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CROSS REFERENCES. --Election and term of members, Ga. Const. 1983, Art. III, Sec. II, Para. V. Advertisement of notice to introduce local legislation, Ga. Const., 1983, Art. III, Sec. V, Para. IX. Exercise of powers, Ga. Const. 1983, Art. III, Sec. VI. Special sessions of the General Assembly, Ga. Const. 1983, Art. V, Sec. II, Para. VII. Rules of statutory construction, § 1-1-1 et seq. and § 1-3-1 et seq. Exemption from jury duty for members of General Assembly, § 15-12-2. Date of election for offices, § 21-2-9. Vacancies and special elections for members of General Assembly, § 21-2-544. Reporting of contributions made to members of General Assembly during legislative session, § 21-5-35. Legislators' exemption, § 24-13-29. Ongoing review of effectiveness of and continued need for regulatory agencies, § 43-2-1 et seq.


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Appeal from the Iowa District Court for Jasper County, Larry J. Eisenhauer, Judge.
Estate and decedents widow appeal from district courts adverse ruling in their suit seeking declaratory judgment that decedents ex-wife was not entitled to decedents retirement account. AFFIRMED.
Lee M. Walker of Walker, Knopf & Billingsley, Newton, for appellants.
Dennis F. Chalupa and T.J. Rekemeyer of Brierly Law Office, Newton, for appellee.
Considered by McGiverin, C.J., and Lavorato, Snell, Ternus, and Cady, JJ.
This case involves a dispute between a decedents widow and ex-wife over the proceeds of the decedents retirement account. The trial court found no basis to void the decedents designation of his former spouse as the beneficiary of this account, nor do we. Therefore, we affirm.
I. The facts of this case are undisputed. The decedent, Daniel Schultz, and the appellee, Paula Schultz, were married in 1970. In 1983, Daniel listed Paula as the beneficiary on his individual retirement account (IRA). Subsequently, in 1988, the couples marriage was dissolved. In the dissolution decree, Daniel was awarded the IRA as part of the courts division of the parties property.
In 1990, Daniel married the appellant, Beverley Schultz. Five years later, Daniel died. Daniel had not changed the beneficiary designation on his IRA. Therefore, the proceeds of this account were paid to Paula as Daniels designated beneficiary.
Beverley was named the executor of Daniels estate. She filed this equity action individually and on behalf of the estate seeking a declaratory judgment that the plaintiffs were entitled to the proceeds of the retirement account because the dissolution decree had extinguished Paulas rights as a beneficiary. Beverley sought to recover the proceeds of the IRA from Paula on the theory that Paula had been unjustly enriched by receiving benefits to which she was not legally entitled.
After a bench trial, the district court held that the dissolution decree did not address Paulas status as a beneficiary of Daniels IRA, and therefore, did not terminate her expectancy interest in the account. Finding no basis in the evidence to void Daniels beneficiary designation, the court denied the plaintiffs request for damages and declaratory relief.
Beverley and the estate appealed. We review the ruling in this equity action de novo. See Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa 1996); Iowa R. App. P. 4.
II. The decedent had a written contract with the administrator of his retirement account that, in the event of his death, his account would be paid to Paula S. Schultz. Cf. In re Estate of Sheimo, 261 Iowa 775, 783, 156 N.W.2d 681, 685 (1968) (holding that designation of beneficiary made by owner of bank certificates of deposit constituted a contract with the bank); Prudential Ins. Co. v. Green, 231 Iowa 1371, 1374, 2 N.W.2d 765, 766-67 (1942) (Life insurance, of course, is ordinarily a contract whereby, for a specified premium to be paid in various ways, the insurance company agrees to pay a stated sum to designated beneficiaries in the event of death of the insured while the contract is in force.). The plaintiffs seek to alter this contractual obligation on the theory that the dissolution decree terminated any expectancy interest Paula had in Daniels IRA.
We note initially that Iowa follows the majority rule that divorce or dissolution per se does not void the designation of a named spouse on a life insurance policy. Sorensen v. Nelson, 342 N.W.2d 477, 479 (Iowa 1984). Beverley asserts that the rule should be different for retirement accounts because a retirement account has value during a decedents lifetime whereas a life insurance policy generally has little value until the decedents death. We do not think this distinction has any relevance, however, to the validity of a beneficiary designation, whether made with respect to a retirement account or an insurance policy. Therefore, we join other jurisdictions that apply the same rules to situations involving either the payment of life insurance proceeds or the payment of a retirement account to a decedents former spouse. See Johnson v. Johnson, 746 P.2d 1061, 1062 (Idaho Ct. App. 1987) (holding characterization of IRA is not important; issue is whether ex-spouse waived any rights as a beneficiary during the divorce proceedings); Graves v. Summit Bank, 541 N.E.2d 974, 977 (Ind. Ct. App. 1989) (stating that mere fact life insurance policies have no cash value as compared to retirement accounts does not justify applying different rules to these two assets); see also Estate of Bowden v. Aldridge, 595 A.2d 396, 397 (D.C. 1991) (applying life insurance case law to retirement account dispute); Estate of Anello v. McQueen, 953 P.2d 1143, 1145 (Utah 1998) (same).
Accordingly, we start with a brief review of the Iowa cases wherein we have determined the effect of a dissolution on a former spouses right to recover the proceeds of the decedents life insurance policy as the designated beneficiary. In Lynch v. Bogenrief, 237 N.W.2d 793 (Iowa 1976), we held that a spouse named as a beneficiary maintains that status even though subsequently divorced from the insured. 237 N.W.2d at 797. The divorce decree in Lynch made no mention of the death benefits payable by virtue of the decedents employment. Id. at 798. It merely provided that each party was to have the title to and possession of their own personal belongings. Id. We concluded the decree did not control the contingent interest of the ex-spouse in her former husbands death benefits. Id. Therefore, we gave effect to the decedents designation of his ex-wife as the beneficiary of these benefits, despite testimony that the decedent disliked his former spouse and thought his death benefits would go to his second wife and minor children. Id. at 799.
