AN ACT relating to land use.

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AN ACT relating to land use. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
SECTION 1. A NEW SECTION OF KRS CHAPTER 65 IS CREATED TO 3
READ AS FOLLOWS: 4
(1) As used in this section: 5
(a) "Applicant" means a property owner or developer, or the representative or 6
agent of any property owner or developer, who has filed an application; 7
(b) "Application" means the filing of an application for a building permit, 8
development plan, or subdivision plat, provided the application substantially 9
complies with the requirements of local development ordinances and 10
regulations; 11
(c) "Approval" means: 12
1. The approval by a planning unit of a preliminary development plan; 13
2. The approval by a planning unit in which a property is located of a 14
final development plan submitted by an applicant where no 15
preliminary development is required; or 16
3. The issuance of a building permit to an applicant where neither a 17
preliminary development plan nor final development plan is required; 18
(d) "Development standard": 19
1. Means any standard adopted by a planning unit or local government 20
that is applicable t o the development of property, including but not 21
limited to those relating to: 22
a. Planning and zoning; 23
b. Storm water; 24
c. Construction or building, including of streets, alleys, curbs, and 25
sidewalks; 26
d. Layout or design; and 27
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e. Lot size or dimension; and 1
2. Does not include standards required by federal or state law; 2
(e) "Final development plan" means a plan which has been submitted by an 3
applicant and approved by a relevant authority describing with reasonable 4
certainty the type and intensity of use for a specific parcel or parcels of 5
property, and may be in any form, including but not limited to a subdivision 6
plat or development plan; 7
(f) "Local government" means any city, county, consolidated local 8
government, urban -county government, charter county gover nment, or 9
unified local government; 10
(g) "Planning unit" has the same meaning as in KRS 100.111; 11
(h) "Preliminary development plan" means a plan which has been submitted by 12
an applicant and that depicts a single -phased or multiphased planned 13
development typ ically used to facilitate initial public feedback and secure 14
preliminary approvals from a relevant authority; 15
(i) "Relevant authority" means a local governmental entity enforcing any 16
development standards and includes a planning unit; and 17
(j) "Site preparation" means the: 18
1. Excavating, grading, demolition, removing excess debris to allow for 19
proper grading, or providing a surface for a proper foundation, 20
drainage, and settling for a development project; and 21
2. Physical improvements, including but not limit ed to water and 22
sanitary sewer lines, footings, or foundations installed on a site for 23
which construction permits are required. 24
(2) (a) On the date of application to a relevant authority, the applicant shall have a 25
vested property right for any property th at is the subject of the application. 26
The vested property right shall: 27
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1. Grant the applicant the ability to use the development standards in 1
effect on the date of application except as set out in subsection (4) of 2
this section; 3
2. Be retained by the appli cant during the vesting periods established in 4
paragraph (c) of this subsection; and 5
3. Only be terminated as set out in subsection (3) of this section. 6
(b) A relevant authority shall consider an application using the development 7
standards in effect on the date the application was submitted. A relevant 8
authority shall not deny an application due to a change in a development 9
standard that occurs after the submission of the application. 10
(c) A vested property right under this section shall be subject to the fo llowing 11
time periods: 12
1. a. When the right is established due to the issuance of a building 13
permit, it shall begin on the date of application for the building 14
permit and shall remain in effect for the time period authorized 15
by the building permit, including any approved renewal obtai ned 16
by the applicant prior to the expiration or termination of the 17
permit to be renewed. 18
b. The right shall terminate if the applicant fails to pursue site 19
preparation or construction with reasonable diligence; and 20
2. a. When the right is established due t o the submission of a 21
preliminary development plan, the vesting period shall be for a 22
period of three (3) years following the approval. 23
b. To maintain a vested right, an applicant shall: 24
i. Obtain approval of a final development plan if one is 25
required by the relevant authority; 26
ii. Secure all necessary permits; and 27
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iii. Pursue site preparation or construction with reasonable 1
diligence. 2
