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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Scenic Kentucky Challenges Regulations Allowing Electronic Variable Message Billboards  Posted: November 12, 2015

COMMONWEALTH OF KENTUCKY
FRANKLIN CIRCUIT COURT
CIVIL ACTION NO. 15-CI-1170
DIVISION NO. II

SCENIC KENTUCKY, INC.
P.O. Box 23317 Louisville, Ky. 40223-0317 PLAINTIFF

V. COMPLAINT AND PETITION FOR A DECLARATION OF RIGHTS

COMMONWEALTH OF KENTUCKY,
KENTUCKY TRANSPORTATION CABINET,
DEPARTMENT OF HIGHWAYS
200 Mero Street, Frankfort, Ky. 40622 DEFENDANT


* * * * *

INTRODUCTION

This action arises under the provisions of the Kentucky Declaratory Judgment Act, KRS 418.040 et seq., seeking a declaration of rights between the Plaintiff Scenic Kentucky and the Defendant Kentucky Transportation Cabinet, Department of Highways, (“KTC”), as to the legality and constitutionality of two regulations promulgated by the KTC; the first purporting to allow the erection of electronic advertising devices; and the second, to allow the pruning and removal of trees and other vegetation located on public rights-of-way along Kentucky roadways where the vegetation obscures the visibility of outdoor advertising devices.

An actual controversy exists between the parties in that Scenic Kentucky members, including but not limited to Stephen Porter, a current member of Scenic Kentucky, have aesthetic and safety interests that are implicated by the promulgation of these regulations and have asserted their legal and constitutional arguments regarding the regulations, yet the KTC has acted to finalize the regulations notwithstanding. The regulations were reviewed by the Interim Joint Committee on Transportation of the Kentucky General Assembly on November 5, 2015, and have become final regulations with immediate effect, causing immediate adverse effect on the interests of Scenic Kentucky and its members in that the regulations open the door for erection of electronic variable-message off-premise billboards and destruction of public property in order to improve billboard visibility for both legal conforming and nonconforming billboards.

Accordingly, a declaration of rights is appropriate in this case.

PARTIES

1. Scenic Kentucky, Inc. (hereinafter “SK”) is a non-profit corporation incorporated under the laws of the Commonwealth of Kentucky, with a principal office at P.O. Box 23317 Louisville, Ky. 40223-0317, whose mission is to “preserve, protect, and enhance the scenic and aesthetic character of Kentucky’s communities and roadsides.

2. Among the many SK members directly affected by the KTC’s regulations is Stephen Porter, an SK member in good standing who lives on Tucker Station Road in Louisville, Kentucky, is a 67-year resident of Jefferson County, and works in Jefferson County, Kentucky, and who has driven past electronic advertising devices both in the Louisville area and inside and outside of the Commonwealth, and is adversely affected by the additional distraction caused by the changing messages. Additionally, Mr. Porter has observed numerous instances in which the messages and visibility of billboards have been lessened by mature trees that have been growing in the rights-of-way, and would be adversely affected both aesthetically and as a Kentucky taxpayer, to the extent that the trees and natural vegetation lining Kentucky’s roadways would be able to be removed and destroyed under a state-issued permit in order to impose a unsolicited image and message on him and other members of the motoring public, and without public purpose or public benefit.

3. SK has representational standing to maintain this action on behalf of SK member Stephen Porter in order to vindicate his legally recognizable interest to avoid the distraction and aesthetic harm associated with electronic advertising devices, and to enjoy the natural landscape along the Commonwealth’s roadways. SK has representational standing also to maintain this action on behalf of SK member Porter and others, and of SK’s organizational interest, as taxpayers, in preventing the destruction of and conversion of public property without compensation for private purposes.