In Sorensen, we noted the same general rule that a dissolution does not automatically void a beneficiary designation naming the former spouse. 342 N.W.2d at 479. We also observed, however, that a provision in a dissolution decree disposing of the policy proceeds would be given effect. Id. The dissolution decree at issue in Sorensen incorporated the parties stipulation. Id. at 478. The stipulation included a provision in which both parties relinquish[ed] all rights of any kind not expressly provided for in this Agreement. Id. at 478-79 (emphasis in original). We held that this language evidenced the parties intent to wipe the slate clean, including voiding the designation of the former spouse as the beneficiary on the decedents life insurance policy. Id. at 481.
More recently, we again considered whether a former spouse should receive the proceeds of two insurance policies on her ex-husbands life in accordance with a pre-dissolution beneficiary designation. In re Estate of Bickford, 549 N.W.2d 804, 805 (Iowa 1996). In Bickford, the dissolution decree awarded both parties their personal property, but made no specific mention of either partys life insurance policies. Id. We held the decree did not terminate the former spouses interest as the named beneficiary. Id. at 807.
These cases demonstrate that the focus of any inquiry is on the language of the dissolution decree and of any stipulation or settlement agreement governing the parties property rights. We examine these documents to determine whether the dissolution court disposed of the parties contingent interests or whether the parties waived such interests as part of the dissolution of their marriage.
III. Here, the dissolution court divided Daniel and Paulas property in the decree; the record does not contain any stipulation or settlement agreement governing the distribution of their property. Therefore, the issue is this case is not whether Paula waived or relinquished her beneficiary interest in Daniels IRA; the issue is whether the court disposed of this interest in the dissolution decree.
The dissolution decree at issue in the present case differs from those considered in our prior cases. Here, unlike the decrees in Lynch and Bickford, the decree specifically addressed Daniels IRA, awarding it to him. On the other hand, the decree incorporated no all-encompassing waiver language like that found in the Sorensen stipulation. Consequently, the narrow issue to be decided in this case is whether the award of an IRA to one spouse terminates the other spouses expectancy interest as the designated beneficiary of that asset.
Several courts considering this issue have held that a dissolution courts division of the parties property does not, by itself, affect a beneficiary interest; some additional language addressing this expectancy interest is required or the beneficiary spouse must have waived this interest as part of a stipulation or settlement. Compare Christensen v. Sabad, 773 P.2d 538, 540 (Colo. 1989) (en banc) (holding award of life insurance policy to decedent husband in dissolution proceeding did not extinguish ex-wifes expectancy as a beneficiary of the policy); In re Estate of Schleis, 642 P.2d 164, 165 (N.M. 1982) (holding divorce decree granting the insured spouse ownership of [life insurance] policies does not, by itself, sever the beneficiary interest of former spouse); Lewis v. Lewis, 693 S.W.2d 672, 674 (Tex. Ct. App. 1985) (holding designation of wife as beneficiary not affected by divorce decree granting husband any and all policies of life insurance); Bersch v. VanKleeck, 334 N.W.2d 114, 117 (Wis. 1983) (holding divorce decree awarding insurance policies to husband dealt with ownership interest only and did not affect ex-wifes beneficiary interest), with Brewer v. Brewer, 390 S.W.2d 630, 630-31 (Ark. 1965) (holding that property settlement agreement, incorporated into decree, stating wife transferred and released all her interest in insurance policies divested wife of her beneficiary interest (emphasis added)); Kruse v. Todd, 389 S.E.2d 488, 493 (Ga. 1990) (holding ex-wife relinquished her beneficiary interest in husbands IRA in dissolution settlement agreement in which she agreed that IRA was husbands sole property and that she should have no interest therein); Von Haden v. Supervised Estate of Von Haden, 699 N.E.2d 301, 305-06 (Ind. Ct. App. 1998) (holding wife waived her beneficiary interest in husbands retirement account when she agreed in dissolution action to release all claims and right which [she] ever had, now has, or might have, against [her ex-husband] by reason of their former relationship as husband and wife, or otherwise); Western & So. Life Ins. Co. v. Hague, 140 N.E.2d 89, 91 (Ohio 1956) (holding wife had relinquished her right to policy proceeds where she waived all right and interest in any property owned by her husband). But see Graves, 541 N.E.2d at 978-79 (holding that property agreement incorporated into dissolution decree did not affect wifes beneficiary interest in IRA even though IRA was awarded to husband, and wife agreed to relinquish all claims to any property awarded to the decedent because wifes waiver of rights did not specifically mention her beneficiary interest).
Two cases in particular are factually on point. See Walden v. Walden, 686 So. 2d 345 (Ala. Civ. App. 1996); In re Estate of Bruce, 877 P.2d 999 (Mont. 1994). In both cases, the respective dissolution decrees dividing the marital property awarded the husband an IRA. Walden, 686 So. 2d at 345-46; Bruce, 877 P.2d at 1000. Holding that the scope of the decrees was limited to present ownership and not the expectancy the wife may have in her ex-spouses IRA, both the Alabama and Montana courts concluded that the dissolution had no legal effect upon the designation of the ex-wife as beneficiary. Walden, 686 So. 2d at 346; Bruce, 877 P.2d at 1002; accord Estate of Bowden, 595 A.2d at 398 (holding that award of IRAs in property division upon divorce focused only on ownership rights, and did not include a waiver of any contractual expectancy interests).
We reach the same conclusion here. The dissolution decree awarding Daniel his IRA dealt only with present ownership of that fund. There is no language in the decree indicating the court intended to affect Paulas expectancy interest as a beneficiary of this account. See generally In re Roberts Estate, 257 Iowa 1, 6, 131 N.W.2d 458, 461 (1964) (holding a divorce decree should be construed in accordance with [the] evident intention of the court). In this respect, this case is akin to Lynch, where the dissolution decree did no more than award each party a portion of their personal property, and therefore had no affect on the ex-wifes beneficiary interest.
