Intercepted Message-Your Highway Department in Action!!!

From: john leyzorek <leyzorek@yahoo.com>
To: "normanalderman@yahoo.com" <normanalderman@yahoo.com> 
Sent: Thursday, September 19, 2013 11:19 AM
Subject: Fw: salvage yard license

John Leyzorek

Leyzorek Machine & Tool Co Route 1 Box 249 Marlinton, West Virginia 24954 304 799 7191

----- Forwarded Message -----
From: john leyzorek <leyzorek@yahoo.com>
To: "Demotto, Lorren H" <Lorren.H.Demotto@wv.gov> 
Sent: Friday, August 23, 2013 1:08 PM
Subject: Re: salvage yard license

Thanks for the reference.  I will research and get back to you.

John Leyzorek

Route 1 Box 249 Marlinton, West Virginia 24954 304 799 7191

From: "Demotto, Lorren H" <Lorren.H.Demotto@wv.gov>
To: john leyzorek <leyzorek@yahoo.com> 
Cc: Bill.E.Light@wv.gov 
Sent: Thursday, August 22, 2013 3:43 PM
Subject: RE: salvage yard license

Mr. Leyzorek, 157 CRS 6 2.39 defines “Salvage Yard” means any place which is maintained, operated or used for the storing, keeping buying, selling, or processing of salvage, or for the operation and maintenance of a motor vehicle grave yard. Any collection of three or more automobile hulks, or combination of ferrous or non-ferrous materials together with one or more automobile hulks, or a collection of any salvage contained in an area more than one-quarter acre in size is a salvage yard.

Noting I have giving you time since 17-June-2013 to apply for a required state salvage yard license if you decide to keep your salvage or eliminate the salvage, I will grant you ten additional days to either make application for the state salvage yard license or eliminate the salvage before I pursue legal action against you.

                                                                                                                                                          & ;a mp;nb sp;                                                                                                       Sincerely, L. H. Demotto  INSP III WVDOH

From: john leyzorek [mailto:leyzorek@yahoo.com] 
Sent: Wednesday, August 21, 2013 9:57 AM
To: Demotto, Lorren H
Cc: j hare
Subject: Re: salvage yard license

Mr.Demotto,

I appreciate the time you have given me to dispose of extraneous materials here, and to research my position.

I am of the opinion that my home here is not in violation of any applicable statute or regulation, that salvage yard licensing is not needed to cover my private personal property, and that DOH is without lawful authority to prosecute me for lack of said inapplicable licensing.

I am forming this opinion for the following reasons, and I respectfully ask for your response before either I attempt to proceed with salvage yard application, or you proceed with criminal charges:

1. I have no materials here meeting the definition of "salvage."". All my personal property I have acquired and possess for specific lawful personal uses and purposes. Any material which may deteriorate beyond usefulness to me, I dispose of lawfully and appropriately. The purported definition of “salvage” in 17-23-2g is unconstitutionally broad and and must be construed together with the common-use definitions of the word which in this case would be material of no use in its present form and collected for sale for reprocessing, or else it would include essentially all metallic objects since metals are coeval with the creation of the world. Failure of imagination or technical knowledge on the part of an uninvited observer does not lawfully convert my personal property into “salvage” subject to regulation.

2. A salvage yard within the meaning of the statutes is a business enterprise.   My personal property is not now used in any regular operating business enterprise.  I have no operating hours, the public is not welcome on my property, I do not advertise any goods or services for sale, I do not regularly purchase any materials for resale.

3. The statutory authority of the Division of Highways and its Commissioner  all relates to highways, and areas adjacent to them. "Adjacent" is defined in 23 U.S.C., Section 136(b) as within 1000feet. All parts of my property are more than three times that distance from any highway or public right-of-way.

4. The supposed statutory authority of the DOH and its Commissioner over salvage yards (which I do not have), subject to its restricted jurisdiction adjacent to highways (which I am not),  is set forth in Article 23 of Chapter 17, which is explicitly based on the finding that salvage yards “in areas adjacent to state roads.........should be controlled”. No part of my property is adjacent to any State road, thus there exists no statutory mandate to control it.

