Request By:
Mr. Ottis Lanter
Commonwealth Attorney
15th Judicial District
Grant County Bank Building
Williamstown, Kentucky 41097
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Reid C. James, Assistant Attorney General
Your recent request for an opinion of this office relative to KRS 177.910, presents the following fact situation:
1) An individual possesses approximately fifty (50) automobiles gathered closer than 2,000 feet from the center line of road "A", none of which can be seen from that road.
2) Road "B" is more than 2,000 feet from the location of these automobiles, however they are plainly visible from road "B".
3) Separating roads "A" and "B" is a city owned lake used for recreational purposes.
Specifically, you query whether the operator of this junkyard is in violation of KRS 177.910, and is thereby subject to the penalties outlined in KRS 177.990(3).
An automobile junkyard is defined in KRS 177.905(2) as meaning any place where five (5) or more junked, wrecked or non-operative automobiles or vehicles are deposited, parked, placed or otherwise located.
An operator of a junkyard is defined by KRS 177.905(4), as being a person, firm or corporation operating an automobile junkyard, or allowing such automobiles to be placed, deposited, or to remain on premises owned or controlled by such person, firm or corporation.
Based on these definitions, and your fact situation, it may be presumed that the person owning the land in question is statutorily considered to be an operator of a junkyard.
The decision of Jasper v. Commonwealth, Ky., 375 S.W.2d 709 (1964), notes that aesthetic considerations are the principle objective of the junkyard statutes, contained in KRS 177.905 to 177.950, and that their purpose is to enhance the beauty of scenic roadways by prohibiting the maintenance of unsightly vehicle graveyards within the view of travelers.
The specific statute to which you refer, KRS 177.910, provides,
No person shall operate or cause to be operated any automobile, vehicle, machinery or material junkyard which is situated closer than 2,000 feet to the center line of any road unless a permit for such operation shall have been obtained from the bureau (Bureau of Highways, KRS 177.905(6)). The operation of any automobile, vehicle, machinery or material junkyard so situated without a permit is hereby declared to be a public nuisance. (Emphasis added).
The exception to this statute is contained in KRS 177.912, and states,
Automobile, vehicle or machinery junkyards or material junkyards which comply with the applicable zoning ordinances and regulations of any county or city, and which are located in industrially developed areas, as determined in the discretion of the commissioner of highways, and which areas are located within the corporate limits of any city as such limits existed on March 1, 1966, shall not be deemed to be in violation of KRS 177.905 to 177.950. (Emphasis added).
Although noted for informational purposes, this sole statutory exception to KRS 177.910, does not appear applicable under the facts as presented.
The issuance of a permit by the commissioner of the bureau of highways is the key factor in answering your question. KRS 177.915 provides,
The permit required by KRS 177.910 shall be issued . . . when it is shown to the satisfaction of the commissioner that an automobile . . . junkyard closer than 2,000 feet to the center line of any road is, so far as deemed practical by the commissioner, hidden from the view of motorists using such road by an artificial or natural screen, or is by virtue of natural topography so hidden. . . . (Emphasis added).
Your fact situation indicates that the junkyard at issue is located within 2,000 feet of the center line of road "A", but that it is hidden from the view of travelers on that road. As noted, KRS 177.910 provides that the operator must have a permit from the commissioner of the bureau of highways to maintain a junkyard at this location, even though it cannot be seen from road "A". If no such permit exists the operator is in violation of this statute, and subject to the penalty provisions of KRS 177.990(3), in addition to any other penalty provided by KRS 177.905 to 177.950.
The facts presented further note that while the junkyard is located more than 2,000 feet from road "B", it is clearly visible from that roadway. If the operator does have a valid permit to operate a junkyard within 2,000 feet of the center line of road "A", the question becomes one of whether the visibility of the junkyard from road "B" defeats that permit, even though road "B" is more than 2,000 feet from the junkyard.
It is the opinion of this office that such visibility from road "B" does not constitute a violation of this statute. While KRS 177.910 provides for the prohibition of the location of any junkyard within 2,000 feet of the center line of any roadway in the absence of a permit issued therefore by the Department of Highways, KRS 177.915, set out above, specifying the method of obtaining such a permit, provides that said permit may be issued when it is shown to the commissioner that the junkyard "located closer than 2,000 feet to the center line of any road is, . . . hidden from the view of motorists using such road. . . ." It appears clear, when KRS 177.910 is read in conjunction with KRS 177.915, that the roadway which is within the 2,000 feet specification of the former statute, must be the same roadway from which the junkyard is visible to constitute a violation.
While this may appear to conflict with purpose of the statute as set out in Jasper v. Commonwealth, supra, the legislature only provided for a maximum 2,000 feet limitation. The language of the statutes therefore leave no room for contrary interpretation. The necessity of this interpretation is apparent when it is remembered that a junkyard located more than 2,000 feet from the center line of a roadway, although visible from said roadway, is not controlled by these statutes.
That a city owned lake used for recreational purposes separates road "A" from road "B" is of no consequence in the assessment of the provisions of KRS 177.910 in relation to the facts presented.