We hold that the dissolution decree at issue here did not divest Paula of any interest she might have as the designated beneficiary of Daniels IRA. Therefore, the written contract between Daniel and the plan administrator controls. The trial court correctly ruled that Paula was entitled to the IRA funds.

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text:
Rodney K. Thurman ("Thurman") and Sharolyn J. Goudie were jointly charged in an one-count indictment filed on August 25, 1999, in the United States District Court for the District of Kansas with taking by force and violence or intimidation approximately $60,000.00 from employees of the United Missouri Bank in Wichita, Kansas, the deposits of which were insured by the Federal Deposit Insurance Corporation, in violation of 18 U.S.C. §§ 2113 (a) and 2. On December 29, 1999, Thurman, who was represented by a federal public defender, filed with the district court a petition to enter a plea of guilty and on the same date he entered into a plea agreement with the government. The plea agreement made no reference to a possible increase in Thurman's base offense level by 3 levels for brandishing or possessing a dangerous weapon during the course of his robbery of the bank, as mandated by the United States Sentencing Guidelines ("U.S.S.G.") §2B3.1(b)(2)(E). The agreement also contained a proviso that it was "agreed and understood that this plea agreement is the only agreement between the United States and the defendant concerning his plea of guilty in the above-styled action, and there are no other deals, bargains, agreements or understandings which modify or alter this agreement." The agreement was signed by Thurman and his attorney and by representatives of the United States Attorney's office. The matter was then referred to the Probation Office for a Pre-Sentence Report.
Thurman's counsel filed objections to the Pre-Sentence Report, alleging that the knife "displayed or possessed" during the robbery did not meet the requirements of U.S.S.G. §2B3.1(b)(2)(E). Although the knife in question was never recovered, in her objections counsel stated that the "knife" consisted of two dinner knives taped together at the handles. It would appear that the knife itself was never pointed at any of the bank employees, but it was used by Thurman who, after demanding money from the bank teller, jumped over the counter and pried open a cash drawer with the knife. Counsel's basic objection was that the dinner knife was not a dangerous weapon. Counsel also objected on the ground that in the negotiations between defense counsel and the government attorney leading up to the plea agreement, the government attorneys promised not to seek any enhancement of Thurman's offense level under U.S.S.G. §2B3.1(b)(2)(E). The Probation Department filed a response to Thurman's objections to the report and stated therein that it was the "opinion of the probation office that a dinner knife is capable of inflicting death or serious bodily injury."
At sentencing, the district court heard defense counsel's objections to the Pre-Sentence Report. At the outset of the hearing, in response to query by the court, defense counsel stated that the "only objection" to the Pre-Sentence Report was the recommended 3 level enhancement made under U.S.S.G.§2B3.1(b)(2)(E). It is true that counsel had filed objections to the recommendation of the Probation Department that Thurman's base offense level be raised 3 levels on two grounds: (1) the dinner knife here involved was not a "dangerous weapon" within the Sentencing Guidelines and (2) the United States Attorney had broken his pre-plea-agreement promise not to ask for enhancement. However, at the sentencing hearing held by the district court, defense counsel urged only the first ground, and never mentioned the second. In other words, in the district court counsel did not in any manner pursue the matter of "broken promises" by the government. After hearing, the district court increased Thurman's offense level by 3 as mandated by U.S.S.G. §2B3.1(b)(2)(E) and sentenced Thurman to 125 months imprisonment.
On appeal counsel urges two grounds for reversal: (1) the dinner knife possessed here does not meet the requirement of U.S.S.G. §2B3.1(b)(2)(E) and (2) the government promised not to seek any such enhancement. We need not consider the latter argument since it was not raised in the district court and cannot now be here resurrected. So, we need only decide whether the dinner knife, admittedly possessed and used by Thurman during the robbery, mandates a 3 level enhancement under U.S.S.G. §2B3.1(b)(2)(E).
(A)If a firearm was discharged, increase by 7 levels; (b) if a firearm was otherwise used, increase by 6 levels; (C) if a firearm was brandished, displayed or possessed, increase by 5 levels; (D) if a dangerous weapon was otherwise used, increased by 4 levels; (E) if a dangerous weapon was brandished, displayed or possessed, increase by 3 levels; or (F) if a threat of death as made, increase by 2 levels.
(d) "Dangerous weapon" means an instrument capable of inflicting death or serious bodily injury. Where an object that appeared to be a dangerous weapon was brandished, displayed, or possessed, treat the object as a dangerous weapon.
In overruling Thurman's objection to the Probation Departments's recommendation that Thurman's offense level be raised 3 levels under U.S.S.G. §2B3.1(b)(2)(E), the district court concluded that the dinner knife which Thurman admittedly possessed and used in the robbery to pry open a cash drawer was of a type that "can be used to inflict serious bodily injury or death." Later, in its order, the district court opined that a dinner knife of the type possessed by Thurman if "jabbed in the eye, it would still result in serious bodily injury to someone without a whole lot of exertion on the part of the user."
The Guidelines are undoubtedly predicated upon the theory that a sentence should be enhanced if the defendant committed the crime while possessing a dangerous weapon. In short, it is an effort to discourage those persons who commit bank robberies from carrying a weapon. The plain language of the Guidelines requires only possession of a dangerous weapon during the crime.
Counsel's mild suggestion that to give the guidelines the interpretation given by the district court would render the guideline "unconstitutionally vague" need not be considered by us since it was never raised in the district court. Suffice it to say we are not persuaded by counsel's suggestion that the guideline here involved is "vague." See United States v. Negri, 1999 U.S. App. LEXIS 5038 at *15 (10th Cir. Mar. 23, 1999).
*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.
2. Honorable Nathaniel R. Jones, Senior Circuit Judge, U.S. Court of Appeals, Sixth Circuit, sitting by designation.
1.The Pre-Sentence Report states that "the 1998 edition of the United States Sentencing Commission Guidelines Manual was used in calculating the offense level in this case."

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74-4202. Kansas real estate commission; organization; powers and duties; compensation and expenses; meetings; office; seal. (a) Within 30 days after the appointment of the members to be regularly appointed within any year, the commission shall meet in the city of Topeka for the purpose of organizing by selecting from its membership a chairperson and such other officers as the commission may deem necessary and appropriate. A majority of the members of the commission shall constitute a quorum for the exercise of the powers or authority conferred upon it.
(b) The commission shall receive applications for, and issue licenses to, brokers and salespersons, as provided in the real estate brokers' and salespersons' license act and shall administer the provisions of this act and the brokerage relationships in real estate transactions act. The commission may do all things necessary and convenient for carrying into effect the provisions of the acts and may adopt rules and regulations not inconsistent with the acts. For the purpose of the acts, the commission shall make all necessary investigations, and every licensee shall furnish to the commission such evidence as the licensee may have as to any violation the acts or any rules and regulations adopted under the acts. The commission may enforce any order by an action in the district court of the county where the alleged violator resides or where the violation allegedly occurred.
(c) Each member of the commission shall be paid compensation, subsistence allowances, mileage and other expenses as provided in K.S.A. 75-3223, and amendments thereto.
(d) The commission shall hold meetings and hearings in the city of Topeka or at such places as it shall determine at such times as it may designate and on request of two or more of its members.
(e) The commission shall maintain an office in the city of Topeka, and all files, records and property of the commission shall at all times be and remain therein.
(f) The commission shall adopt a seal by which it shall attest its proceedings. Copies of all records and papers required by law or the commission to be filed in the office of the commission, when duly certified by the director, assistant director or chairperson of the commission and attested by the seal of the commission, shall be received in evidence in all courts of the state of Kansas equally and with like effect as the originals.
History: L. 1947, ch. 411, § 7; L. 1970, ch. 223, § 2; L. 1974, ch. 348, § 69; L. 1980, ch. 164, § 42; L. 1995, ch. 252, § 24; L. 1996, ch. 212, § 11; Revived, L. 1997, ch. 65, § 45; L. 1997, ch. 65, § 46; L. 2008, ch. 155, § 9; July 1.


§ 174-5 Application for license.
§ 174-6 Certificate of zoning compliance.
§ 174-7 Hearing on applications.
§ 174-8 Town Board action.
§ 174-9 Standards for license.
§ 174-10 Specific regulations for operation.
§ 174-11 Waiver or variance standards.
§ 174-17 Enforcement and inspections; penalties for offenses.
Hazardous and other wastes — See Ch. 162, Art. I.
Health and sanitation — See Ch. 168.
The Town Code of the Town of Kingsbury is hereby amended by adding thereto a new chapter, entitled "Junkyard Regulation and Licensing Law of the Town of Kingsbury."
A clean, wholesome, attractive environment is declared to be of importance to the health and safety of the inhabitants of the Town of Kingsbury and the safeguarding of their material rights against unwarrantable invasion, and, in addition, such an environment is deemed essential to the maintenance and continued development of the economy of the Town and the general welfare of its citizens. It is further declared that the unrestrained accumulation of junk is a hazard to such health, safety and welfare of the citizens of the Town, necessitating the regulation, restraint and elimination thereof. At the same time, it is recognized that the maintenance of junkyards, as hereinafter defined, is a useful and necessary business and should be encouraged when not in conflict with the express purposes of this section, in compliance with the requirements of this article, and otherwise operated and maintained in a lawful manner.
Any portable device in which a material is stored, transported, treated, disposed of or otherwise handled.
A document describing organized, planned and technically coordinated and financially feasible courses of action to be followed in case of emergency or other special conditions. Such a document prepared in accordance with New York State Environmental Conservation Law §§ 27-2301 and 27-2303 shall be sufficient for purposes of this article.
The accidental or intentional releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, escaping, leaching, dumping, burying, abandoning or otherwise disposing into the environment (including, without limitation, surface water or groundwater) of petroleum as defined in § 172 of the New York State Navigation Law or a hazardous substance as defined in § 27-1301(1) of the New York State Environmental Conservation Law (except as to petroleum), or 42 U.S.C. § 9601(14) (except as to petroleum).
No severe rusting, apparent structural defects or deteriorations and not leaking.
Junk motor vehicles and junk appliances as defined in this article, as well as scrap iron, scrap tin, scrap brass, scrap copper, scrap lead or scrap zinc, ferrous or nonferrous scrap, and all other scrap metals and their alloys, and bones, rags, used cloth, used rubber, used rope, used tinfoil, used bottles, old or used machinery, boxes or crates, used pipe or used pipe fittings, used tires, other discarded materials and other manufactured goods that are so worn, deteriorated or obsolete as to make them unusable in their existing condition, but are subject to being dismantled or recycled.
Any household appliance, including but not limited to a stove, washing machine, dryer, dishwasher, freezer, refrigerator, air conditioner, water heater, computer, television, which is stored outside of any residence or enclosed structure for recycling or reclamation purposes.
Any motor vehicle, or used parts or waste materials from motor vehicles which, taken together, equal in bulk one or more such vehicle(s), which is unlicensed or unregistered; or abandoned, wrecked, stored, discarded, dismantled or partly dismantled; or not in a condition for legal use upon the public highways. The fact that a motor vehicle does not display a current motor vehicle registration or license plate shall be presumptive evidence that such motor vehicle is not in a condition for legal use upon the highways.
Any place of storage or deposit, whether in connection with another business or not, where two or more junk motor vehicles are held, whether for the purpose of resale of used parts therefrom, for the purpose of reclaiming for use some or all of the materials therein, whether metal, glass, fabric or otherwise, for the purpose of disposing of the same or for any other purpose, and where such junk or junk motor vehicle is stored outside of any residence or enclosed structure.
Any place of storage or deposit for recycling or reclamation of any household appliance, including but not limited to a stove, washing machine, dryer, dishwasher, freezer, refrigerator, air conditioner, water heater, computer, television, which is stored outside of any residence or enclosed structure.
