UNISIGN, INC. v. COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS
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RENDERED:
October 30, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1997-CA-002527-MR
UNISIGN, INC.
v.
APPELLANT
APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE DAVID L. KNOX, JUDGE
ACTION NO. 97-CI-00210
COMMONWEALTH OF KENTUCKY,
TRANSPORTATION CABINET,
DEPARTMENT OF HIGHWAYS
APPELLEE
OPINION
AFFIRMING
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BEFORE:
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HUDDLESTON, KNOPF, and MILLER, Judges.
MILLER, JUDGE.
Unisign Corporation, Inc. (Unisign), brings this
appeal from an August 29, 1997 order of the Scott Circuit Court
granting summary judgment and a permanent injunction.
We affirm.
On February 18, 1997, Unisign filed applications with
the Kentucky Transportation Cabinet, Department of Highways
(Cabinet) for permits to erect "off-premise" billboards1.
The
proposed location for these billboards was adjacent to and within
660 feet of I-75, an interstate highway, in Scott County, Ken1
Off premise billboards are those setting forth information pertaining to businesses or entities not located on the
property where the billboards are situated.
tucky.
Pursuant to Ky. Rev. Stat. (KRS) 177.841, signs within
660 feet of interstate highways are prohibited.
In order to
erect the billboards in question, Unisign sought to come within
the exception to that statute found in KRS 177.860(4) pertaining
to “commercially and industrially developed areas.”
On April 8,
1997, the Cabinet notified Unisign that its applications were
denied on the basis that the proposed site did not qualify as a
“commercially or industrially developed area.”
KRS 177.860(4).
Specifically, the locations, as determined by the Cabinet, did
not contain ten (10) separate commercial or industrial enterprises located within 1,620 feet of each other as dictated by 603
Ky. Admin. Reg. (KAR) 3:080.
Despite its failure to obtain the appropriate permits,
Unisign erected two structures and began construction of a third
at the proposed location.
On May 9, 1997, the Cabinet filed a
verified complaint claiming that the structures were in violation
of the Kentucky Billboard Act (codified in KRS 177.830 - .890).
The complaint further requested a permanent injunction against
Unisign for removal of its structures.
Unisign filed a counter-
claim on May 15, 1997, maintaining that the regulations enunciated in 603 KAR 3:080 were invalid and unenforceable.
Initially,
a restraining order barred further construction of the billboards
and placement of advertisements on the existing structures.
A
temporary injunction was granted on July 23, 1997, after which
the Cabinet moved for summary judgment.
Said motion was granted,
and a permanent injunction was entered on August 29, 1997,
requiring Unisign to remove the structures.
lowed.
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This appeal fol-
Unisign asserts the following points of error: (1) that
KRS 177.860(4) constitutes an impermissible delegation of legislative authority; (2) that, alternatively, if there were no
improper delegation of authority, 603 KAR 3:080 § 1(8) exceeds
the delegation; (3) that the permanent injunction was prematurely
issued; (4) that the circuit court failed to join an indispensable party; and (5) that the Cabinet selectively enforced the
statute and its regulations.
For a better understanding of the issues herein, we set
forth, in relevant parts, the applicable statutes and regulations.
KRS 177.841
Except as otherwise provided in KRS 177.830
to 177.890, the erection or maintenance of
any advertising device upon or within six
hundred and sixty (660) feet of the right of
way of any interstate highway or federal aid
primary highway is prohibited.
KRS 177.860
The commissioner of the Department of Highways shall prescribe by regulations reasonable standards for the advertising devices
hereinafter enumerated, designed to protect
the safety of and to guide the users of the
highways and otherwise to achieve the objectives set forth in KRS 177.850, and the erection and maintenance of any of the following
advertising devices, if they comply with the
regulations, shall not be deemed a violation
of KRS 177.830 TO 177.890:
. . .
(4) Advertising devices which otherwise comply with the applicable zoning ordinances and
regulations of any county or city, and which
are to be located in a commercially or industrially developed area, in which the commissioner of highways determines, in exercise of
his sound discretion, that the location of
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the advertising devices is compatible with
the safety and convenience of the traveling
public.
603 KAR 3:080 §1
(8) "Commercially or industrially developed
area" means, as it is applied to interstate
and parkway highways only:
(a) Any area within 100 feet of, and including any area where there are located within
the protected area at least ten (10) separate
commercial or industrial enterprises, not one
of the structures from which one (1) of the
enterprises is being conducted is located at
a distance greater than 1620 feet from any
other structure from which one (1) of the
other enterprises is being conducted; and . .
.
We first address the constitutionality of KRS 177.860(4) in its attempt to delegate legislative authority.
It is
our opinion that Diemer v. Commonwealth of Kentucky, Transportation Cabinet, Department of Highways, Ky., 786 S.W.2d 861 (1990),
is controlling.
In Diemer, the Cabinet filed two declaratory
judgment actions seeking to have certain billboards declared in
violation of the Kentucky Billboard Act and an injunction to
require removal of the signs.
The specific statutory provision
alleged to have been violated was KRS 177.841(2)which reads:
(2) The erection or maintenance of any advertising device located outside of an urban
area and beyond six hundred and sixty (660)
feet of the right-of-way which is legible
and/or identifiable from the main traveled
way of any interstate highway or federal aid
primary highway is prohibited with the exception of:
(a) Directional and official signs and
notices;
(b) Signs advertising the sale or lease of
property upon which they are located; or
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(c) Signs advertising activities conducted
on the property on which they are located.
