dissenting.
I dissent. The uncontroverted evidence establishes that Whiteco’s billboard was located more than 660 feet from the Pen-nyrile Parkway and outside an urban area. The Cabinet relies upon both express and implied delegations of power under the Billboard Act to promulgate the questionable regulations affecting Whiteco’s billboard.
Under the apparent authority of KRS 177.860 and KRS 177.890, the Cabinet promulgated 603 KAR 3:080 Section 1(20) and Section 3(3). In effect, these regulations created an additional exception to KRS *29177.841(2),1 to wit: a “nonconforming use.” Pursuant thereto, a billboard clearly prohibited under subsection 2, such as Whi-teco’s, would be exempted if it existed prior to enactment of the Billboard Act.2 Under the specific auspices of KRS 177.890, the Cabinet grafted the regulatory exception of nonconforming use upon subsection 2. I view such regulatory exception as directly repugnant to the plain language of KRS 177.841 and as clearly beyond the scope of power delegated to the Cabinet by the Billboard Act. My ratiocination centers upon what I deem proper construction of KRS 177.841, which states as follows:
Billboard advertising prohibited — Exceptions.— (1) Except as otherwise
provided in KRS 177.830 to 177.890, the erection or maintenance of any advertising device upon or within six hundred and sixty (660) feet of the right of way of any interstate highway or federal aid primary highway is prohibited.
(2) The erection or maintenance of any advertising device located outside of an urban area and beyond six hundred and sixty (660) feet of the right-of-way which is legible and/or identifiable from the main traveled way of any interstate highway or federal aid primary highway is prohibited with the exception of:
(a) Directional and official signs and notices;
(b) Signs advertising the sale or lease of property upon which they are located; or
(c) Signs advertising activities conducted on the property on which they are located. (Emphasis added.)
Subsection 1 of the above statute deals with legislative prohibition upon billboards located within 660 feet of a highway; whereas, subsection 2 deals with such prohibition upon billboards located beyond 660 feet and in a rural area. Subsection 1, however, contains the following caveat that is conspicuously absent from subsection 2: “Except as otherwise provided in KRS 177.830 to 177.890.... ” As such circumscribing language was specifically included in subsection 1 but excluded in subsection 2, I can only conclude that the General Assembly did not intend subsection 2’s general prohibition upon billboards beyond 660 feet to be excepted by the provisions of KRS 177.830 — .890. Indeed, subsection 2 contains its own narrow exceptions in (a) — (c). In short, I think the Cabinet may utilize provisions of KRS 177.830— .890 as authority to promulgate exceptions to subsection 1 but may not rely upon such provisions as authority to promulgate exceptions to subsection 2.
Through KRS 177.841, I believe the General Assembly unmistakably has drawn a clear demarcation between billboards located within 660 feet and those billboards located beyond. The general prohibition against the former billboards is tempered by a plethora of exceptions as authorized by KRS 177.830 — .890; conversely, the general prohibition against the latter billboards is only excepted in three instances as found in KRS 177.841(2)(a) — (c). The more stringent prohibition upon billboards beyond 660 feet and outside of an urban area is consistent with one of the General Assembly’s proclaimed purposes of the Billboard Act, that is “[t]o preserve ... the natural scenic beauty or the aesthetic features of the ... interstate highways, limited-access highways, federal-aid primary highways, turnpikes, and adjacent areas[.]” KRS 177.850(4).
In sum, I am of the opinion that subsection 2’s prohibition upon billboards located beyond 660 feet is absolute with only the exceptions of (a) — (c) and that the Cabinet may not rely upon the provisions of KRS 177.830 — .890 as authority to promulgate exceptions to subsection 2. The Cabinet, therefore, cannot properly utilize KRS *30177.890 as authority to promulgate the “nonconforming use” exception to subsection 2’s general prohibition upon billboards beyond 660 feet. As Whiteco’s billboard clearly violated subsection 2, the Cabinet may only condemn same and pay just compensation therefor. Ky. Const. § 13; KRS 177.867. I would remand this case for appropriate condemnation proceedings consistent with this opinion.
. Hereinafter, KRS 177.841(2) will sometimes be referred to as subsection 2, and, likewise, KRS 177.841(1) will be referred to as subsection 1.
. In this manner, the Cabinet sought not to condemn and pay for billboards beyond 660 feet but to allow natural attrition of same.