An establishment having facilities for processing iron, steel or ferrous or nonferrous scrap and whose principal product is scrap iron, steel or ferrous or nonferrous scrap for remelting purposes.
Any business required to be licensed as a junkyard pursuant to § 136 of the New York State General Municipal Law.
Any business required to be licensed as a junk dealer pursuant to Article 6 of the New York State General Business Law.
Any business required to be licensed as a scrap processor pursuant to Article 6-C of the New York State General Business Law.
Storage and/or warehousing of used motor vehicle parts in a fully enclosed building(s) associated with a business engaged in selling the same for use in motor vehicles and temporary indoor storage of five or less inoperative motor vehicles only in conjunction with the same.
The outdoor storage or deposit of one unregistered, old or secondhand motor vehicle except as part of a legally licensed junkyard or legally licensed car sales business.
Designed and maintained to prevent the escape of contained liquids or other materials when appropriately closed, regardless of container orientation (i.e., upright, tipped over).
Any device or material into which elemental mercury or mercury compounds are intentionally added during the manufacture of such devices and in which the continued presence of mercury is required to provide a specific characteristic, appearance or quality or to perform a specific function. Such items include but are not limited to convenience lighting switches, anti-lock brake assemblies and high-intensity discharge headlamps.
Any individual, association, partnership, corporation, limited-liability company or other organization.
Lakes, ponds, reservoirs, impoundments, streams, drainageways, springs, rivers, creeks, marshes and other wetlands, canals and all other bodies of water, natural or artificial.
No person shall operate, establish or maintain a junkyard, nor shall any landowner permit, allow, tolerate or consent to the operation, establishment or maintenance of a junkyard, without a license to operate such junkyard pursuant to this article.
A narrative describing the business activities to be conducted and the nature of the materials involved in the intended business activity.
A certificate of zoning compliance from the Code Enforcement Officer demonstrating that the proposed junkyard will comply in all respects with the Zoning Code of the Town of Kingsbury.
The name, residence, address and telephone number of each individual owner, partner or, if a corporation, limited-liability company or other organization, each officer, director or member thereof.
The name and address of the owner of the real property and the nature of the right under which the applicant possesses the property.
The trade name, address and telephone number of the business.
A statement as to the applicant's compliance history, including, without limitation, a statement as to whether the applicant has been convicted of, charged with or received any notice of violation regarding any crime, misdemeanor, violation or offense of any federal, state or local law, or any of the following: § 136 of the New York State General Municipal Law, Article 6 or 6-C of the New York State General Business Law, § 415-a of the New York State Vehicle and Traffic Law, any applicable provision of the New York State Environmental Conservation Law, or any regulations promulgated pursuant to said laws. The statement may include such other facts or evidence deemed necessary to establish the fitness and capability of the applicant to properly conduct the activity or business for which the license is sought.
Whether the applicant is required to and has obtained a valid junk dealer's license under Article 6 of the New York State General Business Law.
Whether the applicant is required to and has obtained a valid scrap processor's license under Article 6-C of the New York State General Business Law.
Whether the applicant is required to and has been registered with the New York State Department of Motor Vehicles and certified by the Commissioner of the same pursuant to New York State Vehicle and Traffic Law and 15 NYCRR Part 81.
As required by this article, proposed financial security for closure and environmental site assessment, and proposed environmental liability insurance for corrective measures in the event of a discharge.
Proposed contingency plan as required by this article in the event of a fire or discharge or unauthorized material being received at the junkyard.
A statement indicating that the applicant has purchased approved motor vehicle refrigerant recycling equipment or refrigerant recapturing equipment in accordance with New York State Environmental Conservation Law § 38-0107.
Any other information relating to the proposed junkyard that may be requested by the Town Board.
Editor's Note: See Ch. 130, Fees.
The applicant shall submit an environmental assessment form pursuant to the State Environmental Quality Review Act (SEQRA). For unlisted actions, the applicant may submit a long-form or short-form EAF. For Type I actions, the applicant shall submit a long-form EAF. The application shall not be deemed complete until the Town Board has determined that it has received all the application materials required above and either issued a negative declaration or accepted a draft environmental impact statement (DEIS) as satisfactory with respect to scope, content and adequacy as required by SEQRA.
The applicant shall agree that if granted the junkyard license applied for, the applicant will conduct the activity or business pursuant to the regulations hereinafter set forth and any additional conditions which may be imposed upon such license, as provided, and that upon the applicant's failure to do so, such junkyard license may be revoked or subjected to enforcement actions pursuant to this article.
The applicant must obtain a certificate of zoning compliance prior to making its application to the Town Board. The Code Enforcement Officer shall review the applicant's proposed junkyard, including the map(s) and narrative required by this article, for compliance with the Zoning Code and, where in compliance with said Zoning Code, issue the applicant a certificate of zoning compliance stating that the proposed junkyard will comply in all respects with the requirements of the Zoning Code. The certificate of zoning compliance does not relieve the applicant of site plan review by the Planning Board as applicable under Article VIII of the Zoning Code.
The Town Board shall conduct a public hearing within 62 days from the date it determines the application is complete. Notice of the hearing shall be made in a newspaper in general circulation in the Town at least five days prior to the date of the hearing. Written notice of the hearing shall be provided to the applicant at least 10 days prior to the date of the hearing.
Within 62 days of the close of the public hearing, the Town Board shall render a decision on the application for a junkyard license based upon the ability of the applicant to meet the junkyard regulations, standards and requirements contained in this article and any other matter within the purposes of this article. The sixty-two-day period may be extended by mutual consent of the applicant and the Town Board. The Town Board shall have the authority to impose reasonable conditions and restrictions as are directly related to and incidental to the proposed junkyard license.
The Town Board shall make findings related to the standards, regulations and requirements, as well as the purposes set forth in this article, and shall enter such findings into the official minutes. The decision of the Town Board shall be considered filed in the office of the Town Clerk on the date it is rendered, and the applicant shall be notified of the decision and the reasons for such decision by mail within five business days of the decision of the Town Board. If denied, the Town Board shall include reasons for such denial.
At the time and place set for hearing, the Town Board shall hear the applicant and all other persons wishing to be heard on the application for a license to operate, establish or maintain the junkyard. In considering such application, the Town Board shall take into account the suitability of the applicant with reference to his ability to comply with the following licensing standards, the regulations and requirements of this article and other reasonable regulations concerning the proposed junkyard, as well as any other matter within the purposes of this article.
Ownership or control. The Town Board shall require the applicant to provide proof of legal ownership or the right to use of the property for a junkyard purpose during the license period.
Location. The Town Board shall take into account the nature and development of surrounding property, such as the proximity of churches, schools, hospitals, public buildings or other places of public gathering, and whether or not the proposed location can be reasonably protected from affecting the public health and safety by reason of offensive or unhealthy odors, smoke, noise, dust or other pollution. The Town Board shall also take into account the available site access to the proposed location, whether the transportation infrastructure is sufficient to provide ingress and egress to the proposed site, as well as accommodating for the increase in scope and intensity of the traffic. No license shall be issued without obtaining a certificate of zoning compliance as provided for in this article.
Aesthetic. The Town Board shall also take into account the clean, wholesome and attractive environment which has been declared to be of vital importance to the continued general welfare of its citizens by considering whether or not the proposed location can be reasonably protected from having an unfavorable effect thereon. In this connection the Town Board may consider collectively the type of road servicing the junkyard or from which the junkyard may be seen, the natural or artificial barriers protecting the junkyard from view, the proximity of the proposed junkyard to established residential and recreational areas or main access routes thereto, as well as the reasonable availability of other suitable sites for the junkyard.
Compliance history. The Town Board may also consider the applicant's history of compliance with any federal, state or local law or any of the following: § 136 of the New York State General Municipal Law, Article 6 or 6-C of the New York State General Business Law, § 415-a of the New York State Vehicle and Traffic Law, any applicable provision of the New York State Environmental Conservation Law, or any regulations promulgated pursuant to said laws.
The junkyard shall be completely surrounded with a fence which completely screens the facility from view and with a suitable gate which shall be closed and locked at all times except during the working hours of such junkyard or when the applicant or his agent shall be within. Such fence shall be erected at a distance not less than 25 feet from any lot line or any public road and not less than 50 feet from any lot line that adjoins property zoned for residential use. Where the topography, natural growth of timber or other considerations accomplish the purposes of this article, in whole or in part, the fencing requirements hereunder may be reduced, but not eliminated, by the Town Board upon granting the license; provided, however, that such natural barrier conforms to the purposes of this article.
For uncovered areas where junk is to be stored for more than 24 hours, a strip of land 25 feet in width shall be kept free of all dry grass, junk, plant growth or other combustible material so as to provide a fire break around the entire junk storage area. Where the design of the junkyard makes all or part of the required buffer strip unnecessary, such requirement may be reduced or eliminated by the Town Board upon granting the license; provided, however, that adequate emergency access is maintained at all times.
All motor vehicles, and parts thereof, and all junk as hereinabove defined, stored either permanently or temporarily by the applicant, shall be kept within the enclosure of the junkyard except for reasonable transportation of same.
No motor vehicles or other junk shall be piled to any height above one foot below the fence line, and not more than 20 feet high in the Ind-75 Industrial District or 12 feet in any other zoning district, and shall be stacked in a safe manner.
No more than 50 unprocessed cars are allowed on the premises and must be stored on a curbed concrete surface. However, the Town Board may allow more than 50 unprocessed cars in such number as it deems reasonable considering the proposed facility and its ability to prevent discharges of leaking or spilled fluids from such cars. The Town Board shall restrict the number of unprocessed cars allowed on the premises as a condition in the junkyard license.
The junkyard, together with all things therein, shall at all times be maintained in a sanitary and orderly condition and arranged in neat rows so as to permit emergency access as well as easy, clean passage and inspection of the premises.
No garbage or other waste likely to give off a foul odor or attract vermin shall be kept on the premises, nor shall any refuse or garbage of any kind be kept on the premises unless such is junk as defined herein and is in use in the licensed business.
No material shall be burned or buried on the premises.
There shall be maintained at least one fire extinguisher of approved design and capacity for each 40,000 square feet of area. Such fire extinguisher shall be mounted or placed in a conspicuous place and clearly marked.
Suitable rest rooms and sanitary facilities shall be available for the employees of such business.
Sufficient off-street driveway, parking and loading areas shall be provided for the licensee's customers such that all traffic and/or parking will occur outside the roadway rights-of-way and the junkyard does not create a hazard on nearby roadways.
All fluid draining, removal and collection activities shall be conducted on a concrete surface or other surface that allows equivalent protections to surface water and groundwater. Such surfaces shall be cleaned daily, or more frequently when spillage has occurred, using absorbent materials that are collected and properly disposed of.
All fluids shall be completely drained, removed, collected and stored for appropriate use, treatment or disposal.
Junk motor vehicles arriving at the junkyard shall be inspected upon arrival for leaking fluids and unauthorized waste. Leaks should be remedied or contained to avoid discharges of fluids to the environment.
Any other potential environmental contaminants required to be drained, removed, collected and/or stored as required by federal, state or local law.
Fluids that are stored shall be placed in closed containers. The containers shall be in good condition. The containers shall be clearly and legibly marked as to contents. Containers shall be stored on a bermed or curbed concrete surface or surface that allows equivalent protection to groundwater and surface water.
No drums, barrels, tanks or other vessels containing any kind of liquid shall be stored outdoors at any time.
Lead acid batteries shall not be stored on the ground. All lead acid batteries shall be covered by a tarp or other means in a manner that severely restricts water from coming into contact with the lead acid battery. Leaking batteries shall be stored in a leakproof container separately from intact lead acid batteries, and provisions shall be in place to absorb any leakage.
