City of Morgantown v. Nuzum Trucking Co.

• Decision Date: 07 April 2016
• Docket Number: No. 15–0127.,15–0127.
• Citation: 237 W.Va. 226,786 S.E.2d 486
• Parties: The CITY OF MORGANTOWN, West Virginia, A West Virginia Municipal Corporation, Defendant Below, Petitioner v. NUZUM TRUCKING COMPANY, A West Virginia Corporation, and Preston Contractors, Inc., A West Virginia Corporation, Plaintiffs Below, Respondents and Greer Industries, Inc., A West Virginia Corporation, Intervenor Plaintiff Below, Respondent and The West Virginia Department of Transportation, Division of Highways, A West Virginia Executive Agency, Indispensable Party/Defendant Below, Respondent
• Court: West Virginia Supreme Court

237 W.Va. 226

786 S.E.2d 486

The CITY OF MORGANTOWN, West Virginia, A West Virginia Municipal Corporation, Defendant Below, Petitioner

v. NUZUM TRUCKING COMPANY, A West Virginia Corporation, and Preston Contractors, Inc., A West Virginia Corporation, Plaintiffs Below, RespondentsandGreer Industries, Inc., A West Virginia Corporation, Intervenor Plaintiff Below, RespondentandThe West Virginia Department of Transportation, Division of Highways, A West Virginia Executive Agency, Indispensable Party/Defendant Below, Respondent

No. 15–0127.

Supreme Court of Appeals of West Virginia.

Submitted March 1, 2016.

Decided April 7, 2016.

Robert M. Bastress, Jr., Morgantown, WV, for Petitioner.

Michael J. Folio, Jonathan T. Storage, Francis M. Curnutte, III, West Virginia Division of Highways, Legal Division, Charleston, WV, for Respondent, West Virginia Department of Transportation, Division of Highways.

Paul R. Cranston, James B. Shockley, Cranston & Edwards, PLLC, Morgantown, WV, Attorneys for the Respondents, Nuzum Trucking Co. and Preston Contractors, Inc.

Frank E. Simmerman, Jr., