Can a Kansas register of deeds refuse to record a land survey unless the surveyor certifies it meets local zoning rules?

Plain-English summary

The Kansas State Board of Technical Professions asked whether a register of deeds could refuse to record a land survey plat unless the land surveyor who prepared and submitted it certified that the survey met every applicable zoning ordinance and regulation. The concern was whether registers of deeds around the state were overstepping their authority by pushing that certification burden onto the submitting surveyor.

The Attorney General concluded they were. K.S.A. 19-1434(a) simply requires a survey plat to be recorded with the register of deeds within 90 days of completion and imposes no zoning certification duty on anyone. K.S.A. 58-2005 adds a review layer: before a register of deeds can record a plat, either the county surveyor or a surveyor the county has designated for that purpose must certify that it meets certain listed requirements, and county commissioners can add an extra requirement for that same reviewing surveyor to check compliance with local zoning ordinances. The opinion read the statute's reference to "additional review requirements" as tied specifically to the review the county surveyor or designated surveyor performs, not to any separate obligation on the outside land surveyor who submitted the plat in the first place. So while a county can make its own surveyor check zoning compliance as part of the plat review process, it cannot instead put that burden on the submitting surveyor, and a register of deeds cannot lawfully condition recording on the submitting surveyor providing that certification.

What this means for you

Registers of deeds: the opinion holds you cannot require a submitting land surveyor to certify zoning compliance as a condition of recording a survey plat; the zoning-compliance check, if a county has adopted one, is a job for the county surveyor or a surveyor the county has specifically designated for that review, not the private surveyor who did the original survey work.

Land surveyors submitting plats for recording: the opinion confirms you cannot be required to personally certify zoning compliance under K.S.A. 58-2005; that additional certification, where a county has adopted it, falls on the county's own reviewing surveyor.

County commissioners considering a zoning-compliance review requirement: the opinion clarifies that K.S.A. 58-2005(b)(4) lets you add that requirement to the county surveyor's or designated surveyor's review process, but not as a certification demanded from the outside surveyor who prepared the plat.

Common questions

Does K.S.A. 19-1434 require a surveyor to certify zoning compliance before recording a plat?
No, according to the opinion; that statute only sets a 90-day recording deadline and contains no zoning certification requirement at all.

Who actually checks zoning compliance if a county has adopted that requirement?
The county surveyor, or a surveyor the county has specifically designated for plat review, according to the opinion, not the submitting land surveyor who prepared the original survey.

Can a register of deeds simply refuse to record a plat until the submitting surveyor signs off on zoning?
No. The opinion concludes that action is not authorized by K.S.A. 58-2005, which lays out only two permissible paths for a register of deeds: forwarding the plat to the county surveyor or designated surveyor for review, or accepting a plat that reviewing surveyor has already signed.

Background and statutory framework

K.S.A. 19-1434(a) requires survey plats to be recorded with the register of deeds in the county where the survey occurred within 90 days of completion. K.S.A. 58-2005(a) adds a gatekeeping step: before recording, a plat submitted under K.S.A. 19-1434 must first be certified by the county surveyor or a surveyor designated by the county, confirming it meets requirements set out in subsection (b)(1). Subsection (d) limits the register of deeds to two actions: receiving the plat and fees from the submitting surveyor and forwarding it for review, or accepting a plat already signed by the county's own reviewing surveyor.

Subsection (b)(4) lets a county's board of commissioners add an "additional review requirement" for compliance with zoning ordinances and regulations for proposed new tracts. The opinion, applying the interpretive principle of reading provisions in pari materia, concluded that "additional review requirements" in (b)(4) attaches to the same "review" performed under subsection (a), meaning the zoning-compliance check is one more thing the county surveyor or designated surveyor must confirm, not a separate certification duty imposed on the private, submitting land surveyor.

Citations and references

Statutes:
- K.S.A. 19-1434(a)
- K.S.A. 58-2005 (incl. (a), (b)(1), (b)(4), (d), (d)(2))

Cases:
- Roe v. Phillips Cty. Hosp., 317 Kan. 1, 522 P.3d 277 (2023)

Source

• Landing page: https://www.ag.ks.gov/reports-resources/ag-opinions
• Original PDF: https://www.ag.ks.gov/home/showpublisheddocument/10514/638460984383130000

Original opinion text

November 7, 2023

ATTORNEY GENERAL OPINION NO. 2023-11

Mr. Larry Karns
Executive Director
Kansas State Board of Technical Professions
900 SW Jackson Street, Suite 507
Topeka, KS 66612

Re: Counties and County Officers—County Surveyor or Engineer—
Recording of Survey Plats, When; Requirements

         Personal and Real Property—Land Surveys—Review of Survey Plats;
         Requirements; Procedure; Costs; Recording of Plat, When

Synopsis: A register of deeds cannot require a submitting land surveyor to certify
that a survey complies with all zoning ordinances and regulations.
Cited herein: K.S.A. 19-1434; 58-2005.

                        *             *            *

Dear Mr. Karns:

As the Executive Director for the Kansas Board of Technical Professions and on
behalf of the Board, you ask whether a register of deeds may refuse to record a land
survey until a submitting land surveyor certifies that the plat and survey meets all
applicable zoning requirements.

In your request, you cite K.S.A. 19-1434(a), which simply says that "a survey plat
shall be recorded with the register of deeds in the county where the survey was
located within 90 days after completion of the survey." This statute imposes no
zoning certification requirements on land surveyors.

Under K.S.A. 58-2005(a), however, a register of deeds may not record a survey plat
submitted under K.S.A. 19-1434, without first having the county surveyor or a
surveyor designated by the county certify that it meets certain requirements.1
Under these circumstances, a register of deeds may either (1) receive the survey
plat and required fees from the submitting land surveyor and then deliver it to the
county surveyor or the designated surveyor for review or (2) accept a survey plat
that already has been signed by the county surveyor or designated surveyor.2 No
other actions are authorized.

In reviewing the plat, the county surveyor or designated surveyor must certify that
it satisfies four requirements.3 An additional certification requirement may be
adopted by the board of county commissioners for the "review of proposed new tracts
for compliance with zoning ordinances and regulations."4

Reading K.S.A. 58-2005 as a whole, we believe that county commissioners may
impose the zoning compliance requirement only on county surveyors or designated
surveyors, not submitting land surveyors. This is because the phrase, "additional
review requirements" in subsection (b)(4) is best understood to refer to the
"review[]" mandated by subsection (a).5 Therefore, a register of deeds may not
require submitting land surveyors to certify that their plats and surveys meet all
applicable zoning requirements.

                                            Sincerely,

                                            /s/ Kris W. Kobach

                                            Kris W. Kobach
                                            Kansas Attorney General

                                            /s/ Kurtis K. Wiard

                                            Kurtis K. Wiard
                                            Assistant Solicitor General

1 We interpret "land surveyor designated by the county" to exclude the submitting land surveyor. See

K.S.A. 58-2005(d)(2) (distinguishing between county surveyor, designated land surveyor, and
submitting land surveyor).
2 K.S.A. 58-2005(d).
3 Id. at (b)(1).
4 Id. at (b)(4).
5 See Roe v. Phillips Cty. Hosp., 317 Kan. 1, 5-6, 522 P.3d 277 (2023) (courts construe statutes in pari

materia even when the language of the statute is clear).