February 24, 2019

Developing Real Estate In Kentucky: A Labyrinth Of Zoning Laws And Other Stuff

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Prior to beginning my career as a land use attorney, I mistakenly believed securing rezoning approval for the development of real estate ought to be fairly simple. However, after practicing land use law for 25 years in many counties across the Commonwealth, I have learned that obtaining rezoning approval for real estate development is anything but a simple task.  In every other area of the law, the same rules or governing law applies in every Kentucky county, but not so with zoning laws.  Chapter 100 of the Kentucky Revised Statutes empowers local governments to enact zoning ordinances and subdivision regulations.

These zoning laws and subdivision regulations regulate the use of land and can vary significantly from county to county.  Some counties permit certain land uses under certain conditions at specified locations while other counties will accommodate most any land use that brings jobs to that county.  Still other counties expressly prohibit any development other than agricultural uses in certain parts of the county.  In the rural area of Fayette County, the local law requires a property owner to have at least 40 acres of land before they can construct a single family home while right next door in Jessamine County on land adjacent to this 40-acre residential lot, a property owner can construct a single family home on only one acre. 

Adding to this planning and zoning law conundrum is that state law permits multiple zoning ordinances and subdivision regulations even within the same county. For example in Jessamine County, there are separate zoning ordinances for land that is located within: (1) the city limits of Nicholasville, (2) the city limits of Wilmore and (3) in the county of Jessamine.  This is three different sets of zoning laws for a county with a population of 53,000.

In Jefferson County, there are 13 cities. Most of these cities have adopted the zoning ordinances enacted by Metro Council but over time, some of these cities have adopted changes and still others have opted to follow the zoning ordinances which were in place prior to merger. All totaled, there are 55 counties in Kentucky which have adopted county wide zoning laws.  There are another 41 cities in the Commonwealth which have enacted zoning laws which are located in counties which have not adopted any zoning ordinances for land located in the county. If your head is spinning already, bear with me, it gets worse.

In my practice throughout the state on behalf of developers and neighborhoods, I have observed on several occasions that local zoning ordinances do not comply with the enabling Kentucky statutes.  Kentucky courts have consistently held that, “a local government’s authority to act in matters pertaining to planning and zoning is derived from the enabling statutes and it cannot act beyond the power conferred by the Kentucky General Assembly.” Allen v Woodford County Bd. of Adjustment, Ky. App., 228 S.W. 3d 573, 576 (2007).  Ordinances which are not in strict compliance with KRS Chapter 100 are void.  Thus, it is prudent to carefully examine the zoning ordinances in question because some of the provisions may be invalid.

Finally, just when you think you have reached a comfort level regarding the applicable zoning law governing the use of the land you are about to develop or live on as part of a residential neighborhood, don’t rest too easy too quickly  as changes in land use can take place on the surrounding land. This is particularly the case with annexation.  Cities, other than those with merged city/county governments, have the statutory power to incorporate county land into the city limits.  Sometimes, this annexation can bring about radical and unanticipated changes in surrounding land uses. I’ve witnessed cities annex several miles of a public highway in order to rezone county land and bring it within the city’s territorial limits for uses which were entirely incompatible with the existing land uses.

Clearly, the prudent investor in Kentucky real estate is better served by fulling assessing the validity and applicability of the land use laws which impact his or her property as well as the surrounding property.