Request By:
Mr. Gary Wesley
Route 6
Liberty, Kentucky 42539
Opinion
Opinion By: Steven L. Beshear, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your recent letter in which you, on behalf of the city of Liberty, seek an opinion concerning the legal effect of a section of an ordinance relating to nonconforming uses as applied "to a nonconforming used car lot that has moved a sign from one side of the business to the other side." The pertinent section of the ordinance, Section 2.42(A) reads as follows:
"Extensions: A nonconforming use shall not be extended or moved to occupy any portion of the premises, either land or a structure, which was not originally occupied by the nonconforming use. "
KRS 100.253 governs nonconforming uses and contains the following excerpt which we believe applicable to your question:
"(1) The lawful use of a building or premises, existing at the time of the adoption of any zoning regulations affecting it may be continued, although such use does not conform to the provisions of such regulations, except as otherwise provided herein.
(2) The board of adjustments shall not allow the enlargement or extension of a nonconforming use beyond the scope and area of its operation at the time the regulation which makes its use nonconforming was adopted, nor shall the board permit a change from one (1) nonconforming use to another unless the new nonconforming use is in the same or a more restrictive classification . . ."
Initially, let it be stated that no ordinance or provision thereof can conflict with a statute governing the same subject. For example, we refer you to the case of
City of Harlan v. Scott, 290 Ky. 585, 162 S.W.2d 8 (1942), from which we quote the following:
". . . An ordinance may cover an authorized field of local laws not occupied by general laws but cannot forbid what a statute expressly permits and may not run counter to the public policy of the state as declared by the Legislature."
Reference is next made to McQuillin, Municipal Corporations, Vol. 5, § 15.22, wherein the following general rule is stated:
"It has been stated broadly that no municipal ordinance can go beyond, be broader than, add to, subtract from, modify or affect, limit, amend, or change statutes, at least where the net result is one of conflict . . ."
See
Louisville & Nashville Railroad Company v. Commonwealth, Ky., 488 S.W.2d 329 (1972), and
City of Bowling Green v. T. & E. Electrical Contractors, Ky., 602 S.W.2d 434 (1980).
In interpreting KRS 100.253, as it relates to the provision of the ordinance prohibiting a nonconforming use facility to move any portion of a structure from one part of a premise to another, it would appear that said provision is too restrictive and extends beyond the intent of the statute. The statute controlling the expansion of nonconforming uses relates to changes in the use of the property and structural changes which are substantial in nature and not mere changes incidental to the nonconforming use. See
Attorney General v. Johnson, Ky., 355 S.W.2d 305 (1962), which states:
"It is also pointed out in the case of
Bosworth v. Lexington, 277 Ky. 90, 125 S.W.2d 995 (1939), that proposed changes in nonconforming uses which specifically relate to the use that was maintained prior to the adoption of the zoning ordinance making it nonconforming, should be liberally construed in order to carry out the spirit of the law and prevent a hardship to the owner."
Next referring to the case of
Carrithers & Son v. City of Louisville, 250 Ky. 462, 63 S.W.2d 493 (1933), we find the court declaring that:
". . . The extending the walls of the building so as to enclose space for the relocating the can-washing and by-products rooms is not a vital and substantial change of the building in its characteristic or of the fundamental purpose of its creation, nor is it a change of such a nature as materially affects the realty itself, or its use, or the health, morals, or general welfare of the zoned district.
Plaza Amusement Co. v. Rothenberg, 159 Miss. 800, 131 So. 350;
Pross v. Excelsior Cleaning & Dyeing Co., 110 Misc 195, 179 N.Y.S. 176. The application for the permit requests no more than a structural change within the meaning of these terms.
City of Earle v. Schackleford, 177 Ark. 291, 6 S.W. (2d) 294. 'Structural alterations' intended to be prohibited by the zoning ordinance are the changing an old building in such a way as to convert it into a new or substantially different structure . . ."
It would thus appear that the mere change in the location of the advertising sign would not constitute a violation of KRS 100.253 as it is not a substantial structural change, but one that is merely incidental to the continued operation of the nonconforming use. True, it does appear to violate the expressed language of the city ordinance, particularly Subsection (A) of Section 2.42. However, this provision, we believe, goes beyond the scope and intent of KRS 100.253 as being more restrictive than permitted by the statute and thus making it invalid and unenforceable in our opinion.