Small PCB capacitors, mercury switches and other mercury-containing devices shall be stored in an appropriate, labeled container for recycling or disposal.
No more than 1,000 waste tires off vehicles shall be stored at the facility at any one time unless all federal, state and/or local permits are obtained.
Fluids shall not be discharged on the ground or to surface water, groundwater or the environment.
Ensure the safe handling, processing and storage of any residues, including, but not limited to, any fluids left over after an automobile is crushed and parts have been extracted, in such a manner as to prevent off-site migration or runoff of pollutants.
Dust shall be effectively controlled so as not to constitute a nuisance or hazard to health, safety or property.
The junkyard shall be maintained so as to prevent or control on-site populations of vectors using techniques appropriate for protection of human health and the environment and which prevent the facility from being a vector-breeding area.
The junkyard shall have a contingency plan which includes a description of the actions to be taken by junkyard employees in the event of a fire, a discharge or unauthorized material being received at the junkyard.
The junkyard shall provide fluid retention records to the Town Board on a monthly basis and shall provide the Town Board with a copy of the junkyard's annual report to New York State DEC pursuant to New York State Environmental Conservation Law § 27-2303.
No junkyard shall be allowed to become a nuisance, nor shall any junkyard be operated in such a manner as to become injurious to the health, safety or welfare of the community or of any residents.
Waiver standard. In granting a waiver of a dimensional (nonphysical) requirement or regulations of this article, the Town Board must consider the benefit to the applicant if the waiver is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such waiver. In making such determination, the Town Board shall also consider: whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the waiver; whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than a waiver; whether the requested waiver is substantial; whether the proposed waiver will have an adverse effect or impact on the physical or environmental conditions in the neighborhood; and whether the alleged difficulty was self-created, which consideration shall be relevant, but shall not necessarily preclude the granting of the waiver.
Variance standard. The Town Board may grant a variance from a nondimensional requirement or regulation of this article only upon determining that such action would be in keeping with the intent and spirit of this article and the best interests of the Town and that denying such request would result in unnecessary hardship to the applicant. In order to demonstrate unnecessary hardship, the applicant must demonstrate that: the applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence; that the alleged hardship relating to the property in question is unique and does not apply to other licensed or unlicensed junkyards in the Town; that the requested waiver or variance, if granted, will not produce an adverse impact on the physical or environmental conditions in the neighborhood of the junkyard or would not alter the essential character of such neighborhood; and that the alleged hardship has not been self-created.
Any waiver or variance authorized by the Town Board shall be made by resolution containing the grounds for granting such relief. The Town Board shall require such conditions as will, in its judgment, secure substantially the objectives of the regulation or requirement so waived or varied. Under no circumstances shall the Town Board vary the limitations contained in the prohibition section of this article.
Editor's Note: See § 174-12, Prohibition.
No junkyard shall be licensed to operate within 500 feet of a church, school, hospital, nursing home, public park, public building or other place of public gathering, measured from the property line of such place.
The fee for a junkyard license shall be established from time to time by the Town Board, which sum shall cover not only the cost of issuing the license itself but also the cost of making the necessary inspections of the premises to ascertain compliance with the license conditions and restrictions and the regulations hereinafter prescribed.
Editor's Note: See Ch. 46, Fees.
A junkyard license shall be placed and at all times displayed in a conspicuous place upon the licensed premises.
A junkyard license shall be effective from April 1 until March 31 of the next succeeding year, or for the remaining portion thereof when such a license is issued after April 1. An application for such license must be made annually and submitted by March 1 each year that the applicant desires to conduct or continue the junkyard.
An application accompanied by the required application fee.
A certificate of zoning compliance.
An affidavit by the licensee certifying compliance with all requirements of this article and any conditions of the existing license.
A short- or long-form EAF pursuant to SEQRA.
A revised estimate of costs for closure and environmental assessment based on current operations at the facility and as proposed during the term of the renewal license.
In considering such renewal application, the Town Board shall take into account the suitability of the applicant with reference to his ability to comply with the licensing standards, regulations and requirements of this article and other reasonable regulations concerning the junkyard, as well as any other matter within the purposes of this article.
A junkyard license is personal to the licensee. It will not attach to the title to the real property nor may it be sold, assigned, transferred or otherwise disposed of.
A junkyard license may be revoked by the Town Board for violating any provision of this article or any condition or restriction of the junkyard license according to the procedures in this article. Upon revocation of a license, the Town Board may require the termination of such activities upon the premises and removal of any junk or other materials of the nature described herein which would constitute a junkyard.
Application: At the time of application, the applicant shall provide a detailed estimate, prepared by a licensed professional engineer, for closure and environmental site assessment of the property in the event the license is revoked, not renewed or the junkyard otherwise ceases to operate.
Empty the junkyard to such extent that the junk materials therein no longer require licensing under this article ("closure").
To conduct a Phase II Environmental Site Assessment to determine the extent of any environmental discharges on the property ("environmental site assessment").
This cost estimate for closure and environmental site assessment must be approved by the Town Board.
Form of financial security for closure and environmental site assessment. Before a junkyard license is issued, the applicant shall post with the Town a surety bond issued by a surety company (or other acceptable financial guarantee) satisfactory to the Town Board in an amount sufficient to cover estimated costs for closure and environmental site assessment should the junkyard license be revoked, not renewed or the junkyard otherwise ceases operations. The applicant shall maintain such bond (or other acceptable financial guarantee) satisfactory to the Town at all times during the license period until such facility has completed closure to the satisfaction of the Town Board and the environmental condition of the property has been assessed. Failure to maintain such bond (or other acceptable financial guarantee) in effect shall result in immediate revocation of the junkyard license.
Upon its consideration of an application for a renewal license as required under this article, the Town Board may review the sufficiency of the financial security for closure and environmental site assessment of the junkyard.