KRS 177.830(10) provided:
(10) "Urban areas" means those areas which
the secretary of transportation, in the exercise of his sound discretion and upon consideration being given to the population within
boundaries of an area and to the traveling
public, determines by official order to be
urban; provided, however, that any such determination or designation of the secretary
shall not, in any way, be at variance with
the federal law or regulation thereunder or
jeopardize the allotment or qualification for
federal aid funds of the Commonwealth of
Kentucky.
The billboards in Diemer were located outside of an "urban area"
as defined in 603 KAR 3:010 §2(17) and 3:020 §2(20), promulgated
pursuant to KRS 177.830(10).
The main issues in Diemer were whether KRS 177.841(2)
was "so vague and overbroad as to be a constitutionally impermissible exercise of police power, and whether the statute as worded
represents an unconstitutional delegation of legislative power to
executive authority."
The Kentucky Supreme Court responded in
the affirmative to each of these questions.
Noting the duty of the legislature to define statutory
terms “so that persons of ordinary intelligence do not have to
guess at their meaning,” the Diemer Court determined that the
term "urban area," as found in KRS 177.841(2), was subject to
many interpretations depending upon one's viewpoint.
that
It stated
"[u]sing the term 'urban' to characterize an area presents
almost limitless problems with regard to density, geographic
relationship, and the character of the habitation."
Accord-
ingly, the Court held KRS 177.841(2) to be vague and overbroad.
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The Diemer Court further ruled that the legislature
could not cure said defect by transferring to the secretary of
transportation (secretary), the power to define the term urban
area. The Court reminded us of Kentucky’s strict adherence to the
separation of powers doctrine under the Kentucky Constitution
§§27 and 28.
It emphasized that under this doctrine, the duty of
the legislature to define statutory terms is nondelegable.
In
Diemer, the secretary was given virtually unlimited power to
define the statutory term in question.
Hence, such delegation
was deemed an unconstitutional delegation of legislative authority.
We believe Diemer sufficiently analogous to the case at
hand.
It is our opinion that in the case sub judice, the legis-
lature failed to sufficiently define the term commercially and
industrially developed area as found in KRS 177.860.
As in
Diemer, a person of ordinary intelligence would have to guess at
its meaning, it being subject to many interpretations.
Further-
more, the term raises numerous questions of density and geographic relationship.
The legislature failed to define the term and, as in
Diemer, delegated that authority to an administrative agency.
The Commissioner of the Department of Highways (commissioner) was
granted broad discretion to define the term and was restricted
only by the requirement that the regulations be reasonable and
designed to protect and guide the users of the highway.
This
unfettered grant of authority causes the entire prohibitive power
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of the statute to lie with the commissioner and, thus, is impermissible.
In sum, we conclude that KRS 177.860(4) is indeed
unconstitutionally vague and overbroad. It fails to put a person
of ordinary intelligence on notice as to what constitutes a
“commercially or industrially developed area” for the purpose of
erecting billboards.
Furthermore, such defect cannot be cured by
transferring to the commissioner the power to define the term.
Such a transfer of authority is an unconstitutional delegation of
legislative power.
Having held KRS 177.860(4) unconstitutional, Unisign’s
assertion that 603 KAR 3:080 §1(8) exceeded statutory authority
is moot.
We deem Unisign's argument alleging the premature
issuance of an injunction as without merit.
KRS 177.830 clearly
states that an advertising device includes "structure[s] erected
or used in connection with the display of any device and all
lighting or other attachments used in connection therewith
[emphasis added] . . . ."
Unisign’s applications to the depart-
ment and the leases entered into by Unisign and the landowners
clearly indicate that the purpose of erecting the structures in
question was to display advertising.
Hence, they were erected
"in connection" with the display of advertising devices.
As
such, it is our opinion that the circuit court did not err by
issuing said injunction.
Next, we dispense with Unisign's contention that the
circuit court committed reversible error when it failed to join
the landowners as indispensable parties.
Under the precepts of
Commonwealth of Kentucky, Department of Fish and Wildlife Re-7-
sources v. Garner, Ky., 896 S.W.2d 10 (1995), it is our opinion
that the landowner is not an indispensable party to this lawsuit.
Ky. R. Civ. P. (CR) 19.01.
Last, as to Unisign's argument regarding selective
enforcement of the statutes and regulations in question, we find
nothing in the record to indicate this issue was preserved for
appellate review; nor does Unisign direct us to same.
it is rejected.
As such,
See Port v. Commonwealth, Ky., 906 S.W.2d 327
(1995), Commonwealth v. Duke, Ky., 750 S.W.2d 432 (1988), Daugherty v. Commonwealth, Ky., 572 S.W.2d 861 (1978).
In conclusion, although we disagree with the circuit
court that 603 KAR 3:080 §1(8) is constitutional and the product
of a constitutional delegation of authority, we affirm the case
for other reasons.
See Revenue Cabinet, Commonwealth of Kentucky
v. Joy Technologies, Inc., Ky. App., 838 S.W.2d 406 (1992).
Because the exception under which Unisign seeks to erect its
billboards is void, the general prohibition against billboards
within 660 feet of the interstate highways precludes erection of
the billboards.
We believe this opinion is in conformity with
KRS 446.090 pertaining to the severability of statutes.
See
Puckett v. Miller, Ky., 821 S.W.2d 791 (1992).
For the foregoing reasons, we affirm the Order of the
Scott Circuit Court.
HUDDLESTON, JUDGE, CONCURS.
KNOPF, JUDGE, CONCURS IN RESULT.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Marrs Allen May
Pikeville, KY
A. B. Chandler III
Attorney General
Richard M. Rawdon, Jr.
Georgetown, KY
Stuart W. Cobb
Assistant Attorney General
Frankfort, KY
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