4. The Kentucky Transportation Cabinet is an agency of the Executive Branch of the Commonwealth of Kentucky, whose powers arise under statute and whose actions are circumscribed both by state law and the Kentucky Constitution. The Kentucky Transportation Cabinet through its Department of Highways has promulgated 603 KAR 10:021, which “establishes the standards for on-premise and off-premise electronic advertising devices,” making lawful the emplacement of such devices where they had previously been considered a prohibited activity. The KTC also promulgated 603 KAR 5:155, which “establishes a permitting process by which a noncommercial or a commercial entity may apply to the department for the removal of vegetation near state roads and highways.”

JURISDICTION AND VENUE

5. KRS 418.040 vests this court with jurisdiction over an action by a plaintiff seeking a declaration of rights, “either alone or with other relief,” where an actual controversy exists, and this Court “may make a binding declaration of rights, whether or not consequential relief is or could be asked.”

6. An actual controversy exists between the parties regarding the constitutionality and legality of 603 KAR 10:021 and 603 KAR 5:155, which the KTC believes are lawful and which SK believes to be in violation both of the Kentucky Constitution and KTC’s enabling statutes, as set forth in more detail below.

7. KRS 418.045 provides that any person “whose rights are affected by statute, municipal ordinance, or other governmental regulation . . . or who is concerned with any title to property” may apply to secure a declaration of rights and duties. That statute further provides that the enumeration of instances in KRS 418.045 where a declaratory judgment may be prayed and granted under KRS 418.040 “does not exclude other instances…whether such other instance be of a similar or different character to those” enumerated in KRS 418.045. SK, on behalf of member Stephen Porter and other SK members who oppose the proliferation of electronic advertising devices and the destruction of public property in the form of right-of-way trees and vegetation, has representational standing to seek a declaration of rights on their behalf with respect to the legality and constitutionality of 602 KAR 10:021 and 603 KAR 5:155.

8. Declaratory relief is appropriate in this case under KRS 418.065 since the requested declaration of rights will terminate the uncertainty and controversy that exists in this situation, and is squarely within the remedial purpose of KRS 418.040 to 418.090 announced in KRS 418.080, since a declaration of rights would afford “relief from uncertainty and insecurity with respect to rights, duties and relations” as between SK and the KTC.

9. Venue is appropriate in this Court inasmuch as the principal office of the KTC and of Kentucky state government is in Franklin County.

COUNT I

603 KAR 5:155 VIOLATES SECTIONS 3 AND 177 OF THE KENTUCKY CONSTITUTION

10. Numerical paragraphs 1-9 are incorporated herein by reference as if fully set forth below.

11. According to 42 Kentucky Administrative Register Number 4, the statutory authority for 603 KAR 5:155 is KRS 176.050(1)(i).

12. The “NECESSITY, FUNCTION, AND CONFORMITY” STATES THAT “KRS 176.050(1)(i) requires the department to promulgate administrative regulations concerning the care and maintenance of roads in the Commonwealth. This administrative regulation establishes a permitting process by which a noncommercial or a commercial entity may apply to the department for the removal of vegetation near roads and highways.”

13. 603 KAR 5:155 (2015) provides in part that:
Section 2. Vegetation Removal Permit Eligibility. (1) A permit to remove or prune vegetation in order to remove vegetative obstructions to the visibility of a noncommercial or commercial entity, including an outdoor advertising device, located in a public right-of-way under the jurisdiction of the Kentucky Transportation Cabinet, shall be obtained from the department, in accordance with this regulation, prior to entry or disturbance of the right-of-way.

(2) A permit to remove or prune vegetation by a noncommercial entity or a commercial entity shall be approved by the department:
(a) In order to improve the safety of the traveling public;
(b) If necessary to eliminate hazards to personal property;
(c) To enhance visibility for the traveling public;
(d) To eliminate an unsightly condition and improve roadway aesthetics if recommended by the department’s arborist or REDA as established in Sections 4 and 5 of this administrative regulation; or
(e) To remove the undesirable vegetation listed on the department’s Web site at www.
Transportation.ky.gov/permits/unless recommended by the department’s arborist or REDA.

