Old Town Winchester Subdivision Leaves Commissioners Divided

The Fayette County Commissioners Court narrowly approved an unusual property division at their meeting last Thursday, May 28. The vote was 3-2. It involved tracts in Winchester that are smaller than the County’s two-acre minimum requirement.

County Inspector Amber Hielscher said the subdivider, Briana Adams, divided the 0.64 acre property and sold it without first seeking a variance from the Commissioners Court. The property includes four lots in Winchester that were originally platted in 1889.

Hielscher said the matter first came to her attention when the new owner requested a septic permit.

“This one is a different situation,” Hielscher said. “They have already sold the property and the deed has been created, and then I got a permit request. I was like, ‘Whoa, what do you mean?’ So I called the attorney and she was under the assumption that since it is in Old Town Winchester and these lots are already created, that they could be sold separately.”

The Town of Winchester was platted more than 130 years ago with the expectation that it would one day become an incorporated city with municipal utilities such as sewer service. However, the town never incorporated. Accordingly, the authority to regulate subdivisions in Winchester remains with the County government.

The County established subdivision regulations in 2001. Those regulations today require a two-acre minimum lot size for septic systems. Tracts created before 2001 are generally “grandfathered in” and not subject to those regulations.

Adams’ original property included lots 9, 10, 11 and 12 described in the old Winchester town plat. She kept lots 9 and 12 and sold lots 10 and 11 to James Sterling in April of this year. The two new parcels are each roughly 0.32 acres in size. They are separated by an undeveloped alley that is also described in the original plat.

“We’ve never allowed them to be sold separately as lots,” Hielscher said. “But the attorney was not aware of that. They did sell and they did close. I asked our legal team and they recommended me not to issue any permits until it comes to Court.”

Hielscher said Sterling submitted a septic design showing that it would fit on his 0.32 acre property. His property is served by a rural water utility, so he has no plans to drill a water well.

“It’s a platted subdivision,” said Pct. 1 Commissioner Jason McBroom. “The lots were already created … The way I see it, it still can go back to the original lot because that’s what the original parcel of land was.”

Hielscher cautioned that by allowing the division, the Court may set a precedent. Other property owners may flood her office with requests to divide lots smaller than the two-acre minimum.

“I’ve already gotten some calls,” Hielscher said.

The County’s two-acre minimum lot size requirement provides ample spacing for property owners to install septic systems. In practice, it also limits residential development in unincorporated areas.

Hielscher said the County allows septic systems on lots smaller than two acres that were created prior to the 2001 regulations, as long as they meet the State’s setback rules for septic systems.

“This can meet the state setbacks, but it was not divided prior to our 2001 regulations,” Hielscher said.

County Judge Dan Mueller asked Hielscher for her recommendation.

“I do think we have regulations for a reason, and I can kind of see both sides,” she said. “As Commissioner McBroom was talking about, these lots were created a long time ago. I had six lots in Winchester myself and was told we could not divide them – that we had to sell them as a whole, which we did. So I’m kind of mixed on it.”

Hielscher said Sterling already purchased the property and paid for part of the water and septic costs.

“I wasn’t aware of it, sir, when we purchased it,” Sterling told the Judge at the meeting. “We were told it was grandfathered in and it would be no problem in putting a manufactured home on it.”

“Shouldn’t the title company have stopped it?” Mueller asked.

“They should have, but they didn’t check with me,” Hielscher said.

“It all depends on how they view it, because the lots were separate already,” McBroom said. “The whole key is they were already lots since the 1800s. Its just that somebody bought three or four of them.”

“Those four have been together since 1991,” Hielscher said.

McBroom then moved to approve the property division. Pct. 3 Commissioner Harvey Berckenhoff seconded the motion. Judge Mueller asked for any other questions or comments. Berckenhoff stated that if the Court approves the request, other property owners may ask for the same consideration. Hielscher said that some property owners in Winchester have already contacted her office about making similar divisions.

“What else are people going to do with these lots?” Berckenhoff asked.

“I agree with you,” said Pct. 2 Commissioner Clint Sternadel. “In this situation, it fits.”

Sternadel said the County should be prepared to respond to similar requests in the other unincorporated towns such as Plum, West Point and Muldoon.

“Even though it works for this one, in the future I think we need to clarify something specific to platted, unincorporated areas like this,” Sternadel said.

When the item came up for a vote, it passed with McBroom, Berckenhoff and Sternadel voting in favor. Mueller and Pct. 4 Commissioner Drew Brossmann voted against the motion.

The Court considered several other subdivision applications at their meeting last Thursday. We’ll have those in a future edition of the newspaper.