Request By:
Mr. Dennis A. Gordon
Director
Hardin County Planning and
Development Commission
Court House/Public Square
Elizabethtown, Kentucky 42701
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions in connection with the implementation of the county's recently enacted land use/development ordinance.
You state that junkyards, auto salvage dealers and used car establishments are required to have permits from the Department of Highways to operate along state highways. Many of those businesses in Hardin County do not have the necessary permits but have been in existence for some time and were in business on the effective date of the ordinance.
You ask whether these businesses must be considered pre-existing uses even though they are operating outside the law.
We do not know how the ordinance in question handles junkyards and recyclers, and the limitations placed upon such establishments. KRS 177.905 to 177.950 deals with automobile, vehicle and machinery recyclers and material recyclers and, generally, requires that such businesses obtain a permit. There is a provision, however, which under certain conditions exempts such establishments from the permit requirements. KRS 177.912 states as follows:
An automobile, vehicle or machinery recycling establishment or place of business or material recycling establishment or place of business which complies as a conforming use in an industrially zoned area under the applicable zoning ordinances and regulations of any county or city, as determined in the discretion of the commissioner of highways, shall not be deemed to be in violation of KRS 177.905 to 177.950."
If KRS 177.912 is not applicable and a permit from the state is required and the place of business is in a location compatible with the zoning ordinance, the zoning provisions do not enable the business to dispense with the statutory permit requirements. In McQuillin Mun. Corp. (3rd Ed.), Vol. 8, § 25.12, the following appears:
"Although the general aim of both zoning and licensing regulations is the promotion of the general welfare, each is independent of the other and seeks to accomplish its purpose by a different means. The fact that a zoning ordinance permits a use in a particular district does not authorize the use there without a license. On the other hand, a license or permit does not authorize a use in violation of zoning laws. In other words, a license or permit does not relieve one from complying with the zoning ordinance, and this is generally true of a state license or permit."
In the case of
Primm v. City of Reno, Nev., 252 P.2d 835 (1953), the court said in part at page 840 of its opinion:
"As stated in
Marshall v. Holbrook, 276 Mass. 341, 177 N.E. 504, 506, 'But this zoning ordinance is not in its legal effect like a license or legislative sanction to carry on in a district every kind of business that may not be expressly excluded therefrom, and if there are reasons apart from the zoning law why the business may not legally be carried on in the district, the zoning law in the case at bar furnishes no protection to it.' To the same effect:
Beane v. H. K. Porter, Inc., 280 Mass. 538, 182 N.E. 823;
Burroughs Landscape Const. Co. v. Town of Oyster Bay, 186 Misc. 930, 61 NYS2d 123;
People v. Elkin, 196 Misc. 188, 80 NYS2d 525."
Again, we do not know how the ordinance in question handles junkyards and recycling establishments. If the utilization of the concept of 'nonconforming use' is being contemplated, we direct your attention to McQuillin Mun. Corp. (3rd Ed.), Vol. 8A, § 25.185 where the following appears:
"The term 'nonconforming use' is employed in the law of zoning, for the most part, to refer to a use which not only does not conform to the general regulation or restriction governing a zoned area, but which lawfully existed at the time that the regulation or restriction went into effect and has continued to exist without legal abandonment since that time. In other words, it is a use that existed and was lawful when the restriction became effective and which has continued to exist since that time. . . ." (Emphasis added.)
In McQuillin Mun. Corp. (3rd Ed.), Vol. 8A, § 25.181 it is stated, "Generally speaking, a use existing at the time a zoning ordinance goes into effect cannot be prohibited or restricted by the ordinance, where it is a lawful use of property, is not a public nuisance or harmful to the public health, safety, morals or welfare." See also 101A C.J.S. Zoning and Land Planning §§ 154 and 160 and KRS 100.111(13).
Thus those junkyards and recycling establishments which have not satisfied the provisions of KRS 177.912 and are subject to the provisions of KRS 177.905 to 177.950 cannot rely upon satisfying zoning provisions to escape the statutory permit requirements. Furthermore, they could not qualify as a "nonconforming use" if they were not lawfully in existence prior to the effective date of the zoning ordinance.
Your second factual situation begins by stating that subdivision regulations have been in effect since August of 1979. The previously adopted subdivision regulations were repealed and new provisions were incorporated into the new development ordinance. You have now discovered a situation where a subdivision was illegally formed and houses illegally built during the existence of the old regulations. You ask whether you should subject the subdivision to the standards of the old subdivision regulations or the new development ordinance.
As stated in 101A C.J.S. Zoning and Land Planning § 105, a zoning ordinance is generally operative from its effective date and only from that date. Zoning measures are essentially prospective in operation and ordinarily have no retroactive effect unless the authorizing legislation specifically so states.
Thus the regulations or provisions enacted in 1984 apply from the date of their enactment and they would not be applicable to situations taking place prior to that date.