603 KAR 5:155 (2015).

14. A permit issued pursuant to 603 KAR 5:155 would allow a private, non-governmental entity to enter upon and undertake activities on lands owned by the Commonwealth of Kentucky which would otherwise be unlawful, namely, removal or trimming of trees and vegetation in public rights-of-way.

15. Kentucky Constitution Section 3 provides in full that:

"All men, when they form a social compact, are equal; and no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services; but no property shall be exempt from taxation except as provided in this Constitution, and every grant of a franchise, privilege or exemption, shall remain subject to revocation, alteration or amendment."

16. The grant of a right to enter onto public land and to prune or remove trees and other vegetation, is a “franchise” or a “privilege” within the meaning of the Constitution.

17. As such, a permit allowing access to public property for removal of trees and vegetation belonging to the Commonwealth, cannot be granted except “in consideration of public services.”

18. 603 KAR 5:155 grants a permit holder an unconstitutional gratuity without any return consideration in the form of public services. There is nothing in the proposed regulation, 603 KAR 5:155, that provides a benefit or “public service” to the state or its citizens in return for the financial benefit derived by the advertising device owner from increasing or restoring the visibility of a private outdoor advertising device, 603 KAR 5:155 is inconsistent with Kentucky Constitution Section 3 and as such, is void.

19. Section 177 of the Kentucky Constitution provides in full that:

"The credit of the Commonwealth shall not be given, pledged, or loaned to any individual, company, corporation or association, municipality, or political subdivision of the State; nor shall the Commonwealth become an owner or stockholder in, nor make donation to, any company, association or corporation; nor shall the Commonwealth construct a railroad or other highway."

20. Since the permitting program would allow the destruction of public trees and other vegetation growing in state rights-of-way in order to improve visibility of advertising devices, the action would in effect donate the stumpage and amenity values of the right-of-way trees and other vegetation to a private entity in a manner violative of this Constitutional provision.

COUNT II

THE KENTUCKY TRANSPORTATION CABINET DEPARTMENT OF HIGHWAYS LACKS THE STATUTORY AUTHORITY TO ENACT A PERMITTING PROGRAM ALLOWING REMOVAL OR TRIMMING OF RIGHT-OF-WAY VEGETATION UNLESS REQUIRED FOR THE CARE AND PROTECTION OF PUBLIC ROADS

21. Numerical Paragraphs 1-20 are incorporated herein by reference as if fully set forth below.

22. KTC has identified the statutory authority for 603 KAR 5:155 is KRS 176.050(1)(i).

23. KTC has explained the “necessity, function, and conformity” of the regulation with KRS 176.050(1)(i) in this manner:
KRS 176.050(1)(i) requires the department to promulgate administrative regulations concerning the care and maintenance of roads in the Commonwealth. This administrative regulation establishes a permitting process by which a noncommercial or a commercial entity may apply to the department for the removal of vegetation near roads and highways.”

24. KRS 176.050(1)(i), which is cited as the statutory authority for the regulation, provides in full that:

The department shall:


(i) Promulgate administrative regulations under KRS Chapter 13A for the care and maintenance of roads after they have been constructed.

KRS 176.050(1)(i).

25. As written, a permit could be obtained to remove vegetation in public rights of ways in order to improve the visibility of farms, single family residences, and commercial businesses as well as outdoor advertising devices. A permitting program designed to remove state-owned trees and other vegetation in order to increase the visibility of structures and landscapes as well as off-road outdoor advertising devices is in no fashion a regulation “for the care” of a road or for the “maintenance” of a road.

26. KRS 13A.120 provides in part that:

(1) (a) An administrative body may promulgate administrative regulations to implement a statute only when the act of the General Assembly creating or amending the statute specifically authorizes the promulgation of administrative regulations or administrative regulations are required by federal law, in which case administrative regulations shall be no more stringent than the federal law or regulations.

27. There is no federal law requirement for vegetation removal, and no “specific authorization” to adopt such a regulation under KRS 176.050(1)(i), which is the sole basis cited by the KTC for the regulation.

