WHY KENTUCKY’S PROPERTY ACCESS LAWS ARE STRANGE – ANN MYRE
WHY KENTUCKY’S PROPERTY ACCESS LAWS ARE STRANGE
ANN MYRE, ATTORNEY
CONTRIBUTING AUTHOR KRISTI STREET
Many are familiar with condemnation, or the government’s power of eminent domain; sometimes, this power is used, not to take an entire piece of land, but to change how one accesses it, or even block off access altogether. When this occurs, some States offer compensation to landowners whose access has been altered or removed. In 1963, Kentucky decided that it would take a different approach.
The case Commonwealth of Kentucky, Department of Highways v. Sherrod firmly established Kentucky’s current, and some may say odd, laws regarding changes to (and losses of) access to property. When legal access to a property is lost, the land is cut off from roads by obstructions in the way. For example, if a neighbor’s property surrounds yours on all sides, preventing you from having a driveway directly from your land to the nearest road, your property is legally inaccessible. Access issues may also arise when, for instance, the State decides to turn Exit 4 from US 60 onto I-24 into a “double crossover diamond interchange,” putting a barrier in what used to be the center turn lane to get to the mall and other businesses on each side of US 60. Suddenly, many shops and restaurants in the area have to rethink how people get to them.
A change like this will typically have two substantial effects. First, the market value of the land where those shops and restaurants sit may decrease. Second, the shops and restaurants may experience a hit to their profits, as some people decide to go elsewhere and not deal with the road changes. In some States, the State government compensates the landowners for both the lost market value and the lost profits. Kentucky, on the other hand, only compensates for the complete lack of access, not a change in the access. If it takes a member of the public longer to access a business, or the route is more circuitous, the landowner receives no additional compensation.
Why? In 1963, Highway 68 near Lexington needed to be expanded from two lanes to four. Widening the highway, however, meant taking over parking spaces owned by a restaurant and related structures along the road. The property owners disagreed with the offer made by the state for the property, and the state filed suit to take the land needed for the new highway. When the case went to trial, there was a mass of confusion over who needed to be paid for what. The appellate court even said that the jury instructions “were so confusing, overlapping and contradictory that when the verdict was brought in neither the judge nor any of the parties could understand it, and the judge was required to question the jurors orally in order to determine what the verdict meant.”
The appellate court decided to reexamine the rules, getting rid of some and making new others. It was this effort that established Kentucky’s modern-day access laws—and they have survived to the modern day, not because the courts never questioned them again, but because the courts have upheld them over time. When a similar case was brought in 2003, the Kentucky Supreme Court affirmed the 1963 decision, asserting that the only issue that should be submitted to the jury is the question of whether, and by how much, the market value of the land changed.
The decision to maintain Kentucky’s access laws as they are has its supporters and its detractors. On one hand, private businesses might be getting less money from the Kentucky government than they would get in other States; on the other hand, estimating the costs of the change has been streamlined, shortening trials and creating thankful jurors across the State. And if nothing else, Kentucky gets to be just a little bit different from other places in America—which seems to suit us just fine.