[1994/oagheade.htm]

OAG 94-24

March 31, 1994

B. R. Salyer

General Counsel

Kentucky State Board of Registration for Professional Engineers and Land Surveyors

504 Flemingsburg Road

Morehead, Kentucky 40351-1022

Dear Mr. Salyer:

You have asked three questions regarding KRS chapter 322 and its applicability to landowners who prepare their own plats and similar documents.

Three statutes are implicated by your questions. The first is KRS 322.020, which states:

No person shall practice or offer to practice engineering or land surveying, or use, assume or advertise in any way any title or description tending to convey the impression that he is an engineer or land surveyor, unless he has been registered under this chapter.

An exception to the foregoing rule is provided in KRS 322.030, which states:

KRS 322.020 shall not apply to:

* * *

(3) The practice of engineering or land surveying by a person on property leased or owned by the person unless the practice involves the public safety or public health[.]

The third statute applicable to this inquiry is KRS 322.400, which states:

It shall be unlawful for the county clerk of any county, or any other public authority with whom the same may be required by law to be filed, to accept for filing, file or record any map, plat, survey or other document related to the practice of land surveying, unless there is affixed thereto the personal seal and signature of the registered land surveyor by whom, or under whose personal supervision and direction, such map, plat, survey or other document was prepared.

Your letter indicates that some landowners who are not registered surveyors have laid out their property in subdivisions and attempted to record the plat with the county clerk. Your first question is:

Is a county clerk, or other public authority, permitted to record a subdivision plat which was prepared by a land owner who is not a registered professional land surveyor, in spite of KRS 322.400?

The answer to this question is no. By its explicit terms, the exception contained in KRS 322.030 ("land surveying by a person on property leased or owned by the person") applies only to KRS 322.020; there is nothing to suggest that the exception also applies to KRS 322.400. That is to say, by enacting KRS 322.030 the legislature has provided that it is not an offense for an unregistered person to perform land surveying on property he owns or leases; but the legislature has not enacted a provision that would allow such a person to record the fruit of his efforts in the county clerk's office.

We acknowledge a possible exception to this rule. If a planning commission has approved such a plat, then the county clerk is compelled by KRS 100.329 to record it.

Your second question is:

If KRS 322.400 prohibits the recording of a subdivision plat referred to in Question No. 1 above, and if a county clerk or other public authority has recorded such a document, is there some procedure for removing the document from the clerk's or public authority's records?

There is no provision for removing such an instrument from recordation.

Your third question is:

If a land owner who is not a registered professional land surveyor prepares subdivision plats of property leased or owned by him for the purpose of selling lots to other parties, does that practice involve the public safety or public health?

We cannot state as a general rule that every subdivision of property into lots implicates public safety or public health. Nor can we state the opposite. Common sense would indicate that a division of property into residential building lots with no provision for road access, water, and sewage would certainly be contrary to public health and safety. Conversely the sale of a farmer's hayfield to his neighbor does not raise such concerns. The answer to this question can be determined only in reference to a specific situation.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General