28. Lacking the statutory authorization to adopt a regulation allowing removal or trimming of right-of-way trees and vegetation for reasons other than the “care and maintenance of roads,” the regulation is ultra vires and void.

COUNT III

THE LANGUAGE OF 603 KAR 5:155 CONTAINS NUMEROUS AMBIGUOUS AND INDEFINITE TERMS IN VIOLATION OF KRS 13A.222

29. Numerical Paragraphs 1-28 are incorporated herein by reference as if fully set forth below.

30. As noted above, 603 KAR 5:155 (2015) would require issuance by KTC personnel of a “permit to remove or prune vegetation by a noncommercial entity or a commercial entity” in public rights-of-way “in order to improve the safety of the traveling public, if necessary to eliminate hazards to personal property, to enhance visibility for the traveling public, to eliminate an unsightly condition and improve roadway aesthetics if recommended by the department’s arborist or REDA, or “to remove the undesirable vegetation listed on the department’s Web site[.]”

31. KRS 13A.222 provides the “Drafting rules” governing the drafting of administrative regulations, including sub nom 603 KAR 5:155, and provides in relevant part that:
(4) In drafting administrative regulations, the administrative body shall comply with the requirements established in this subsection.

(a) The administrative body shall use plain and unambiguous words that are easily understood by laymen. The administrative body shall avoid ambiguous, indefinite, or superfluous words and phrases.

32. 603 KAR 5:155 contains numerous “ambiguous” and “indefinite” words, and as such violates KRS 13A.222.

33. 603 KAR 5:155 Section 2(1)(a) requires approval of a permit to remove or prune vegetation in a public right-of-way where it would “improve the safety of the traveling public[.]” What constitutes an “improvement” is undefined and ambiguous, as is what standard would be used by a permit reviewer to determine whether the “safety” of the traveling public is implicated by a right-of-way tree or other vegetation.

34. 603 KAR 5:155 Section 2(1)(b) requires approval of a permit to remove or prune vegetation in a public right-of-way “if necessary to eliminate hazards to personal property.” It is unclear what is considered to be a “hazard,” and what is considered “personal property” and whose personal property is intended to be considered and protected – pedestrians, vehicular travelers, or owners of abutting property, for example. It is also unclear and ambiguous how right-of-way vegetation could pose a distinct hazard to personal (as opposed to real) property.

35. 603 KAR 5:155 Section 2(c) requires approval of a permit to remove or prune vegetation in a public right-of-way “[t]o enhance visibility for the traveling public[.]” It is ambiguous and unclear whether “enhance visibility for the travelling public” refers to the visibility of the road to a driver, or the visibility of the billboard located along the roadside and out of the right-of-way.

36. 603 KAR 5:155 Section 2(d) requires approval of a permit to remove or prune vegetation in a public right-of-way if determined by a KTC employee to be “unsightly,” or when that employee determines the removal or pruning to “improve roadway aesthetics[.]” It is entirely unclear and ambiguous what would be considered “unsightly” or whether trimming or removing trees would “improve roadway aesthetics,” and leaving the decision as to what is “unsightly” and what would “improve roadway aesthetics” to the permit reviewer asks for subjective and inconsistent decisions, since what to one person is an aesthetic natural vista might to another appear to be unsightly.

37. Since 603 KAR 5:155 contains numerous “ambiguous” and “indefinite” words that are key to the scope and implementation of the regulation, it violates KRS 13A.222 and should be set aside as contrary to law.

COUNT IV

603 KAR 10:021 IS UNREASONABLE IN LIGHT OF THE CONSTRAINTS IMPOSED UNDER KRS 177.850 AND 177.860, AND PROMULGATION OF A REGULATION ALLOWING ELECTRONIC ADVERTISING DEVICES VIOLATES THE PROHIBITION IN KRS 177.863(4) AND THE PROHIBITIONS IN KRS 13A.120

38. Numerical Paragraphs 1-37 are incorporated herein by reference as if full set forth below.

39. KRS 177.860 is identified as the statutory authority under Kentucky law for the promulgation of 603 KAR 10:021, Electronic Advertising Devices.

