FEDERAL-AID POLICY GUIDE
December 9, 1991, Transmittal 1
23 CFR 751
SUBCHAPTER H - RIGHT-OF-WAY AND ENVIRONMENT
PART 751 - JUNKYARD CONTROL AND ACQUISITION
751.9 Effective control.
751.11 Nonconforming junkyards.
751.13 Control measures.
751.15 Just compensation.
751.17 Federal participation.
751.19 Documentation for Federal participation.
751.21 Relocation assistance.
751.23 Concurrent junkyard control and right-of-way projects.
751.25 Programming and authorization.
Authority: 23 U.S.C. 136 and 315, 42 U.S.C. 4321-4347 and 4601-4655, 23 CFR 1.32, 49 CFR 1.48, unless otherwise noted.
Source: 40 FR 8551, Feb. 28, 1975, unless otherwise noted.
Sec. 751.1 Purpose.
Pursuant to 23 U.S.C. 136, this part prescribes Federal Highway Administration [FHWA] policies and procedures relating to the exercise of effective control by the States of junkyards in areas adjacent to the Interstate and Federal-aid primary systems. Nothing in this part shall be construed to prevent a State from establishing more stringent junkyard control requirements than provided herein.
[40 FR 12260, Mar. 18, 1975]
Sec. 751.3 Applicability.
The provisions of this part are applicable to all areas within 1,000 feet of the nearest edge of the right-of-way and visible from the main traveled way of all Federal-aid Primary and Inter-state Systems regardless of whether Federal funds participated in the construction thereof, including toll sections of such high-ways. This part does not apply to the Urban System.
Sec. 751.5 Policy.
In carrying out the purposes of this part:
(a) Emphasis should be placed on encouraging recycling of scrap and junk where practicable, in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.);
(b) Every effort should be made to screen nonconforming junkyards which are to continue as ongoing businesses; and
(c) Nonconforming junkyards should be relocated only as a last resort.
Sec. 751.7 Definitions.
For purposes of this part, the following definitions shall apply:
(a) Junkyard. (1) A Junkyard is an establishment or place of business which is maintained, operated or used for storing, keeping, buying, or selling junk, or for the maintenance or operation of an automobile graveyard. This definition includes scrap metal processors, auto-wrecking yards, salvage yards, scrap yards, autorecycling yards, used auto parts yards and temporary storage of automobile bodies and parts awaiting disposal as a normal part of a business operation when the business will continually have like materials located on the premises. The definition includes garbage dumps and sanitary landfills. The definition does not include litter, trash, and other debris scattered along or upon the highway, or temporary operations and outdoor storage of limited duration.
(2) An Automobile Graveyard is an establishment or place of business which is maintained, used, or operated forstoring, keeping, buying, or selling wrecked, scrapped,ruined, or dismantled motor vehicles or motor vehicle parts. Ten or more such vehicles will constitute an automobile graveyard.
(3) An Illegal Junkyard is one which was established or is maintained in violation of State law.
(4) A Nonconforming Junkyard is one which was lawfully established, but which does not comply with the provisions of State law or State regulations passed at a later date or which later fails to comply with State regulations due to changed conditions. Illegally established junkyards are not nonconforming junkyards.
(b) Junk. Old or scrap metal, rope, rags, batteries, paper, trash, rubber, debris, waste, or junked, dismantled, or wrecked automobiles, or parts thereof.
(c) Main traveled way. The traveled way of a highway on which through traffic is carried. In the case of a divided highway, the traveled way of each of the separated roadways for traffic in opposite directions is a main traveled way. It does not include such facilities as frontage roads, turning roadways, or parking areas.
(d) Industrial zones. Those districts established by zoning authorities as being most appropriate for industry or manufacturing. A zone which simply permits certain industrial activities as an incident to the primary land use designation is not considered to be an industrial zone. The provisions of Part 750, Subpart G of this chapter relative to Outdoor Advertising Control shall apply insofar as industrial zones are concerned.
(e) Unzoned industrial areas. An area where there is no zoning in effect and which is used primarily for industrial purposes as determined by the State and approved by the FHWA. An unzoned area cannot include areas which may have a rural zoning classification or land uses established by zoning variances or special exceptions.
[40 FR 8551, Feb. 28, 1975, as amended at 41 FR 9321, Mar. 4, 1976]
Sec. 751.9 Effective control.
(a) In order to provide effective control of junkyards located within 1,000 feet of Interstate and Federal-aid primary highways, the State must:
(1) Require such junkyards located outside of zoned and unzoned industrial areas to be screened or located so as not to be visible from the main traveled way, or be removed from sight.