c. If the applicant maintains the vested right as set out in division b. 3
of this subparagraph, the vesting period shall ex tend for an 4
additional two (2) years beyond the date of expiration of the 5
initial three (3) year period, during which time the applicant 6
shall commence construction of the development. 7
d. The vesting period shall continue during the construction of the 8
development and until the relevant authority has certified final 9
completion of the development, but shall not exceed ten (10) 10
years from the date of the initial approval. 11
e. Developments that proceed in two (2) or more sections or phases 12
as described in a dev elopment plan shall have a separate vesting 13
period for each section or phase, and the development standards 14
applicable for the first section or phase shall be applicable for 15
any subsequent section or phase. The vesting period for 16
developments that proceed in sections or phases shall not exceed 17
fifteen (15) years following an initial approval, regardless of the 18
commencement of a particular section or phase of the 19
development. 20
(d) A relevant authority may grant an extension for any of the vesting periods 21
set out in paragraph (c) of this subsection. 22
(e) A relevant authority shall not require an applicant to waive the applicant's 23
vested rights as a condition of approval or as consideration for an approval 24
under this section. 25
(3) (a) A relevant authority may term inate an applicant's vested rights during the 26
vesting period set out in subsection (2)(c) of this section by providing notice 27
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to the applicant that the planning unit has found that: 1
1. An applicant has materially violated the terms and conditions specified 2
in the approved development plan or building permit; 3
2. An applicant has materially violated a local ordinance established by 4
the relevant authority; 5
3. The enactment of any state or federal law, administrative regulation, 6
rule, or other similar device wo uld preclude the development as 7
approved; or 8
4. An applicant intentionally supplied inaccurate information or 9
knowingly made misrepresentations material to the issuance of an 10
approval. 11
(b) The termination of a vested right under paragraph (a)1. to 3. of th is 12
subsection shall occur only after the applicant has been given ninety (90) 13
days from the date of notice to cure any violation or modify any plan. 14
(c) A relevant authority may, despite reaching a finding as set out in paragraph 15
(a) of this subsection, al low the property right to remain vested upon a 16
written determination that doing so would be in the best interest of the 17
community. 18
(4) (a) A vested right shall not preclude enforcement of a development standard 19
contrary to that secured by a vested right when: 20
1. The relevant authority obtains the written consent of an applicant or 21
owner; 22
2. The relevant authority determines that a compelling countervailing 23
interest exists specifically relating to a prior development standard 24
secured by a vested right, where use of that prior development 25
standard would seriously threaten public health, safety, or welfare of 26
the community and the threat cannot be mitigated by the applicant 27
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within a reasonable time; 1
3. The relevant authority determines that a natural or man -made hazard 2
on the property subject to an approval that was not identified in the 3
development plan or building permit would pose a serious threat to 4
public health, safety, or welfare of the community and the threat 5
cannot be mitigated by the applicant within a reasonable time; or 6
4. A new development standard is required by the enactment of any state 7
or federal law, administrative regulation, rule, or any other similar 8
device. 9
(b) The findings under paragra ph (a)2. and 3. of this subsection shall be made 10
in writing and provided to the applicant. 11
(5) A vested property right does not alter, amend, impair, or change the eminent 12
domain powers of a relevant authority as set out in the Eminent Domain Act of 13
Kentucky. 14
(6) (a) This section shall not alter, amend, impair, or change the authority of a 15
planning unit to exercise its planning and zoning authority, except a vested 16
property right shall preclude the effect of any planning and zoning action 17
which would alter, amend, impair, change, diminish, or otherwise delay the 18
development of the property in accordance with an application. 19
(b) If a planning unit enacts a moratorium on development or construction, a 20
vesting period authorized under subsection (2) of this sect ion shall be tolled 21
during the period of the moratorium. 22
(7) (a) An applicant seeking to amend an approved development plan shall seek the 23
approval of the relevant authority. The relevant authority may deny an 24
amendment if it finds that the amendment: 25
1. Substantially alters the proposed use; 26
2. Increases the overall area of the development; 27