40. 603 KAR 10:021 would allow erection and conversion of “electronic advertising devices” in urban and urbanized areas under conditions established in the regulation. “Electronic advertising device” is defined in 603 KAR 10:002 in this manner:

(11) “Electronic advertising device”:
(a) Means an advertising device with a message that is changed by an electronic or mechanical process or remote control, including rotating cubes, rotating vertical triangular slats, turning lights on and off, glow cubes, light emitting diodes, cathode ray tubes, and florescent discharge or other similar technology, and
(b) Does not mean a numerical display changed by an electronic or mechanical process not exceeding one-half of the message face.

41. KRS 177.860, which is the sole statutory basis under Kentucky law identified as authority for adoption of 603 KAR 10:021, provides in full that:

177.860. Standards for billboard advertising.

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:

(1) An advertising device which is to be erected or maintained on property for the purpose of setting forth or indicating:

(a) The name and address of the owner, lessee, or occupant of the property; or

(b) The name or type of business or profession conducted on the property; or

(c) Information required or authorized by law to be posted or displayed on the advertising device;

(2) An advertising device which is not visible from any traveled portion of the highway;

(3) An advertising device indicating the sale or leasing of the property upon which it is placed;

(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 the advertising devices is compatible with the safety and convenience of the traveling public.

KRS 177.860 (Italics added).

42. KRS 177.850 establishes the general purposes of KRS 177.830 through 177.890, and provides in full that:

177.850. Purpose of KRS 177.830 to 177.890.

The general purposes of KRS 177.830 to 177.890 and its specific objectives and standards are:

(1) To provide for maximum visibility along interstate highways, limited-access highways, federal-aid primary highways, turnpikes, and connecting roads or highways;

(2) To prevent unreasonable distraction of operators of motor vehicles;

(3) To prevent confusion with regard to traffic lights, signs or signals or otherwise interfere with the effectiveness of traffic regulations;

(4) To preserve and enhance the natural scenic beauty or the aesthetic features of the aforementioned interstate highways, limited-access highways, federal-aid primary highways, turnpikes, and adjacent areas;

(5) To promote maximum safety, comfort and well-being of the users of said highways.

The question of whether state regulations allowing, for the first time, multiple-message variable electronic advertising devices, are “reasonable” under the authority granted by KRS 177.860, is whether the standards are “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,” those objectives being the provision of “maximum visibility along interstate highways, limited-access highways, federal-aid primary highways, turnpikes, and connecting roads or highways;” the prevention of “unreasonable distraction of operators of motor vehicles;” the prevention of “confusion with regard to traffic lights, signs or signals” and interference “with the effectiveness of traffic regulations;” “[t]o preserve and enhance the natural scenic beauty or the aesthetic features of the aforementioned interstate highways, limited-access highways, federal-aid primary highways, turnpikes, and adjacent areas;” and to “promote maximum safety, comfort and well-being of the users of said highways.”

43. 603 KAR 10:021 is not “reasonable” under the criteria established in KRS 177.850 and 177.860. The KTC lacks authority to promulgate the regulation for that reason.

44. KRS 177.863 governs the size, spacing, and illumination of highway advertising devices, and provides specific prohibitions, including, with respect to illumination of highway advertising devices, that:

Within any commercial or industrial zone or unzoned commercial or industrial area adjacent to a federal-aid primary highway, advertising devices shall be subject to the following standards:
. . . . .

(4) Lighting of advertising devices:

Advertising devices may be illuminated, subject to the following restrictions:

(a) Advertising devices which contain, include or are illuminated by any flashing, intermittent, or moving light or lights are prohibited, except those giving public service information such as time, date, temperature, weather, or similar information.

