Request By:
Richard H. Nash, Jr., Esq.
235 South Fifth Street
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning KRS 80.110 and the definition of "public structure" as used in that statute. You ask whether a building containing six to ten dwelling units with each unit existing for the purpose of family living would be considered a "public structure." There would be no access to and from the building by any persons other than the families housed therein and officials of the housing authority, including maintenance personnel. You are wondering whether such a structure as that described above would be a "public structure" or whether "public structure" would be a building to which the general public would have access, such as an office building, a city hall, a courthouse, etc.
KRS 80.020 to 80.257 deal with municipal housing authorities and KRS 80.110 provides as follows:
"All low-cost housing projects are subject to the planning, zoning, sanitary and building laws, ordinances and regulations applicable to the locality in which the project is situated. In a city of the first class, the housing authority shall submit to the city planning and zoning commission the location, character and extent of any new street, square, park or other public way, ground or open space, or any public structure or public utility, for approval in the manner provided in KRS 100.197." (Emphasis added.)
In the case of
Lewis v. Commonwealth, 197 Ky. 449, 247 S.W. 749 (1923), the Court considered whether being drunk while in a room in a hotel constituted a public offense as the defendant had been accused of being drunk or intoxicated in a public place or building. The Court defined "public place or building" as follows:
"Manifestly that language means a place exposed to the public, and where the public gather together or pass to and fro, and the building referred to means a public one, and belonging to or used by the public for the transaction of public or quasi public business, such as a schoolhouse, courthouse, or other similar one. . . ."
In
People v. Martinez, 250 N.Y.S.2d 28, 31, 43 Misc.2d 94 (1964), the Court said in part that "A public building is one 'belonging to or used by the public for the transaction of public or quasi public business.'"
The Court, in Scotch Plains Tp. v. Town of Westfield, 83 N.J. Super. 323, 199 A.2d 673 (1964), defined a "public building" as follows:
"Any building held, used, or controlled exclusively for public purposes by any department or branch of government, state, county or municipal, without reference to the ownership of the building or of the realty upon which it is situated. * * * A building belonging to or used by the public for the transaction of public or quasi public business."
"Public place" is a relative term and what is a public place for one purpose may not be for another purpose. See
Gulas v. City of Birmingham, Ala., 94 So.2d 767 (1957). Criminal statutes prohibiting drunkenness, disorderly conduct and indecent exposure in public places sometimes extend to areas not normally considered public places such as the hallways of apartment buildings and apartment windows.
However, after considering the context within which the phrase "public structure" is used in KRS 80.110, and in view of the general definition of a public building, it is our opinion that a "public structure," as used in that particular statute, does not include a building containing six to ten dwelling units used for the purpose of family living which is accessible only to the occupants and the officials and employes of the housing authority. That section of the statute containing the phrase "public structure" also refers to a street, square, park or other public way, ground or open space or public utility, all of which refer to areas or services accessible to and used by the general public. Finally, an apartment building is not normally considered as a place where public or quasi-public business is transacted and, thus, it would not generally be considered a public structure.
Even though the building in question is not, in our opinion, a "public structure" it appears to be part of a housing project. Assuming it does constitute a housing project, it is governed by the first sentence in KRS 80.110 which provides that, "All low-cost housing projects are subject to the planning, zoning, sanitary and building laws, ordinances and regulations applicable to the locality in which the project is situated. " Since the building in question is not a "public structure" it is not subject to the second sentence of KRS 80.110, applicable to a city of the first class, and covering various areas, places, buildings and services accessible to and used by the public. Compare this particular portion of this statute with KRS 100.361 and 100.324 whereby instrumentalities of the state (including cities and counties) as well as certain public utility service facilities are exempt from the provisions of KRS Chapter 100 (Planning and Zoning) .