|Legal Opinion: |
Text of Document:
July 3, 2001
Dear City Manager:
You have four questions:
1. Can the city limit the time of day trucks use the city streets?
2. Can the city regulate the time of day trucks use back-up beepers?
3. Can the city regulate truck weight on city streets?
4. Can the city impose stiffer fines for speeding by trucks than speeding by automobiles?
The answer to question 1 is generally no, but additional facts are needed before a final determination can be made.
The answer to question 2 is probably no.
The answer to question 3 is probably yes.
The answer to question 4 requires more research, but may be yes.
Reasonable municipal regulations on various kinds on truck traffic using city streets have generally been upheld, provided that such regulations do not unduly burden interstate commerce. While I do not know in detail the facts behind this question, I understand the question relates to trucks operating from a rock quarry at all hours of the day and night, creating considerable noise. I suspect there are interstate commerce implications in this question, if for no other reason than any regulations would need to apply to all vehicles in a similar class. For that reason, the regulation would probably bring within its scope more trucks than those operating from the rock quarry.
The question of whether the operation of the rock quarry during certain hours is a nuisance could be explored by the property owners affected by the noise. In Sherrod v. Dutton, 635 S.W.2d 117 (Tenn. App. 1982), a go-cart track was enjoined from operating during certain hours of the night because the noise it created was a nuisance in fact. In that case the Court pointed out that:
Although business enterprises are not allowed to enter a community and unreasonably interfere with the present property owners’ enjoyment of their property, the courts attempt to accommodate both residential and business uses. The use of an injunction to totally abate a lawful enterprise is sparingly used. [At 121]
Similarly, the objectionable operations of motor and truck terminals have sometimes been restricted. [2 ALR3d 1372]
As I recall, the use of back-up beepers on certain motor vehicles is a federal requirement. I have been unable on short notice to find the regulation, but will keep looking. Even if I am wrong, I cannot imagine a court forcing truck operators not to use such beepers. The liability potential for trucks backing into people and property is so high that such beepers have become a way of life in motor vehicle operations of all kinds. Even some light passengers vehicles now have back-up beepers.
It is usually taken for granted that a city can regulate truck limits on its streets. Town of Smyrna v. Plisch, Tn. Ct. App., MS, filed August , 1985, supports that view. Tennessee Attorney General’s Opinion 243 (September 15, 1982) also concluded that the Town of Troy had the authority to establish weight limits under its general law mayor-aldermanic charter. But Tennessee Attorney General’s Opinion U90-132 addressed the question of whether a population bracket in a general law that restricted truck weights on certain residential streets only in Davidson County was constitutional. However, it also touched on the general question of whether a municipality could by ordinance even establish such restrictions:
Although the issue is a close one, it is the opinion of this office that Chapter 436 may contravene mandatory general law. TCA 55-7-201–55-7-208 set weight limits which are mandatorily applicable unless modified by the commissioner of transportation, county officials, or municipal ordinance. Chapter 436 enacts a lower limit by a different method than contemplated by the general law. [At p.3] [Emphasis is mine.]
If those statutes are read closely, it can be argued that they pre-empt municipal truck weight regulations except in one very narrow sense: permits for exceeding state size and weight limitations. They prescribe truck weight and other limits on state highways, and on county and municipal roads and streets; nowhere do they authorize municipalities to set different weight limits by ordinance Tennessee Code Annotated, § 55-7-207, does exempt from the length and weight limitations public transit vehicles, and Tennessee Code Annotated, § 55-7-205 authorizes the commissioner of transportation to issue permits for moving vehicles of excess weight or size, and provides that municipal authority to issue such permits is limited to the maximum weight and dimensions approved by the commissioner.
However, it is my view that Smyrna v. Plisch is sufficient authority for a municipality to regulate truck weights on its streets unless a court says otherwise.
My quick research has disclosed no case involving the question of whether a municipality can provide a stiffer fine for truck speed limits violations. It seems logical, given the ability of speeding trucks to do considerable more damage than speeding automobiles, to provide for such stiffer penalties. But I would like more time to dig deeper into this question.
Sidney D. Hemsley
Senior Law Consultant