207-08 (Ky. 1992);
Kaelin, 643 S.W.2d at 591-92; City of Louisville v. McDonald, 470 S.W.2d 173,
177 (Ky. 1971). However, we also note that in the context of an administrative
hearing, due process is a flexible process. Prall, 840 S.W.2d at 207. At this point,
the record is unclear as to what course any hearing before the Planning
Commission ultimately would have taken since both the Nashes and the Torlines
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opted to dismiss their respective appeals before that body. This claim is therefore
not ripe for any decision, and we will not address it further.
Vagueness.
The trial court further found, without elaboration, that the Campbell
County ordinances are vague because of how they are applied. In Lexington
Fayette County Food & Beverage Ass'n v. Lexington-Fayette Urban County Gov’t,
131 S.W.3d 745, 753-54 (Ky. 2004), the Kentucky Supreme Court delineated the
void-for-vagueness doctrine, as follows:
As long as an ordinance or statute can be
reasonably understood by those affected by the ordinance
and they can reasonably understand what the statute
requires of them, it is not unconstitutionally vague. See
Gurnee v. Lexington-Fayette Urban County Government,
Ky.App., 6 S.W.3d 852 (1999). Vagueness involves a
“man on the street” approach. The challenged statute
must provide “fair warning” to the public and “explicit
standards” for those who apply it in order to pass
constitutional muster. Hardin v. Commonwealth, Ky.,
573 S.W.2d 657 (1978).
....
“[A] proper analysis of a statute claimed to be
facially unconstitutional for vagueness is whether a
person disposed to obey the law could determine with
reasonable certainty from the language used whether
contemplated conduct would amount to a violation.”
Commonwealth v. Foley, Ky., 798 S.W.2d 947, 951
(1990), overruled on other grounds by Martin v.
Commonwealth, Ky., 96 S.W.3d 38 (2003). See also
Gurnee, supra at 856 (1999) (“The fact that a statute . . .
is susceptible to more than one interpretation does not
require a holding that the statute is unconstitutional if, as
the circuit court determined, those who are affected by
the statute can reasonably understand what the statute
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requires of them.”); Sasaki v. Commonwealth, Ky., 485
S.W.2d 897, 901 (1972) (“The accepted test in
determining the required precision of statutory language
imposing criminal liability is whether the language
conveys a sufficiently definite warning as to the
proscribed conduct when measured by common
understanding and practices.”). The “void for
vagueness” doctrine, therefore, attempts to ensure
fairness by requiring an enactment to provide: (1) “fair
notice” to persons and entities subject to it regarding
what conduct it prohibits; and (2) sufficient standards to
those charged with enforcing it so as to avoid arbitrary
and discriminatory application. State Board for
Elementary Education v. Howard, Ky., 834 S.W.2d 657,
662 (1992) (“In reviewing the standard for vagueness,
this Court and the United States Supreme Court have
followed two general principles underlying the concept
of vagueness. First, a statute is impermissibly vague if it
does not place someone to whom it applies on actual
notice as to what conduct is prohibited; and second, a
statute is impermissibly vague if it is written in a manner
that encourages arbitrary and discriminatory
enforcement.”); Hardin, supra at 660; Commonwealth v.
Kash, Ky.App., 967 S.W.2d 37, 42 (1997) (“The voidfor-vagueness doctrine emanates from the due process
provisions of the United States and Kentucky
Constitutions. To survive vagueness analysis a statute
must provide ‘fair notice’ of prohibited conduct and
contain ‘reason-ably clear’ [sic] guidelines to thwart
‘arbitrary and discriminatory enforcement.’ ” (citations
omitted)); Raines v. Commonwealth, Ky.App., 731
S.W.2d 3, 4 (1987).
In this instance, the Campbell County ordinance, while not explicitly
referring to KRS Chapter 100, cannot be considered in a vacuum. And, in fact, the
record in this case reveals that appellants undertook to enforce the ordinance in
conformity with KRS Chapter 100. The prohibited activity is the subdivision of
tracts of land into nonagricultural lots, for resale, and/or with the inclusion of one
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or more new streets. The ordinance provides fair notice and a mechanism for
review by the Planning Commission, and the standards for its enforcement are
sufficiently clear to avoid arbitrary and discriminatory application. The trial court
erred by finding the ordinances to be impermissibly vague.
Interference with the Duties of County Clerk
and Property Valuation Administrator.
The trial court also ruled that the ordinances impermissibly interfered
with the statutory duties of the county clerk and the PVA, including the county
clerk’s duty to record lawful deeds under KRS 382.110 and KRS 382.335, and the
PVA’s duty to “maintain lists of all real property additions[10] . . . to the property
tax rolls for the county” under KRS 132.015. This ruling, however, ignores that
under KRS 100.277, a planning commission is authorized to approve plats of
subdivisions of land, such approval must be obtained before plats may be recorded,
and instruments referring to unapproved plats or subdivisions are void. Thus, we
agree with appellants that the ordinances in question actually assist the county
clerk and the PVA in properly performing their statutorily required duties.
