Judges: Carla J. Stovall, Attorney General of Kansas
Filed Date: 2/9/1998
Status: Precedential
Modified Date: 7/5/2016
John B. Klenda McPherson County Counselor Suite 201, The Grand Building 100 W. Kansas Avenue P.O. Box 1103 McPherson, Kansas 67460
Dear Mr. Klenda:
On behalf of the McPherson County Commissioners you pose several questions about the interpretation of K.S.A. 1996 Supp.
Your first question is in two parts: What is meant by "a fence of the class requested by such property owner" found at subsection (10) (D) of the statute and whether the language imposes a limitation on the property owner's request. K.S.A. 1996 Supp.
"The responsible party, at all times after transfer of the deed to the responsible party, shall:
"(10) (A) maintain any existing fencing between the trail and adjacent property; (B) maintain any future fencing installed between the trail and adjacent property; (C) install between the trail and adjacent property fencing corresponding in class to that maintained on the remaining sides of such adjacent property; and (D) on request of an adjacent property owner, pay one-half the cost of installing fencing between the trail and such property owner's adjacent property with a fence of the class requested by such property owner, if not all remaining sides of such property are fenced. . . ."
The interpretation of a statute is a matter of law, and it is the function of the Court to interpret the statute to give it the effect intended by the Legislature. Todd v. Kelly,
At issue in the phrase to be interpreted is the word "class" which is defined by Webster's Encyclopedic Unabridged Dictionary of the English Language (1983) as "a number of persons or things regarded as forming a group by reason of common attributes, characteristics, qualities or traits; kind; sort." The language "a fence of the class requested by such property owner" clearly presumes that there are different kinds or classes of fences which are appropriate for the obvious purpose of fencing adjacent land from a recreational trail. The identical phrase "class of fence" appears in K.S.A.
The limitation must be considered in light of the purpose for erecting the fence which is to protect the adjacent landowners' legitimate concerns, such as trespass by those using the recreational trail. Common sense dictates that the statutory provision in question making both parties (the responsible party and the landowner) equally financially liable for the fence be applied with regard to what is reasonably necessary in material and workmanship to make it appropriate to the purpose for which the fence was designed. See Griffith v. Carrothers,
Your second question is also in two parts: what effect, if any, does a conditional request for fencing have on the bond or escrow amount that is to be agreed upon between the responsible party and the county, and should conditional requests for fencing be considered firm commitments.
You indicate that you have received landowners' requests for fencing which are conditioned upon their prior authorization before construction. K.S.A.
A perusal of the relevant statutes, K.S.A.
Your third question is who is responsible, the property owner or the responsible party, for the physical installation of the fence requested under K.S.A.
"[O]n request of an adjacent property owner, pay one-half the cost of installing fencing between the trail and such property owner's adjacent property with a fence of the class requested by such property owner, if not all remaining sides of such property are fenced; . . ."
The provision requires that the responsible party pay one-half the cost "on request of the adjacent property owner." Clearly when the request for the funding is made to the responsible party by the landowner, the landowner must have a contract for the amount of the costs involved. The statute does not present an ambiguity when it requires that both the landowner and the responsible party be equally liable on the contract for the fencing. For this reason, it is our opinion that as a practical matter the landowner cannot make a request as required by the statute without first initiating the physical installation of the fence by contracting with a provider. See generally Renner v. Monsanto ChemicalCo.,
Your fourth question is what procedure is to be followed in the event the responsible party and county are unable to reach an agreement as to the amount of the bond. The amount of the bond requirements are set in K.S.A.
"The bond or escrow account shall be conditioned on the responsible party's performance, and shall be in amount agreed upon between the responsible party and the county commission as sufficient to fully cover the annual cost of. . . ."
The amount of the bond is dictated by the costs of the following: (1) weed control along the trail, as required by subsection (a) (1); (2) litter control along the trail, as required by subsection (a) (4); (3) maintenance of the trail in a condition that does not create a fire hazard, as required by subsection (a) (10); (4) installation and maintenance of fencing between the trail and adjacent property within the county, as required by subsection (a) (10); and (5) installation and maintenance of signs along the trail, as required by subsections (a) (3), (a) (4) and (a) (11) (C). The statute does not address any procedure to be followed in the event that the responsible party and the county are unable to reach an agreement. The statute clearly contemplates that these specific items numbered one through five be considered in arriving at the amount of the bond. Without further information about the parties' disagreement, we are unable to reach the question about remedial procedures.
Your fifth question is whether the County is required to institute proceedings for recourse against the "responsible party" for failure to carry out the duties of the responsible party as listed in K.S.A.
"A city or county may institute procedures for recourse against the responsible party pursuant to
16 U.S.C. § 1247 (1983) and 49 C.F.R. § 1152. 29 (1986) upon the failure of the responsible party to comply with the provisions of this act." (Emphasis added).
It is our opinion that the decision to institute procedures for recourse against the responsible party is a discretionary matter in that the statutory language is "may" rather than "shall" and the context does not indicate otherwise. See State ex rel. Secretary of Social andRehabilitation Services v. Jackson,
Your final question is what action can be taken by the County when it is determined the "responsible party" has failed to carry out its duties; in other words, what "procedures for recourse against the responsible party" should be undertaken pursuant to
Although K.S.A. 1996 Supp. purports to authorize procedures for recourse to be found in federal law, the provisions of
"After carefully considering the comments, we conclude that the reporting requirements, maintenance standards, and other rule amendments suggested by NARPO (National Association of Reversionary Property Owners) and other parties are inconsistent with our limited role, could interfere with legitimate State and local law enforcement, are unnecessary and would be unduly burdensome. The parties comments and the experience we have gained from administering section 1247 (d) [
16 U.S.C. § 1247 ] convince us that our current procedures are adequate, given our limited role and responsibilities under the Trails Act."Those arguing that we should create new conditions on trail use to protect property owners ignore the fact that trail use must comply with State and local land use plans, zoning ordinances, and public health and safety legislation. See Iowa Southern, supra [Iowa Southern Railroad Company — Exemption 5 I.C.C. 2d [496, 505] (served May 18, 1989)]. This local regulation can address concerns about such issues as vandalism, noise, and maintenance. Indeed, the State and local agencies in the area are more attuned to the specific interests and needs of their communities and can adapt the requirements they impose to the special features and needs of particular trails. See the Trail Operators comments pointing out that : (1) many States already require trail operators to perform certain maintenance; (2) maintenance is inherently a local question. . . ."
There are, however, limitations to local regulation where local regulation becomes preempted by federal law. As explained in a current decision, preemption does not deprive the states of the power to regulate where the activity regulated is a peripheral concern of the federal law. In Cities of Auburn and Kent, WA — Petition for Declaratory Order —Burlington Northern Railroad Company — Stampede Pass Line, STB Finance Docket No. 33200, Surface Transportation Board, Served July 2, 1997 at slip op., 1997 STB Lexis 143 at 15 the limitation to this power is explained:
"A key element in the preemption doctrine is the notion that only `unreasonable' burdens, ie., those that `conflict with' Federal regulation, `interfere with' Federal authority, or `unreasonably burden' interstate commerce, are superseded. The courts generally presume that Congress does not lightly preempt state law. Medtronic Inc. v. Lora Lohr,
116 S. Ct. 2240 ,2250 (1996). Also, preemption does not deprive the state of the `power to regulate where the activity regulated [is] a merely peripheral concern' of Federal law. San Diego Building Trades Council v. Garmon,359 U.S. 236 ,243 (1959). In short, where the state or local law can be applied without interfering with the Federal law, the courts have done so. See Hayfield Northern R.R. v. Chicago N.W. Transport. Co.,467 U.S. 622 (1984) (state proceeding to condemn railroad property did not interfere with the Instate Commerce Act because the state process followed the abandonment of the line pursuant to the ICC's process and the line was no longer part of the national transportation system). Local law, however, is preempted when the challenged state statute `stands as an obstacle to the accomplishment and execution to the full purposes and objectives of Congress.' Perez v. Campbell,402 U.S. 637 ,649 (1971), quoting Hines v. Davidowitz,312 U.S. 52 ,67 (1941). Local law also is preempted where there is a compelling need for uniformity. Hammond,726 F.2d at 491 . . . ."
It is therefore our opinion that K.S.A. 1996 Supp.
In conclusion, it is our opinion that K.S.A. 1996 Supp.
Very truly yours,
CARLA J. STOVALL Attorney General of Kansas
Guen Easley Assistant Attorney General
CJS:JLM:GE:jm
United States v. Earle T. Cook , 432 F.2d 1093 ( 1970 )
Renner v. Monsanto Chemical Co. , 187 Kan. 158 ( 1960 )
Todd v. Kelly , 251 Kan. 512 ( 1992 )
Underwood v. Allmon , 215 Kan. 201 ( 1974 )
Martindale v. Tenny , 250 Kan. 621 ( 1992 )
Murphy v. Curtis , 184 Kan. 291 ( 1959 )
Hayfield Northern Railroad v. Chicago & North Western ... , 104 S. Ct. 2610 ( 1984 )
State Ex Rel. Stephan v. Kansas Racing Commission , 246 Kan. 708 ( 1990 )
Hines v. Davidowitz , 61 S. Ct. 399 ( 1941 )
San Diego Building Trades Council v. Garmon , 79 S. Ct. 773 ( 1959 )
Perez. v. Campbell , 91 S. Ct. 1704 ( 1971 )