Assessing Changes in the Junkyard Statute

(from Maine Townsman, December 2005)
By Curtis Webber, Esq., Linnell, Choate & Webber

In 2003, the Maine Legislature enacted many substantive changes in the Maine Automobile Graveyard and Junkyard Statute. Some further minor adjustments were made in this year's legislative session. These amendments represented a collaborative effort between the Maine Municipal Association and the Department of Environmental Protection. A group of municipal officials served as a sounding board for ideas and with respect to drafts of proposed amendments.

In the past, the primary focus of the statute had been to discourage the unsightly appearance of "junkyards" especially on major highways. [The term "junkyard" is used in this article as a short-hand expression intended to include automobile graveyards although, technically, the two types of establishments have different meanings.]

The 2003 amendments included provisions which were designed by the DEP and were also intended to prevent junkyards from contaminating ground water and water supplies. For example, 30-A M.R.S.A. § 3754-A(5)(B) prohibits the licensing of junkyards which are located less than 100 feet away from wetlands or sand and gravel aquifers. [Future statutory references in this article are to sections in Title 30-A].

Another major change introduced by the 2003 amendments is in the way an "automobile graveyard" is defined. Previously, an "automobile graveyard" was defined as a place where three or more "unserviceable" vehicles are stored. However, the term "unserviceable" proved to be difficult for both municipal officials and judges to work with. The amended definition describes an "automobile graveyard" as a place where three or more "unregistered or uninspected" motor vehicles are located. By substituting more objective terms, the Legislature hoped to take away the argument that a vehicle should not be considered as "unserviceable" if it could be restored to running condition by merely replacing the battery or one or two tires.

The expanded list of places not to be considered as junkyards in § 3752 reflects the work of industry lobbyists seeking to exempt their clients from the licensing process. Thus insurance salvage storage areas and auto repair garages are not to be treated as automobile graveyards provided the vehicles being stored or repaired do not remain on the premises for more than 180 days.

Section 3752(l)(A)(8) also excludes from the definition of automobile graveyards places used to store commercial vehicles which are "temporarily out of service." This subsection was designed to exclude unregistered construction equipment which might be parked by the side of the road during a lull in construction activity.

Another exclusion from the definition of an "automobile graveyard" promoted by lobbyists was for areas used by "automobile hobbyists" to store their vintage vehicles. However, this exception provided an opportunity for automobile graveyard owners to maintain their operations while masquerading as hobbyists. This loophole was closed this year by the addition of language which provides that storage areas for hobby vehicles are subject to the same screening requirements that apply to all automobile graveyards. (See Me. Pub. L. 2005, ch. 427, § 1).

The definition of a "junkyard" in § 3752(4) was also changed. Reflecting the changing times, the list of stored junked items which would constitute a junkyard has been expanded to include "electronic equipment" such as computers.

Beginning in 2004, junkyard permits expired annually on October 1 rather than on December 31. The date was advanced so that inspections could be made before snow fell.

Another change in procedure effective in September, 2003 allows the municipal officers to limit hearings on junkyard applications to cases involving new establishments. Notice of applications for permits, including renewal applications, paid for by the applicant, must nevertheless be sent to all abutting property owners. The assumption is that the neighbors will appear and oppose the relicensing of existing junkyards which are operating illegally. However, no procedure is provided in the statute to establish a forum in which such objections may he expressed.

Section 3754-A of the statute contains a substantially revised subsection entitled "Operating Standards." These standards replace the rules previously issued by the Department of Transportation defining "unserviceable vehicles" and imposing minimum standards for junkyard fencing. Section 3758-A(6) states that a junkyard permit may be revoked if any of the operating standards are being violated.

The "operating standards" also include a requirement in § 3754-A(5)(D) that a junkyard must be a "viable business entity" (purposely left vague so that communities could adopt their own definitions by local ordinance) at the time that a license is applied for. This provision is intended to insure that junkyard licenses are issued only to persons who are actually in the business of selling used parts or materia1s, and not to persons seeking licenses for their private dumps. The language limiting junkyard licenses to truly commercial operations was reinforced this year by the elimination of the words "or personal use" in § 3754-A(5)(D). (See Me. Pub. L. 2005, ch. 424, § 4).

One perhaps unintended change in the junkyard statute made in 2003 was the elimination of the requirement that locally adopted rules must be "more stringent" than those imposed at the state level. (See 30-A M.R.S.A. § 3757(4). As previously written, the statute prohibited municipalities from undercutting state law by setting lower standards in local ordinances. Thus, for example, the attempt by one community to exempt farmers from the effects of the junkyard statute was clearly ineffective prior to 2003. However, the omission of such language in the current version of the statute puts this outcome in doubt.

In order to improve enforcement of the junkyard laws, § 3754-A(9) of the 2003 amendments authorized municipal officials to enter the "outside areas" of junkyards to inspect "equipment and activities." However, the legislative draftsmen may have drawn the line as to where entry maybe made in the wrong place. In the case of See v. City of Seattle 387 U.S. 541 (1967) the U.S. Supreme Court held that municipal inspectors must obtain administrative search warrants in order to inspect business premises which are not "open to the public." It seems likely that the "outside areas" of junkyards will in many cases not be open to uninvited members of the public. An inspection without an administrative search warrant of that portion of a junkyard storage area which is closed to the public even though located "outside" would constitute a trespass.

Section 3756 of the 2003 amendments made an overdue correction in the statute by eliminating the $250 permit fee for junkyards located closer than 100 feet to the highway. Under the revised statute, all junkyards are assessed a $50 permit fee regardless of distance from the road unless a greater amount is established by local ordinance.

The 2003 amendments added an important new subsection dealing with the enforcement of junkyard violations. After a municipality has obtained a court order that a junkyard is operating in violation of the statute or local ordinance, it can enter the premises and carry out the terms of the court order. However, this may be easier said than done unless the court order spells out in detail what is considered junk and what is not. The risk is that the municipality or its subcontracted hauler will remove and destroy material assumed to be junk which the junkyard owner later proves to have value. This suggests that in any such case the municipality should inventory and perhaps even photograph the items being removed.

The 2003 amendments also included wording (modeled after statutory language providing for abatement of malfunctioning septic systems) making it easier for municipalities to recoup the cost of their abatement actions from junkyard owners. In addition to filing a collection action in court or placing a lien on the land where the junkyard is located, a municipality can now assess a special tax against the property in the amount of its expenses which can be added to the junkyard owner's next annual real estate tax assessment. (See 30-A M.R.S.A. § 3758-A(4)(C). if the tax is not paid, however, the municipal officers may have to do some soul-searching as to whether they want to become the owners of the premises and assume the clean-up responsibilities including any hazardous waste which may be present. Geoff Herman of MMA reports that the junkyard revisions of 2003 appear to be working well. The fact that only minor adjustments in the wording of the statute were considered to be necessary in this year's legislative session would seem to confirm that conclusion.