Financial security for environmental contamination. Before a junkyard license is issued, the applicant shall provide the Town Board with a certificate of pollution legal liability insurance, acceptable to the Town Board, by a financially responsible insurer, and such policy shall name the Town as an additional insured under the policy, but only to the extent that the Town has an insurable interest. Said policy shall include coverage for cleanup of on-site and off-site contamination from discharges at the junkyard or its operation or maintenance, including property damage and remediation costs, of at least $5,000,000 per occurrence and $5,000,000 in the aggregate for the term of the license period. Failure by the applicant to maintain such insurance coverage shall result in immediate revocation of the junkyard license.
The holder of a junkyard license shall furnish the Town Clerk proof of renewal of each insurance policy certificate and surety bond (or other acceptable financial guarantee) required by this article and not less than 60 days before the same would otherwise expire or terminate.
Any person or persons, jointly or severally aggrieved by any decision of the Town Board concerning such license application pursuant to this article, or any officer, department, board or bureau of the Town, may have the decision reviewed by the New York State Supreme Court in the manner provided by Article 78 of the Civil Practice Law and Rules, provided the proceeding is commenced within 30 days after the filing of the decision in the office of the Town Clerk.
Licensed junkyards. Within 30 days of the effective date of this article, a person operating or maintaining a junkyard, as defined herein, and holding a valid license issued by the Town Board pursuant to New York State General Municipal Law § 136 (an "existing licensed junkyard") must apply for a junkyard license pursuant to this article. Such existing licensed junkyard which does not fully meet the regulations and requirements of this article may be granted a temporary junkyard license subject to the requirements contained in this section, which temporary junkyard license will be valid until the date upon which the existing license pursuant to New York State General Municipal Law would otherwise have expired or for six months, whichever period is longer. At the end of such temporary period, any such existing licensed junkyard must fully comply with all junkyard regulations and requirements contained in this article and obtain a junkyard license as provided in this article; otherwise, such existing licensed junkyard shall be terminated and the person operating any such junkyard shall immediately cease and desist from operating or conducting same and shall close such junkyard by removing from such place any junk or other materials of the nature described herein which would constitute a junkyard.
Except as otherwise provided in this section, all other persons operating and maintaining a junkyard without a valid license issued by the Town Board pursuant to New York State General Municipal Law § 136 must apply for a junkyard license within 30 days of the effective date of this article or otherwise shall immediately cease and desist from operating or conducting same and shall close such junkyard by removing from such place any junk or other materials of the nature described herein which would constitute a junkyard.
Temporary license standards. In determining whether to issue any temporary license(s) under this section, the Town Board shall take into account the suitability of the applicant with reference to his ability to comply with the licensing standards contained in § 174-9A through D, other reasonable regulations concerning such junkyard and any other matter within the purposes of this article, but the Town Board shall not consider compliance with the regulations and financial security sections of this article. The Town Board may, nonetheless, attach reasonable conditions to such temporary license as may be required to protect the public health, safety, welfare and environment of the Town.
Editor's Note: See §§ 174-10 and 174-14, respectively.
Enforcement officer. This article may be enforced by the Code Enforcement Officer as designated enforcement officer. The Code Enforcement Officer shall have the authority to enforce the provisions of this article, the conditions and restrictions of a junkyard license and to inspect premises within the Town as necessary for said enforcement.
The Code Enforcement Officer shall make periodic inspections of the Town to ensure that all existing junkyards have licenses and that the requirements of this article are met. The enforcement officer shall inspect all junkyards licensed under this article at least once a year to determine whether such junkyards are being operated in accordance with the provisions of this article, the conditions and restrictions of such license, and other applicable provisions of law.
No person shall refuse entry to the Code Enforcement Officer or the authorized representative of the Code Enforcement Officer attempting to enter any premises for the purposes of inspection. Such entry shall be permitted not only to areas open to the public but also to all other areas.
Revocation of license. The Town Board may revoke a junkyard license upon reasonable cause should the applicant fail to comply with any provision of this article or any condition or restriction of a junkyard license. Before a junkyard license may be revoked, a public hearing shall be held by the Town Board at which it shall hear from the license holder(s) and all persons wishing to be heard on such matter. Notice of the hearing shall be made in the official newspaper at least five days prior to the date thereof. Written notice of such hearing may be served by personal service or through certified mail, return receipt requested, to the last known address of the property owner or junkyard operator if different than the property owner. Service of such notice shall be made 10 days before the scheduled hearing. When service is made by certified mail, return receipt requested, service shall be deemed complete upon delivery of the notice to the property owner or junkyard operator.
Issue a written notice to comply, which shall contain the following information: the name of the person to whom the notice shall be addressed; the location of the premises involved; a statement of the facts alleged to constitute an unlicensed junkyard or a violation of this article or the conditions and restrictions on a junkyard license; a demand that the alleged offender bring the premises into compliance with this article and/or its license, if any, within a specified number of days after service of the notice; a statement that failure to comply may result in prosecution; and a copy of the relevant provision(s) of law or condition(s) and restriction(s) alleged to be violated.
Issue an appearance ticket to any such person and cause such person to appear before the Town Justice.
Any person found to be in violation of the provisions of this article shall be deemed to have committed an offense against such law and shall be subject to a fine not to exceed $1,000 or imprisonment for a period not to exceed 30 days, or both. A penalty of $1,000 may be recovered by the Town in a civil action. Each day such condition shall continue shall constitute a separate offense.
The Town Board may enforce the requirements of this article utilizing all provisions of this section and may maintain an action or proceeding in the name of the Town in a court of competent jurisdiction to compel compliance with or restrain by injunction the violation of any provision of this article or the conditions and restrictions of a junkyard license.
No remedy specified in this section shall be the exclusive remedy or penalty available to address any offense against this article, and each such remedy or penalty specified in this section shall be in addition to, and not in substitution for or limitation of, any other remedies or penalties specified in this section or in any other applicable law. Any remedy or penalty specified in this section may be pursued at any time, whether prior to, simultaneously with or after the pursuit of any other remedy or penalty specified in this section or in any other applicable law.