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N.H. Motor Transp. v. Plaistow, Town of

ELR Citation: 25 ELR 21354
Nos. No. C-93-149-L, 881 F. Supp. 695/(D.N.H., 09/19/1994)

The court holds that enforcing a town's ordinance through a county court decree permanently restricting truck access to a loading terminal to nighttime hours does not violate the Surface Transportation Assistance Act (STAA), 49 U.S.C. app. §2312, the Hazardous Materials Transportation Uniform Safety Act (HMTUSA), 49 U.S.C. app. §1801, or the Commerce Clause of the U.S. Constitution. Shortly after the trucking company that leased the terminal began operating it, the town served a cease and desist order on the trucking company for violating the town's zoning ordinance that prohibited uses that are dangerous to the health or safety of the town's residents. After the town petitioned the county court to enjoin the trucking company from operating, the county court issued a decree permanently restricting access by truck traffic to the terminal by allowing 2 trucks to arrive or depart between 9 p.m. and 11 p.m., prohibiting any trucks to arrive or depart between 11 p.m. and 5 a.m., and allowing 3 trucks to arrive or depart between 5 a.m. and 6 a.m. The court notes that the trucking company's business interests must be balanced with the interests of abutting landowners. The court first holds that enforcement of the county court's decree does not unreasonably deny access to the terminal in contravention of the STAA, and that the town's ordinance enforcing noise and odor control in its residential limits is valid and reasonable. The county court reached an equitable compromise after carefully considering the exigencies of the trucking company's business and the equal rights of adjoining landowners in the enjoyment of their homes. The court does not address the issue of whether the county court's decree is res judicata with respect to the town's Commerce Clause claim, because it finds no violation of the Commerce Clause in the context of the federal case. Finally, the court holds that prohibiting access to the terminal during the hours specified does not violate the HMTUSA or its underlying regulations, even though enforcing the ordinance has the effect of delaying shipment of hazardous materials.

Counsel for Plaintiffs
Daniel T. Chabot
LaFlamme, Migliori, Barron & Chabot
114 Kenoza Ave., Haverhill MA 01830
(508) 521-4737

Counsel for Defendant
Sumner F. Kalman
Devine, Millimet & Branch
111 Amherst St., P.O. Box 719, Manchester NH 03105
(603) 669-1000