Request By:
James W. Gardner, Esq.
712 Lexington Building
201 West Short Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question about junkyards located within the city limits of a city of the fifth class. You refer to OAG 63-551 which you say interprets "roads" as set forth in KRS 177.905(1) to exclude city streets. You ask whether this opinion is still valid and, if so, whether a city of the fifth class may enact an ordinance prohibiting junkyards within the city limits.
KRS 177.905 to 177.950, which formerly referred to "junkyards, " now refers to "recyclers." Perlmits to operate those recycling establishments covered by the terms of the statutes must be obtained from the Bureau of Highways. The so-called "Junkyard Act" was held to be constitutional in Jasper v. Commonwealth, Ky., 375 S.W.2d 709 (1964) and Dawson v. Commonwealth, Department of Transportation, Etc., Ky., 622 S.W.2d 212 (1981).
KRS 177.905(1) states that "'Road' means any county, state, federal or limited access highway or turnpike, including bridges and bridge approaches." KRS 177.910 provides as follows:
"No person shall operate or cause to be operated any automobile, vehicle, machinery or material recycling establishment or place of business which is situated closer than one thousand (1,000) feet from the right-of-way line of any road unless a permit for such operation shall have been obtained from the bureau. The operation of any automobile, vehicle, machinery or material recycling establishment or place of business so situated without a permit is hereby declared to be a public nuisance. "
In OAG 63-551, copy enclosed, where the question under consideration was whether a city street was within the definition of "roads" under KRS 177.905(1), it was assumed that the street in question was not part of any county, state or federal highway system. Under that assumption it was determined that the city street was not a "road" under KRS 177.905 (1) and not within the junkyard prohibition set forth in KRS 177.910.
In OAG 71-520, copy enclosed, we dealt with the extent to which the state's "Junkyard Act" was applicable to a junkyard located within a city's corporate limits. We said the Junkyard Act does not cover those city streets which do not come under the definition of the word "road," set forth in KRS 177.905(1). "Road" includes any county, state, federal or limited access highway or turnpike, including bridges and bridge approaches. The state's authority relating to the issuing of permits for junkyards located closer than 1000 feet to the center line of any road would not include those areas involving city streets that were not a part of any county, state or federal highway system. The city, under its general police power, could then regulate, inspect and issue licenses for the operation of those junkyards or recycling establishments within the corporate limits not coming under the coverage of the state act or which fall within the exception referred to in KRS 177.912.
In connection with nuisances and the city's right to prohibit or regulate such activities, we direct your attention to 66 C.J.S., Nuisances, § 3, where the following appears:
"Nuisances are sometimes classified as per se and per accidens; a nuisances per se or at law is an act, occupation or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings, while a nuisance in fact or per accidens is one which becomes a nuisance by reason of circumstances and surroundings."
"A junk store or junk yard is not a nuisance per se, but may be a nuisance per accidens. The business of wrecking motor vehicles and salvaging parts is not a nuisance per se, although it may become a nuisance per accidens. " 66 C.J.S., Nuisances, § 75.
The Court, in U.S. Mining & Exploration, Etc. v. City of Beattyville, Ky., 548 S.W.2d 833 (1977), considered whether a city under its police power could outlaw coal tipples in the city. While a legislative body under its police power can prohibit certain businesses, the test to be applied is whether the prohibition of a particular business is necessary to prevent infliction of a public injury. At page 835 of its opinion in City of Beattyville, supra, the Court said in part:
"From these principles we deduce that a municipality may not prohibit the construction and operation of a coal tipple unless such a drastic measure is necessary for the protection of the health, safety, or general welfare of the people. Put another way, the operation of a coal tipple must be a nuisance per se before the prohibition can be justified. See McQuillin, Municipal Corporations, sec. 24.325 (Volume 7 at 213). If coal tipples become nuisances only when they are mismanaged, they are nuisances per accidens and not nuisances per se. Board of Education of Louisville v. Klein, 303 Ky. 234, 197 S.W.2d 427 (1946). As such, a coal tipple may not be shut down until it is found to be a nuisance in fact and that shutting it down is the only reasonable way of abating the nuisance. "
In conclusion, it is our opinion that a junkyard or recycling establishment as defined in KRS 177.905, found within the city limits and located closer than 1000 feet to the center line of any street which is part of any county, state, federal or limited access highway or turnpike, is subject to the state statutes requiring a permit for the operation of such an establishment. Establishments not subject to state regulation may be regulated by the city under its police power but it is doubtful that the city can prohibit entirely the operation of junkyards within the city limits as they are not normally considered to be nuisances per se.