Walter v Ritchie 191 S.E.2d 275, 156 W.Va. 98 establishes that in fact the DO H has no authority to issue nor to deny a salvage yard license for locations not adjacent to the road. It would be absurd to suppose that it could prosecute for lack of a license that it has no power to grant or to withhold.

The supposed unchallenged ultra vires issuance of one license in 1994 does not alter this principle, nor create a new power..

5. The statute discussed here was enacted to subserve Federal legislation exclusively concerned with the visual aesthetic impact of salvage yards. ( 23 U.S.C., Sections 136 and 131) Appropriately, the Statute&apos;s expressed rationale (17-23-1) for such control is the visual impact of salvage yards on recreation, tourism, property values. No man-made objects or features on any part of my property are visible from any public roads or rights-of-way, therefore my personal possessions on my private property are not proper subjects of this Statute nor under the lawful jurisdiction of the DOH or its Commissioner.

The specific and exclusive relation of salvage yard regulation to aesthetic considerations is reinforced at great length in Farley v. Graney 119 SE 2d 833, 146 WV 22. No man-made feature of my property is observable from any public right-of-way, therefore again, the statute should not be applied to my property or my activities thereon.

6. The warrant under which Mr. Demotto entered my property was defective in at least two respects, viz., it was unconstitutionally vague as alleging “violating or potentially violating numerous environmental statutes”, had therefore no relation to Mr. Demotto&apos;s lawful responsibilities, and was based upon hearsay (anonymous complaint) and upon alleged photographic evidence (from “bing.com”) which was in turn obtained without warrant and without permission therefore by trespass and in violation of the Fourth Amendment to the US Constitution, therefore any observations made were “fruit of the poison tree” and cannot be made the basis of any prosecutions.

7. The State is full of  other properties with accumulations of  metallic and other personal property both more extensive and  far more easily visible from public rights-of-way than mine, which are not the subject of any harassment such as you are threatening me with, such as, for instance, a certain location along Fitzpatrick Road in Raleigh County.  Any prosection of me for my personal possessions would not only be ultra vires under the Statutes, but malicious and selective.

Thank you for your consideration of my opinions here expressed. I look forward to your response, and look forward also to working with you to arrive amicably at an appropriate and lawful rsolution of your concerns.

John Leyzorek

Route 1 Box 249
Marlinton, West Virginia 24954
304 799 7191

From: "Demotto, Lorren H" <Lorren.H.Demotto@wv.gov>
To: john leyzorek <leyzorek@yahoo.com> 
Cc: Bill.E.Light@wv.gov 
Sent: Tuesday, August 20, 2013 1:28 PM
Subject: RE: salvage yard license

Mr. Leyzorek, I need to do a follow-up inspection of your property to ensure the salvage yard violations have been abated or to verify you have made prompt action to apply for a state salvage yard license.  On 17-June-2013 you requested me to grant you additional time to either make application for a state salvage yard license or eliminate the salvage, in which I did grant to you. Please contact me at 304-476-6031 or by e-mail. Thank you, L.H. Demotto, INSP III WVDOH.

From: john leyzorek [mailto:leyzorek@yahoo.com] 
Sent: Friday, June 28, 2013 11:42 AM
To: Demotto, Lorren H
Subject: RE: salvage yard license