(2) Require the screening or removal of nonconforming junkyards within a reasonable time, but no later than 5 years after the date the junkyard becomes nonconforming unless Federal funds are not available in adequate amounts to participate in the cost of such screening or removal as provided in 23 U.S.C. 136(j).
(3) Prohibit the establishment of new junkyards unless they comply with the requirements of paragraph (a)(1) of this section.
(4) Expeditiously require junkyards which are illegally established or maintained to conform to the requirements of paragraph (a)(1) of this section.
(b) Sanitary landfills as described herein need not be screened to satisfy requirements of Title 23, U.S.C., but landscaping should be required when the fill has been completed and operations have ceased, unless the landfill area is to be used for immediate development purposes. A sanitary landfill, for the purposes of this part, is a method of disposing of refuse on land without creating a nuisance or hazards to public health or safety by utilizing the principles of engineering to confine the refuse to the smallest practical area, to reduce it to the smallest practical volume, and to cover it with a layer of earth at the conclusion of each day's operation or at such more frequent intervals as may be necessary.
(c) The State shall have laws, rules, and procedures sufficient to provide effective control, to discover illegally established or maintained junkyards shortly after such occurrence, and to cause the compliance orremoval of same promptly in accordance with State legal procedures.
Sec. 751.11 Nonconforming junkyards.
Subject to the provisions of Sec. 751.9 above, the following requirements for the maintenance and continuance of a non-conforming junkyard apply:
(a) The junkyard must have been actually in existence at the time the State law or regulations became effective as distinguished from a contemplated use, except where a permit or similar specific State governmental action was granted for the establishment of a junkyard prior to the effective date of the State law or regulations, and the junkyard owner acted in good faith and expended sums in reliance thereon.
(b) There must be existing property rights in the junkyard or junk affected by the State law or regulation. Abandoned junk and junkyards, worthless junk, and the like are not similarly protected.
(c) If the location of a nonconforming junkyard is changed as a result of a right-of-way taking or for any other reason, it ceases to be a nonconforming junkyard, and shall be treated as a new junkyard at a new location.
(d) The nonconforming junkyard must have been lawful on the effective date of the State law or regulations and must continue to be lawfully maintained.
(e) The nonconforming junkyard may continue as long as it is not extended, enlarged, or changed in use. Once a junkyard has been made conforming, the placement of junk so that it may be seen above or beyond a screen, or otherwise becomes visible, shall be treated the same as the establishment of a new junkyard.
(f) The nonconforming junkyard may continue as long as it is not abandoned, destroyed, or voluntarily discontinued. Each State should develop criteria to define these terms.
Sec. 751.13 Control measures.
(a) Consistent with the goals of the National Environmental Policy Act of 1969 (42 U.S.C. 4321), recycling of junk and scrap is to be encouraged to the greatest extent practicable in the implementation of the junkyard control program. Recycling should be considered in conjunction with other control measures. To facilitate recycling, junk or scrap should be moved to an automobile wrecker, or a scrap processor, or put to some other useful purpose.
(b) Every effort shall be made to screen where the junkyard is to continue as an ongoing business. Screening may be accomplished by use of natural objects, landscaping plantings, fences, and other appropriate means, including relocating inventory on site to utilize an existing natural screen or a screenable portion of the site.
(c) Where screening is used, it must, upon completion of the screening project, effectively screen the junkyard from the main traveled way of the highway on a year-round basis, and be compatible with the surroundings. Each State shall establish criteria governing the location, design, construction, maintenance, and materials used in fencing or screening.
(d) A junkyard should be relocated only when other control measures are not feasible. Junkyards should be relocated to a site not visible from the highway or to anindustrial area, and should not be relocated to residential, commercial, or other areas where foreseeable environmental problems may develop.
(e) The State may develop and use other methods of operation to carry out the purposes of this directive, subject to prior FHWA approval.
Sec. 751.15 Just compensation.
(a) Just compensation shall be paid the owner for the relocation, removal, or disposal of junkyards lawfully established under State law, which are required to be removed, relocated, or disposed of pursuant to 23 U.S.C. 136.
(b) No rights to compensation accrue until a taking or removal has occurred. The conditions which establish a right to maintain and continue a nonconforming junkyard as provided in Sec. 751.11 must pertain at the time of the taking or removal in order to establish a right to just compensation.
Sec. 751.17 Federal participation.
(a) Federal funds may participate in 75 percent of the costs of control measures incurred in carrying out the provisions of this part including necessary studies for particular projects, and the employment of fee landscape architects and other qualified consultants.
(b) Where State control standards are more stringent than Federal control requirements along Interstate and primary highways, the FHWA may approve Federal participation in the costs of applying the State standards on a statewide basis. Where State standards require control of junkyards in zoned or unzoned industrial areas, Federal funds may participate only if such action will make an effective contribution to the character of the area as a whole and the cost is reasonable, but such projects should be deferred until the work in the areas where control is required has progressed well toward completion.
