KRS 350.280: Easements of necessity to abate certain dangerous violations and for

appraisal purposes when access to property denied -- When effective --

Appraisal and calculation of damages -- Independent appraisal by property

owner or legal occupant -- Payment of damages -- Payment of entry fee for

appraisal purposes.

(1) (a) As used in this section, "he or she" includes "person" as defined in KRS

350.010.

(b) If a permittee or operator has been issued a notice or order directing

abatement of a violation on the basis of an imminent danger to health and

safety of the public or significant imminent environmental harm, and the

notice or order requires access to property for which the permittee or operator

does not have the legal right of entry necessary in order to abate that violation,

and the owner or legal occupant of that property has refused access, an

easement of necessity is recognized on behalf of the permittee or operator for

the limited purpose of abating that violation. The easement of necessity

becomes effective, and the permittee or operator is authorized to enter the

property to undertake immediate action to abate the violation if he or she

concurrently:

1. Provides to the property owner or legal occupant a copy of the cabinet's

order and a plan of action reasonably calculated to result in abatement of

the violation, repair of the damage, and restoration of the property, and

provides proof of liability insurance and workers' compensation

insurance covering any accidents or injuries occurring on the property

during the remedial work;

2. Provides to the property owner or legal occupant and cabinet an

affidavit that he or she has been denied access to the property; and

3. Provides to the property owner or legal occupant a statement that he or

she, the permittee or operator, will diligently pursue abatement of the

violation, and will obtain an appraisal completed by a real property

appraiser certified under KRS Chapter 324A of the damages to the

property, including loss of use, that have resulted from the violation, that

the appraisal will be completed and provided to the property owner or

legal occupant within three (3) days of abatement of the violation by the

operator or permittee, and that he or she will pay the property owner or

legal occupant the am ount of the damages in the permittee or operator's

appraisal at that time.

(c) Following the effective date of the easement of necessity, the following

procedure shall be followed with respect to the appraisal of the damages:

1. The permittee or operator s hall have a certified appraiser on the site and

have his or her appraisal completed and submitted to the property owner

or legal occupant within three (3) days of abatement of the violation by

the operator or permittee;

2. The property owner or legal occupant shall accept or reject this appraisal

in writing within seven (7) days of receipt of the completed appraisal;

3. If the property owner or legal occupant rejects this appraisal, he or she

may hire a real property appraiser certified under KRS Chapter 324A to

appraise the damages, including loss of use, that have resulted from the

violation, and this such appraisal shall be completed and provided to the

permittee or operator within thirty (30) days of receipt of the permittee's

or operator's completed appraisal. Upon receipt of the invoice the

permittee or operator shall pay for the property owner or legal

occupant's appraisal up to the amount he or she paid for his or her own

appraisal; and

4. If the property owner or legal occupant accepts the permittee's or

operator's appraisal, the permittee or operator shall promptly pay the

property owner or legal occupant the amou nt of the damages reflected

therein.

(d) If the property owner or legal occupant has an appraisal done, and if, based on

his or her appraisal and the permittee's or operator's appraisal, an agreement is

not reached on the appraised damages, the permittee o r operator shall pay the

property owner or legal occupant the amount of the permittee's or operator's

appraisal damages, and if the property owner or legal occupant's appraisal

damages are for more than the permittee's or operator's, the permittee or

operator shall pay the difference to the circuit clerk, in the county in which the

majority of the property lies, to be placed in an interest -bearing account in a

bank until final resolution of the matter by agreement or court or jury

judgment. If the property owner or legal occupant is granted award of some or

all of the difference, he or she shall also receive the interest on that portion of

the difference.

(e) If the property owner or legal occupant does not accept or reject the

permittee's or operator's appr aisal and offer of funds for damages within the

time specified in paragraph (c)2. of this subsection, the appraisal and offer

shall be deemed accepted.

(f) The appraiser shall calculate the damages to the property, including loss of

use, that have resulted from the violation which the owner or the legal

occupant shall be entitled to under this subsection as the difference between

the fair market value of the property before the violation and after the

abatement of the violation, plus the reasonable rental v alue of the property

during the period of time between the effective date of the easement of

necessity and the date of the abatement of the violation.

(2) If a permittee or operator has been issued a notice or order directing abatement of a

violation other than one described in subsection (1) of this section, and the notice or

order requires access to property for which the permittee or operator does not have

the legal right of entry necessary in order to abate that violation, and the owner or

legal occupan t of that property has refused access, an easement of necessity is

recognized on behalf of the permittee or operator, for the limited purpose of

allowing a real property appraiser certified under KRS Chapter 324A, chosen by the

permittee or operator, to en ter upon the property to which the owner or legal

occupant has refused access in order for the appraiser to appraise the damages,

including loss of use, that likely will result from the violation.

(3) (a) The easement for the limited purpose of allowing th e appraisal under

subsection (2) of this section shall be recognized and take effect when the

operator or permittee:

1. Provides to the property owner or legal occupant a copy of the cabinet's

order;

2. Provides to the property owner or legal occupant and cabinet a plan of

remedial measures to abate the violation;

3. Provides to the property owner or legal occupant and cabinet an

affidavit that he or she has been denied access to the property; and

4. Provides to the property owner or legal occupant a statem ent that he or

she, the permittee or operator, will within seven (7) days of entry of the

appraiser obtain an appraisal of the damages to the property including

loss of use, that likely will result from the violation, and that upon

completion of the apprai sal he or she will provide the appraisal to the

property owner or legal occupant and pay the property owner or legal

occupant an entry fee. The entry fee shall be calculated as one -half (1/2)

of the amount of the appraisal or the sum of five hundred dollar s ($500),

whichever is greater, for the privilege to enter the property and conduct

the appraisal.

(b) Upon payment of the entry fee by the permittee or operator, an easement of

necessity shall be recognized on behalf of the permittee or operator for the

limited purposes of abating the violation and the operator or permittee shall be

authorized to enter the property to undertake immediate action to abate the

violation, provided that the landowner has been provided a plan of action

reasonably calculated to r esult in abatement of the violation, repair of the

damage, and restoration of the property, and the permittee or operator

provides proof of liability insurance and workers' compensation insurance

covering any accidents or injuries occurring on the property during the

remedial work.

(c) Following the effective date of the easement of necessity to abate the

violation, the procedures set forth in subsection (1)(c) to (f) of this section

shall apply. The entry fee shall be deducted from any subsequent payment

deemed due the property owner or legal occupant as a result of the post -

abatement appraisal or appraisals. If the entry fee exceeds the amount of all

appraisals, the property owner or legal occupant shall be entitled to retain the

entry fee in its entirety.

(4) Nothing contained in this section shall affect any person's right to bring a civil

action for damages, including punitive and compensatory damages, or other

appropriate relief.