Mr. Demotto, I finally caught your very helpful supervisor, Mr.Light, in his office this morning, and he advised me on obtaining the records I want to see. My next email will be to your staff attorney Ms. Ellis with a FOIA, for this purpose.  Otherwise, as a progress report, I will tell you that I disposed last Friday of 125 tires through the cooperation of Mike Park as you recommended.  Today is the last day I have given the owner of most of the old cars to remove them (no sign of him yet).  Monday I will call Steve Clendenen of Boggs Scrap Iron in Caldwell, who has already agreed  to come get them. Last night I received permission from the County Commission for the license. I discussed the radius considerations with surveyor Brian Beverage, and based on his cursory look at maps, I may need neighbor waivers. I ordered, and just received yesterday, a piece to upgrade my computer so I can use Google Earth to confirm this, so I can form my own opinion of my chances of getting such waivers from particular neighbors, before I sink money into the services of the surveyor.   The computer will also show me where I would have to move things to, if I do have to move them to get farther away from neighbors. You will not be surprised to hear that I still do not think I should be required to do this, but you can see I am pursuing it in good faith, and I truly appreciate the helpfulness you have shown. John Leyzorek Route 1 Box 249 Marlinton, West Virginia 24954 304 799 7191 --- On Mon, 6/17/13, Demotto, Lorren H <Lorren.H.Demotto@wv.gov> wrote: From: Demotto, Lorren H <Lorren.H.Demotto@wv.gov> Subject: RE: salvage yard license To: "john leyzorek" <leyzorek@yahoo.com> Cc: Bill.E.Light@wv.gov Date: Monday, June 17, 2013, 1:19 PM The salvage yard regulations I provided you with has an attachment added to it. This section is known as Title 157, Legislative Rule, Department of Transportation, Division of Highways. Look at page 3, section 8.7.c. It states all measurements shall be made in a straight line from the outer most boundary of the salvage yard to the occupied private residence or the nearest residence in a residential community. I do not have any past salvage yard applications to view. You may call my supervisor, Bill Light 304-558-9341, he may be able to direct you for your request. If there is no attachment on the regulations please advise me of so, and I will supply you with one. Also if your surveyor has any questions I will be more the glad to answer for him. Sincerely, L.H. Demotto!! From: john leyzorek [mailto:leyzorek@yahoo.com]  Sent: Monday, June 17, 2013 9:49 AM To: Demotto, Lorren H Subject: RE: salvage yard license Mr.Demotto, Thank you very much for your consideration. As your email was coming in, I was on the computer searching for certain information. When I spoke to the surveyor (on Saturday), he pointed out that the regulation was not clear on whether the distance from a "community" is to be measured as-the-crow-flies, or by road.   The legislative findings in 17-23-1 strongly suggest that road distance is meant, but  I ask your opinion on this question. Further, perhaps you can assist me to obtain copies, or access to inspect, past salvage yard license applications, including the attached surveys,  to see what sort of specific circumstances are approved and denied.  If there is a specific person whom I must contact to obtain this information, or number to call, I would be grateful if you could direct me. Thank you again for your willingness to assist me in complying with the law. John Leyzorek --- On Mon, 6/17/13, Demotto, Lorren H <Lorren.H.Demotto@wv.gov> wrote: From: Demotto, Lorren H <Lorren.H.Demotto@wv.gov> Subject: RE: salvage yard license To: "john leyzorek" <leyzorek@yahoo.com> Cc: Bill.E.Light@wv.gov, "Cramer, Cindy L" <Cindy.L.Cramer@wv.gov> Date: Monday, June 17, 2013, 9:04 AM Mr. Leyzorek,    Thank you for your prompt action concerning this matter. I will give you the time needed to make required measures to remedy this case. I will follow-up with you in 30 days to ensure actions taken to ensure compliance with salvage yard violations. If needed please contact me for any assistance I can give.                                                      Sincerely,                                                                     L.H. Demotto                                                                      WVDOH INSP III From: john leyzorek [mailto:leyzorek@yahoo.com]  Sent: Friday, June 14, 2013 8:37 AM To: Demotto, Lorren H Subject: salvage yard license Mr. Demotto, I spoke by telephone with Mike Park yesterday on his cell &apos;phone 304 940 0258, which I invite you to confirm with him, and he told me that his agency will be collecting tires at the Pocahontas County Landfill on Friday 21 June.  I will be there with my excess.  I left a message with surveyor Brian Beverage (3047996446) that I needed him to make the required distance determination ASAP. I met with Sue Helton, Secretary of the Pocahontas County Commission (3047996063) yesterday, and she is preparing the permit for the Commission&apos;s approval, and has placed it on the Commission&apos;s Agenda for their 27 June special meeting, the soonest scheduled. I invite you to confirm this with her. Since I have diligently begun and will pursue in good faith the process of obtaining the license you say I need, I would like to ask you to forbear filing charges against me on Monday.   The possibility of having to pay court costs even if you subsequently drop the charges concerns me, particularly since I do not operate a salvage yard as a business or derive any income from it, am not a wilfull violator of any law, and am driven to the process of obtaining the license merely to hold on to my personal property which I use to maintain my own farm equipment and vehicles and to build my house. Thank you for your clear explanations of the regulations and your position on Tuesday, and for considering my request. John Leyzorek Route 1 Box 249 Marlinton, West Virginia 24954 304 799 7191