Kentucky Airport Zoning Commission v. Kentucky Power Co.

651 S.W.2d 121, 1983 Ky. App. LEXIS 289
CourtCourt of Appeals of Kentucky
DecidedMarch 25, 1983
StatusPublished
Cited by5 cases

This text of 651 S.W.2d 121 (Kentucky Airport Zoning Commission v. Kentucky Power Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kentucky Airport Zoning Commission v. Kentucky Power Co., 651 S.W.2d 121, 1983 Ky. App. LEXIS 289 (Ky. Ct. App. 1983).

Opinion

HOWERTON, Judge.

The Kentucky Airport Zoning Commission appeals from a judgment of the Franklin Circuit Court invalidating four of the Commission’s orders which had required the Kentucky Power Company to mark and relocate electric power lines near airports at Pikeville and Hazard, Kentucky. The trial court declared KRS 183.861 to 183.873 to be unconstitutional. It further concluded that the Commission had exercised its power arbitrarily and unreasonably in adopting its regulations, even if the legislative delegation was constitutional. The court further concluded that the Commission’s orders were not supported by any findings of fact which would permit judicial review, that the Commission denied the Power Company due process of law in the manner in which it conducted its hearings, and that the requirements imposed upon the Power Company constituted a taking of property without compensation.

The Commission makes an issue of each of the foregoing conclusions, and it argues that each conclusion was erroneous. We do not find the statutes unconstitutional, but we generally agree with the trial court as to its remaining four conclusions. We will consider the manner in which the Commission has exercised its delegated powers and the issue of whether the Commission’s orders were an unconstitutional attempt to take property without just compensation. Since we are generally affirming the judgment of the trial court, we see no need to discuss the issues of judicial review or due process.

Kentucky Power Company has owned an easement and maintained transmission lines in the locations now challenged since long before the airports were developed or the Zoning Commission came into existence. The line known as Pikeville South was erected in 1944. It is located 3,215 feet south of the Pikeville Airport runway. The line was temporarily relocated in 1970 to facilitate the widening of U.S. Highways 23 and 460. Approximately 300 feet of a mountain top was removed on the east side of the Big Sandy River over which the transmission lines crossed. The approaches to the airport follow the river. The work was completed in 1973, and a steel tower was erected on a bench cut into the mountain. The power line was put back in its previous location but attached to the tower. The net effect of the reconstruction was to lower the line where it crossed the river, although the top of the tower protrudes into the zoned air space.

The situation with the line known as Pikeville North is somewhat similar. The line was constructed in 1922. It was rebuilt in 1940; and in 1967, it was redesigned to carry more voltage. A static line was installed at that time, and it is located approximately 12 feet above the energized wires. Zoning jurisdiction was asserted over this line in May 1969.

The line was lowered approximately 30 feet in 1972 as a result of the highway construction. It is now situated roughly 180 feet above the level of the airport runway. The line is located approximately 2.5 miles north of the runway.

The Commission’s regulations in 1972 required a permit for structural alterations, but the definition of the phrase “alter a structure” included only an increase in height. The definition was changed in 1979 to include decreases in height.

The transmission line in the Hazard area was placed in service in 1941, eight years before the development of the airport. In 1963, the construction of Ky. Highway 15 required the line to be elevated 60 feet. The line was reconstructed in 1967 and was raised an additional ‘33 feet. In 1976, the construction of the Hazard Bypass required that the line be elevated an additional 13 feet. The line is located on the opposite side of a mountain from the airport. The line would create no obstruction to air navigation, except that the State cut through [123]*123the mountain in 1976 and exposed the line to air traffic electing to fly through this cut. The cut for the highway is not a legitimate approach to the airport on air navigation maps and charts.

The orders of the Commission directed the Power Company to mark its transmission lines with large orange balls. It also directed the Company to paint its tower at Pikeville South and to install a strobe light on the top of the tower. The orders also directed the Company to relocate the Hazard and the Pikeville South lines, but the Commission temporarily suspended these requirements for further consideration. The estimated cost for marking each line is $5,000.00, and the estimate for relocating the line at Pikeville South ranged from $1,600,000.00 to $3,500,000.00, depending upon the route selected.

The Kentucky Airport Zoning Commission was established by KRS 183.861. The act empowers the Commission “to issue such orders, rules and regulations pertaining to the use of land within and around all publicly owned airports within the state as will promote the public interest and protect and encourage the proper use of such airports and their facilities.” The legislature found and announced in KRS 183.866 that “an airport hazard endangers the lives and property of users of the airport and of occupants of land in the vicinity.” It also found that “such hazards are not in the interest of the public health, public safety or general welfare.” It further found that “any obstructions to the use of navigable air space destroy and impair the safe use of such air space thereby endangering aircraft and are not in the interest of public health, public safety or general welfare.”

KRS 183.867 and 183.868 pertain to the establishment of zoning jurisdiction and regulations. KRS 183.867(1) reads in part as follows:

The commission shall require that every public airport in the state file with it, from time to time, as required, maps showing the airport and area surrounding such airport used for approach or landing purposes. The commission shall thereafter designate on such maps, by reference to the regulations or standards promulgated by the federal aviation administration concerning the area required for the safe maneuvering approach and landing of aircraft, the area over which jurisdiction will be assumed for zoning purposes ....

Subsection (2) reads, “The commission may adopt such regulations pertaining to the zoning of areas over which jurisdiction is assumed as will provide for the proper and safe use of such area and airport.”

KRS 183.868 specifies in part as follows: In addition to considering the regulations or standards promulgated by the federal aviation administration in zoning the use of land and structures in areas over which jurisdiction is assumed, the commission shall consider among other things the safety of airport users and surface persons and property, the character of flying operations conducted at the airport, the nature of the terrain, the height of existing structures and trees above the level of the airport,....

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Bluebook (online)
651 S.W.2d 121, 1983 Ky. App. LEXIS 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kentucky-airport-zoning-commission-v-kentucky-power-co-kyctapp-1983.