Agenda - Planning Commission - 02/06/2014

Home

December 25, 2013 I Volume 7 I Issue 24 Zoning Law Bulletin Subsequently, the City asked the district court to issue injunctive relief, requiring BBC to remove its advertising benches at bus stops in the City. The district court granted the injunction. BBC appealed. Among other things, BBC argued that under Kentucky statutory law, it had the right to maintain benches at TANK bus stops. BBC cited Ky. Rev. Stat. Ann. § 100.324(1). In relevant part, that statute provides that: "public utilities operating under the jurisdiction of the Public Service Commission . . shall not be required to receive the approval of the planning unit for the location or relocation of any of their service facilities." TANK was a "public utility" and BBC contended that TANK was not required to receive the approval of the City for the location or relocation of any of its service facilities. BBC thus argued that BBC's benches located at TANK bus stops constituted TANK service facilities covered by the statutory exemption, and that therefore BBC's benches at TANK bus stops were exempted from the City Ordinance. In other words, BBC asked the court to construe broadly the exemption from local ordinances under Kentucky law so that the exemption would run to all property located at TANK's service facilities, whether the property was TANK's or the property of a private party like BBC. In a slight variation of the same argument, BBC also argued that TANK could "allow" third parties to locate property at TANK bus stops and thereby receive the benefit of TANK's exemption under § 100.324(1). DECISION: Judgment of United States District Court affirmed. The United States Court of Appeals, Sixth Circuit, rejected BBC's arguments. It held that the statutory exemption under § 100.324(1) from local zoning ordinances did not shield BBC's benches from the City Ordinance 0-2-09. In so holding, the court looked to the plain language of the statue. The court noted that § 100.324(1) exempted public utilities like TANK from receiving prior approval "for the location or relocation of any of their service facilities." (Ky.Rev.Stat. Ann. § 100.324(1) (emphasis added by the court)). The court noted that the statute granted the exemption only to "public utilities" and that the statute's use of the possessive pronoun "their" clearly limited the exempted service facilities to those possessed or owned by the utility itself and which the utility has located or relocated. The court concluded that since BBC's benches were not the property of a public utility, they were not exempted under the statute. Having found that the statutory exemption did not apply to BBC's benches, the court affirmed the district court's declaratory judgment requiring BBC to remove its benches from all City public rights -of -way pursuant to City Ordinance 0-2-09. Case Note: BBC had also presented an alternative argument that TANK had the right to allow placement of signs on its bus stops, and that such allowed signs were thus exempt from local zoning law under the statutory exemption. In support of this argument, BBC had tried to equate the fact that TANK had allowed third parties to advertise on its transit shelters with TANK allowing BBC to place advertising benches at its facilities. The 8 © 2013 Thomson Reuters