(b) Advertising devices which are not effectively shielded as to prevent beams or rays of light from being directed at any portion of the traveled way of the highway which are of such intensity or brilliance as to cause glare or to impair the vision of the driver of any motor vehicle, or which otherwise interfere with any driver's operation of a motor vehicle are prohibited.

(c) No advertising device shall be so illuminated that it interferes with the effectiveness of or obscures an official traffic sign, device or signal.

KRS 177.863 (Italics added).

45. “Electronic advertising devices” as defined in 603 KAR 10:002 and authorized in 603 KAR 10:021 violate the prohibition in KRS 177.863(4)(a).

46. The KTC lacks the statutory authority to adopt 603 KAR 10:021.

47. Adoption of 603 KAR 10:021 additionally violates KRS 13A.120, which prohibits an administrative body (including sub nom the KTC) from promulgating regulations that “modify or vitiate a statute or its intent.”

48. Adoption of 603 KAR 10:021 modifies and vitiates the intent and language of KRS 177.860, 177.850, and 177.863(4) and is thus void.

49. As noted above, KRS 177.860 is the sole statutory basis under Kentucky law identified as authority for adoption of 603 KAR 10:021. In relevant part, KRC 177.860 provides that:
177.860. Standards for billboard advertising.

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 the advertising devices is compatible with the safety and convenience of the traveling public.

KRS 177.860.

50. 603 KAR 10:021 requires the erection or conversion of electronic advertising devices to comply with local ordinances only where the “ordinances or regulations of a local governing body [ ] specifically regulates the erection and maintenance of electronic advertising devices[.]”

51. By limiting the state regulatory requirement for compliance only to those local ordinances or regulations that “specifically regulate[] the erection and maintenance of electronic advertising devices,” the KTC has modified and vitiated the language of KRS 177.860 requiring compliance with zoning regulations of more general applicability, such as general signage restrictions, that may make such a device unlawful under local zoning laws and regulations.

52. Additionally, using such a narrow reference invites significant expansion of electronic advertising devices immediately after the regulation becomes final, since few if any local planning and zoning commissions or legislative bodies have adopted ordinances or regulations specifically regulating electronic billboards, given that until recently, such devices had been illegal in Kentucky.

53. Inasmuch as 603 KAR 10:021 fails to require compliance with all applicable zoning regulations of local governments, the regulation is contrary to KRS 13A.120 and is an “unreasonable” standard not authorized under KRS 177.860 and inconsistent with KRS 177.860(4).

CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE, for the reasons above stated, Plaintiff respectfully requests that this Court:

1. Accept jurisdiction over this complaint and petition for a declaration of rights;

2. Docket this complaint and petition for a declaration of rights for early hearing as authorized under KRS 418.050;

3. Determine and declare that 603 KAR 10:021, to the extent that it authorizes the erection and maintenance of electronic advertising devices, is contrary to KRS 177.850, KRS 177.860, and KRS 177.863, and KRS 13A and is void;

4. Determine and declare that 603 KAR 5:155 violates Sections 3 and 177 of the Kentucky Constitution and is void;

5. Determine and declare that KTC lacks the statutory authority to promulgate 603 KAR 5:155 to the extent that the permit would allow vegetation control in public rights-of-way for any purpose not directly related to the care and maintenance of state roads; and

6. Grant such other relief pursuant to KRS 418.055 based on the declaratory judgment, order, or decree, as the Court deems necessary or proper, and to which Plaintiff may appear entitled.

Respectfully submitted,

RANDAL STROBO
DOWNEY STROBO PLLC
239 South Fifth Street, Suite 917
Louisville, Kentucky 40202
502) 290-9751
(502) 470-7380 (fax)
rstrobo@downeystrobo.com
KBA ID# 92767



TOM FITZGERALD
Kentucky Resources Council, Inc.
213 St. Clair Street, Suite 200
Post Office Box 1070
Frankfort, Kentucky 40602-1070
(502) 875-2428
(502) 875-2845 (fax)
KBA ID# 22370
fitzkrc@aol.com

Counsel for Plaintiff Scenic Kentucky, Inc.


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