Request By:
Ms. Sara Walter
Vice President and General Counsel
Naegele Outdoor Advertising Company
of Louisville
1501 Lexington Road
P.O. Box 7744
Louisville, Kentucky 40207
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise a question concerning OAG 83-277, written to you. That opinion concerned Kentucky's carrying out the national policy relative to outdoor advertising adjacent to the rights-of-way of Kentucky interstate highways, which rights-of-way were acquired prior to July 1, 1956.
As we said in that opinion, the 1958 Federal Bonus Act represented the initial federal effort at controlling outdoor advertising. See Public Law 85-381. The Act permitted states to agree with the federal government as to the state control of such advertising, and thus they would be exempt from the federal law. In the agreement between Kentucky and the United States of June 12, 1961, the Commonwealth agreed to issue interstate outdoor advertising regulations affecting areas historically called "Cotton areas." Such areas included areas adjacent to all portions of the Interstate System of Highways within Kentucky that are constructed upon any part of a right-of-way, the entire width of which was acquired prior to July 1, 1956. The said areas are those within 660 feet of the edge of the right-of-way of Kentucky Interstate System Highways, determined in accordance with national standards. The "Cotton areas" did not involve commercial or industrial zones within incorporated cities. Such latter areas were "Kerr areas" under federal legislation. The Kerr amendment was implemented by Kentucky. See 603 KAR 3:010; and KRS 177.860(4).
The gist of the 1961 agreement was that if Kentucky permits outdoor advertising in "Cotton areas," it must do so under national standards. We concluded in OAG 83-277 that Kentucky was under no affirmative duty to permit outdoor advertising in the "Cotton areas."
You now suggest that the Department of Transportation may, as a permissive action, enact administrative regulations providing for outdoor advertising in the "Cotton areas."
In 1976, some 15 years after the 1961 agreement with the United States, the General Assembly enacted KRS 177.841. It reads:
"(1) 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.
"(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
"(c) Signs advertising activities conducted on the property on which they are located."
KRS 177.841(1) expressly prohibits the erection or maintenance of advertising devices within the "Cotton areas" (i.e., within 660 feet of the right-of-way of any interstate highway) . Subsection (2) prohibits the erection or maintenance of advertising devices outside of urban areas and "beyond or outside of "Cotton areas" (beyond 660 feet of the right-of-way of any interstate etc.), except for directional and official signs and notices; signs advertising the sale and lease of property upon which they are located; or signs advertising activities conducted on the property of sign location. Subsection (1) of the statute is subject to the expression: "Except as otherwise provided in KRS 177.830 to 177.890."
You argue that the latter exception mentioned above should be read in conjunction with KRS 177.865(2), which reads as follows:
"(2) Adoption of this section and KRS 177.860 shall in no way preclude or prevent the erection of highway advertising on exempted rights-of-way as provided in Public Law 85-381."
According to your line of reasoning, the "otherwise" language in KRS 177.841(1) has been taken advantage of by the legislature in KRS 177.865(2) and that by this latter statute the legislature has recognized the "Cotton areas." Therefore, the argument goes, the Kentucky Commissioner of Highways can allow by regulation certain advertising within the "Cotton areas."
While such an argument certainly can be made, we are inclined to believe that the Kentucky General Assembly specifically expressed its intent concerning the "Cotton areas" when it enacted KRS 177.841(1) and expressly prohibited the erection or maintenance of advertising devices within the "Cotton areas." The fact that the Kentucky General Assembly did not mention the element of time of acquisition of rights-of-way indicates to us that it intended to prohibit such advertising regardless of when such rights-of-way were acquired.
When KRS 177.865(2) is read in connection with the rest of that statute and KRS 177.860, it does not appear to us that KRS 177.865(2) was meant to carve out an exemption to the prohibitions on advertising set forth in KRS 177.841. Rather, it was simply a part of the legislation to allow certain advertising devices within the highway rights-of-way to provide directional information for establishments offering goods and services to the traveling public.
Therefore, we reaffirm OAG 83-277 and further conclude that, because of the express prohibition set out in KRS 177.841(1), the State does not have the authority to issue regulations allowing advertising within the so-called "Cotton areas." Of course, this matter will ultimately have to be resolved by the courts.