Since we hold that the trial court erred in holding the Campbell
County ordinances void, it follows that the ordinances are enforceable. We
therefore need not address the issues raised in the Nashes’ and Torlines’ crossappeal with respect to any liability of appellants for enforcing the ordinances. The
10
Under KRS 132.010(8)(f), “real property additions” means “[p]roperty created by the
subdivision of unimproved property[.]”
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Campbell Circuit Court’s order is vacated, and this matter is remanded to that court
with directions to grant appellants’ motion for summary judgment in their favor.
HENRY, SENIOR JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN PART, DISSENTS IN PART
AND FILES SEPARATE OPINION.
THOMPSON, JUDGE, CONCURRING IN PART AND
DISSENTING IN PART: I respectfully dissent from that portion of the majority’s
opinion regarding the duties of the county clerk to lawfully record deeds, and the
validity of the ordinance which imposes a requirement in addition to those imposed
by statute. My disagreement with the majority is with its interpretation of our
recording statutes and those pertaining to planning and zoning.
KRS 382.110(1) states:
All deeds, mortgages and other instruments required by
law to be recorded to be effectual against purchasers
without notice, or creditors, shall be recorded in the
county clerk’s office of the county in which the property
conveyed, or the greater part thereof, is located.
The requirements for a deed to be recordable are set forth in KRS 382.335, which
contains no reference to prior approval of a plat by the planning and zoning
commission nor does it vest any discretion in the county clerk to reject a deed that
conforms to the statute’s requirements.
Although stated in the infancy of our jurisprudence, in Wulftange v.
McCollom, 7 Ky. L.Rptr. 334, 83 Ky. 361 (1885), the court appropriately
characterized the duty of the clerk to record a deed as a ministerial act. “An act is
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ministerial when the law clearly spells out the duty to be performed by the official
with sufficient certainty that nothing is left to the exercise of discretion.” County
of Harlan v. Appalachian Regional Healthcare, 85 S.W.3d 607, 613 (Ky. 2002).
Consistency and predictability throughout the Commonwealth are
essential to the preservation of our recording statutes. If each county in this
Commonwealth is allowed to impose its unique requirements and limitations on
deeds, security interests, mortgages, judgment liens, and other instruments, we will
have no consistency. If, as the majority opines, the recording of a deed or other
instrument for the purpose of lien priority is subject to the discretion of the county
clerk, those who seek to preserve priority are subject to a potentially arbitrary and
capricious decision of the clerk, and as a result, financial losses.
I believe that all requirements for recording a deed should properly be
designated in KRS Chapter 382 and that the majority erroneously relies upon KRS
100.277 to permit the clerk to deny the recording of a deed. A review of the index
of Michie’s Kentucky Revised Statutes finds no reference to KRS 100.277 under
the subject matter of recordation of deeds. For those reasons, it is my belief that
KRS 100.277 relating to planning and zoning commissions does not apply as a bar
to the recording of a deed by a county clerk.
In this case, the deeds complied with the statutory requirements set
forth by the legislature. Therefore, the clerk was mandated to record the deed.
Any issue relative to the legal status of the property described in the deed is subject
to interpretation by the planning and zoning commission and ultimately to judicial
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interpretation. For example, other remedies available to the county and planning
and zoning commission are direct litigation or the refusal to approve a building
permit for any use of the property until such time as the property conforms to the
rules and regulations of the county and its planning and zoning commission.
The ordinance which purports to alter the requirements for recording
deeds and the corresponding ministerial duty upon the county clerk to record deeds
is contrary to the dictates of the legislature and, therefore, unlawful.
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BRIEF FOR APPELLANTS/CROSSAPPELLEES CAMPBELL COUNTY
FISCAL COURT; STEPHEN
PENDERY, JUDGE EXECUTIVE;
DAVID OTTO, CAMPBELL COUNTY
COMMISSIONER; MARK HAYDEN,
CAMPBELL COUNTY
COMMISSIONER; KENNETH
RECHTIN, CAMPBELL COUNTY
COMMISSIONER; PETER J. KLEAR,
CAMPBELL COUNTY PLANNING
AND ZONING COMMISSION
DIRECTOR;
AND THE CAMPBELL COUNTY
PLANNING AND ZONING
COMMISSION AND/OR REVIEW
BOARD:
BRIEF FOR APPELLEES/CROSSAPPELLANTS:
Robert E. Blau
Cold Spring, Kentucky
Jeffrey C. Mando
Covington, Kentucky
BRIEF FOR CROSS-APPELLEE JACK
SNODGRASS, CAMPBELL COUNTY
CLERK:
Michael P. Cussen
Cincinnati, Ohio
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