Request By:
Mr. Edward D. Hays
Legal Counsel for City of Danville
111 South Fourth Street
Danville, Kentucky 40422
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of December 11 in which you, as legal counsel for the city of Danville, request an opinion concerning the access and use of a public street by a commercial establishment. The basic facts are as follows. The owners of a lot located on the corner of U.S. Highway 127 [a major thoroughfare] and Lisa Avenue [a residential street] propose to erect a Hardee's Restaurant. The properties along Lisa Avenue are single family and low density residences zoned residential though the lot in question is zoned highway commercial.
The construction plans of the restaurant provide for an entrance and exit, both on Highway 127 and on Lisa Avenue, and many residents are objecting to the proposed entrance and exit along the residential street. However, the planning and zoning commission has failed to take any action on the grounds that it has no authority to prohibit the proposed exit on Lisa Avenue since there are no applicable zoning regulations. Under the circumstances, you raise the following question.
"We would appreciate your opinion as to whether or not the Danville City Commission can prohibit Hardee's access onto Lisa Avenue under the foregoing set of facts. If so, what type of hearing or determination would have to be made and what procedure would have to be employed."
Though the city may not have any applicable zoning regulations, it probably could enact such regulations under the terms of KRS 100.203 (1) (g) authorizing regulations pertaining to activities on land at or near major thoroughfares and intersections, exchanges, etc., having a special character or use that might affect the surrounding areas. Be that as it may, we are faced with a lot that is zoned commercial upon which a legitimate business is to be located requiring adequate ingress and egress to the property. It is the general rule that the most important right incident to the ownership of property abutting on a street is the owner's right of access, or in other words, his right to ingress and egress. This includes not merely his right to go into and come from his premises but also the right to have the premises accessible to patrons, clients, customers and visitors generally with a degree of convenience and ease which under the circumstances are reasonable. See McQuillin, Mun. Corps., Vol. 10, § 30.63, and the case of
Allsmiller v. Johnson, 309 Ky. 695, 218 S.W.2d (1949).
A case somewhat in point arose in the city of New York and is styled
City of Yonkers v. Rentways, Inc., 280 App. Div. 821, 113 NYS 803 (1952). Here a garage was located on a lot zoned commercial and was in common with an adjacent lot in the rear located in a residential district and fronting on the next parallel street which was so zoned. The city sued to prevent the proprietors of the garage from using the rear lot as a means of access. However, the court found for the proprietors on the grounds that the use of the land or access was an integral part of the garage business. See Williams American Land Planning Law, Vol. 4, § 93.06.
Under the circumstances and in view of the limited facts presented, we believe that the owners of the restaurant in question are entitled to provide for an access entrance along the residential street. On the other hand, if the city had zoned the street for residential uses only, application for a zoning change would have to be made pursuant to Ch. 100 KRS which would require an appropriate hearing as provided in KRS 100.211. However, in the absence of any zoning restriction, we do not believe the commission can prohibit the proposed access to the side street.