(c) Generally, only costs associated with the acquisitionof minimal real property interests, such as easements or temporary rights of entry, necessary to accomplish the purposes of this part are eligible for Federal participation. The State may request, on a case-by-case basis, participation in costs of other interests beyond the minimum necessary, including fee title.
(d) Federal funds may participate in costs to correct the inadequacies of screening in prior control projects where the inadequacy is due to higher screening standards established in this Part or due to changed conditions.
(e) Federal funds may participate in the costs of moving junk or scrap to a recycling place of business, or in the case of junk with little or no recycling potential, to a site for permanent disposal. In the latter case, reasonable land rehabilitation costs or fees connected with the use of such a disposal site are also eligible. In a case where the acquisition of a permanent disposal site by the State would be the most economical method of disposal, Federal funds may participate in the net cost (cost of acquisition less a credit after disposal) of a site obtained for this purpose.
(f) Federal funds may participate in control measure costs involved in any junkyard lawfully established or maintained under State law which is reclassified from conforming to nonconforming under revised State regulations and policy pursuant to this part.
(g) Federal funds may participate in the costs of acquisition of a dwelling in exceptional cases where such acquisition is found necessary and in the public interest, and where acquisition of the dwelling can be accomplished without resort to eminent domain.
(h) Federal funds shall not participate in:
(1) Costs associated with the control of illegal junkyards except for removal by State personnel on a force account basis or by contract, or in costs of controlling junkyards established after the effective date of the State's compliance law except where a conforming junkyard later becomes nonconforming due to changed conditions;
(2) Any costs associated with the acquisition of any dwelling or its related buildings if acquired through eminent domain in connection with the junkyard control program;
(3) Costs of acquisition of interests or rights as a measure for prohibition or control of the establishment of future junkyards;
(4) Costs of maintaining screening devices after they have been erected; or
(5) Costs of screening junk which has been or will be removed as a part of a junkyard control project.
Sec. 751.19 Documentation for Federal participation.
The following information concerning each eligible junkyard must be available in the States' files to be eligible for Federal participation in the costs thereof:
(a) Satisfactory evidence of ownership of the junk or junkyard or both.
(b) Value or cost documentation (including separate interests if applicable) including proof of obligation or payment of funds.
(c) Evidence that the necessary property interests have passed to the State and that the junk has been screened, relocated, removed or disposed of in accordance with the provisions of this part.
(d) If a dwelling has been acquired by condemnation, evidence that the costs involved are not included in the State's claim for participation.
Sec. 751.21 Relocation assistance.
Relocation assistance benefits pursuant to 49 CFR part 24 are available for:
(a) The actual reasonable moving expenses of the junk, actual direct loss of tangible personal property andactual reasonable expenses in searching for a replacement business or, if the eligibility requirements are met, a payment in lieu of such expenses.
(b) Relocation assistance in locating a replacement business.
(c) Moving costs of personal property from a dwelling and relocation assistance in locating a replacement dwelling, provided the acquisition of the real property used for the business causes a person to vacate a dwelling.
(d) Replacement housing payments if the acquisition of the dwelling is found by FHWA to be necessary for the federally assisted junkyard control project.
[40 FR 8551, Feb. 28, 1975, as amended at 50 FR 34094, Aug. 23, 1985; 54 FR 47076, Nov. 9, 1989]
Sec. 751.23 Concurrent junkyard control and right-of-way projects.
The State is encouraged to coordinate junkyard control and highway right-of-way projects. Expenses incurred in furtherance of concurrent projects shall be prorated between projects.
Sec. 751.25 Programming and authorization.
(a) Junkyard control projects shall be programmed in accordance with the provisions of Part 630, Subpart A of this chapter. Such projects may include one or more junkyards.
(b) Authorization to proceed with a junkyard control project may be given when the State submits a written request to FHWA which includes the following:
(1) The zoning and validation of the legal status of each junkyard on the project;
(2) The control measures proposed for each junkyard including, where applicable, information relative to permanent disposal sites to be acquired by the State;
(3) The real property interest to be acquired in order to implement the control measures;
(4) Plans or graphic displays indicating the location of the junkyard relative to the highway, the 1,000 foot control lines, property ownership boundaries, the general location of the junk or scrap material, and any buildings, structures, or improvement involved; and
(5) Where screening is to be utilized, the type of screening, and adequately detailed plans and cross sections, or other adequate graphic displays which illustrate the relationship of the motorist, the screen, and the material to be screened at critical points of view.
[40 FR 8551, Feb. 28, 1975, as amended at 41 FR 9321, Mar. 4, 1976]