Request By:
Hon. Benjamin J. Hays
Attorney at Law
56-58 South Main Street
Winchester, Kentucky 40391
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 25 in which you relate the following facts and questions:
We represent the Winchester, Clark County, Tourist Commission which maintains a tourist information center on Kentucky Highway No. 1958 (Winchester By-Pass) in Winchester, Kentucky. Situated in front of the information center is a directional sign to call attention to motorists to this center. This sign is situated on either city or state right-of-way and we believe it is on the city right of way.
The local zoning enforcement officer has advised the Tourist Commission that the sign must be removed from the right-of-way.
We would appreciate your opinion concerning whether or not this sign, erected by a city-county joint commission, is subject to applicable city zoning ordinances which prohibit the erection of signs upon right-of-ways.
We will also appreciate knowing under what circumstances this type of directional sign may be erected on state right-of-way.
In response to your initial question we refer you to KRS 100.203(1)(b) which authorizes cities and counties to enact zoning regulations controlling the "width, height, location of structures, buildings and signs." Referring next to McQuillin, Mun. Corps., Vol. 8, § 25.131j, we quote the following:
"Billboards and signs are subject to regulation and restriction by a municipal corporation under general police measures, as well as under zoning laws and ordinances. Such structures or devices may be excluded from particular zones or districts, or even from the entire municipality, provided the restriction or exclusion is reasonable, and substantially related to the public welfare.
"Generally signs and billboards may be erected in designated zones in accordance with a permit or license, as a special use, or as a variance or exception under the zoning ordinances, or as an auxiliary or accessory use in connection with an activity or use lawfully being carried on in the zone. "
Next referring to McQuillin, Mun. Corps., Vol. 7, § 24.384, we quote the following:
"Municipal regulations and requirements relative to billboards, signboards, or other outdoor advertising structures may relate to their construction, motion, use, size, height, a certain distance between the bottom of the board and the ground or an open space of a specified height underneath the board to permit a view of the ground behind it, attachment or separation from buildings, location, distance between billboards or between billboards and other structures or lot sidelines, and other matters."
On the other hand, it is further noted in McQuillin, Mun. Corps., Vol. 7, § 24.381:
"Municipal power to regulate billboards, signs, posters, and outdoor advertising generally is not unlimited. An ordinance regulating such structures and advertising must be reasonable. . . ."
The city of Winchester has without question the right to regulate the location of signs under the statutory zoning authority referred to above as well as its general police power, regardless of whether the sign is located on private property over which the city has acquired a right of way, or public property owned and controlled by the city.
On the other hand, if the sign is located on state property or on a state right of way, it would in all probability be exempt from local zoning regulations under KRS 100.361(2), which reads as follows:
"Nothing in this chapter shall impair the sovereignty of the commonwealth of Kentucky over its political subdivisions. Any proposal affecting land use by any department, commission, board, authority, agency, or instrumentality of state government shall not require approval of the local planning unit. However, adequate information concerning such proposals shall be furnished to the planning commission by the department, commission, board, authority, agency, or instrumentality of state government. "
Pursuant to the above statute, the state, its agencies and instrumentalities, are exempt from local zoning legislation, and, as a consequence, if the directional sign is erected on the state right of way, it would in all probability be a matter for the state Bureau of Highways to determine whether it may remain or be removed.