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3. Alters the size of any nonresidential structures included in the 1
development plan; 2
4. Increases the density of the development in a way that would have a 3
substantial impact on traffic, noise, or the environment; or 4
5. Substantially increases any expense of the relevant authority 5
necessary to implement the changes sought by the amendment. 6
(b) If a relevant authority denies an amendment under paragraph (a) of this 7
subsection, the applicant may proceed under the prior approved plan and 8
retain the vested right or allow the vested right to terminate and apply for a 9
new approval under this section. 10
Section 2. KRS 100.347 is amended to read as follows: 11
(1) (a) Any person or entity claiming to be injured or aggrieved by any final action of 12
the board of adjustment who meets the criteria in subsection (6) of this 13
section,[ and that owns real property within the same zone where the property 14
that is the subject of the final action is located] shall appeal from the action to 15
the Circuit Court of the county in which the property that is the subject of the 16
action of the board of adjustment lies. 17
(b) The appeal shall be taken within thirty (30) days a fter the final action of the 18
board. 19
(c) All final actions which have not been appealed within thirty (30) days shall 20
not be subject to judicial review. 21
(d) The board of adjustment shall be a party in any appeal filed in the Circuit 22
Court under this subsection. 23
(2) (a) Any person or entity claiming to be injured or aggrieved by any final action of 24
the planning commission who meets the criteria in subsection (6) of this 25
section,[ and that owns real property within the same zone where the property 26
that is the subject of the final action is located] shall appeal from the final 27
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action to the Circuit Court of the county in which the property that is the 1
subject of the commission's action lies. 2
(b) The appeal shall be taken within thirty (30) days after the action of the 3
commission. Such action shall not include the commission's recommendations 4
made to other governmental bodies. 5
(c) All final actions which have not been appealed within thirty (30) days shall 6
not be subject to judicial review. Provided, however, any appeal of a planning 7
commission action granting or denying a variance or conditional use permit 8
authorized by KRS 100.203(5) shall be taken pursuant to this subsection. In 9
such case, the thirty (30) day period for taking an appeal begins to run at the 10
time the legislative body grants or denies the map amendment for the same 11
development. 12
(d) The planning commission shall be a party in any appeal filed in the Circuit 13
Court under this subsection. 14
(3) (a) Any person or entity claiming to be injured or aggrieved by any final action of 15
the legislative body of any city, county, consolidated local government, or 16
urban-county government, relating to a map amendment who meets the 17
criteria in subsection (6) of this section, [ and that owns real property within 18
the same zone where the property that is the subject of the final action is 19
located] shall appeal from the action to the Circuit Court of the county in 20
which the property that is the subject of the map amendment lies. 21
(b) The appeal shall be taken within thirty (30 ) days after the final action of the 22
legislative body. 23
(c) All final actions which have not been appealed within thirty (30) days shall 24
not be subject to judicial review. 25
(d) The legislative body shall be a party in any appeal filed in the Circuit Court 26
under this subsection. 27
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(4) The owner of the subject property and applicants who initiated the proceeding shall 1
be made parties to the appeal. Other persons speaking at the public hearing are not 2
required to be made parties to such appeal. 3
(5) For purposes of this chapter, final action shall be deemed to have occurred on the 4
calendar date when the vote is taken to approve or disapprove the matter pending 5
before the body. 6
(6) Only the following persons or entities shall have standing to challenge a final 7
action under this section: 8
(a) An applicant who initiated the proceeding that is subject to the final action; 9
(b) An owner of the property that is the subject of the final action; or 10
(c) A third party who: 11
1. Owns real property within the same zone where the property that is the 12
subject of the final action is located; 13
2. Would sustain actual damages that are personal to the third party and 14
distinct from damages that would impact the public generally; and 15
3. Participated in the approval process prior to the final action by: 16
a. Submitting a written statement to the relevant body; or 17
b. Speaking at a public hearing of the relevant body. 18
Other persons or entities shall not have standing to challenge a final action under 19
this section. 20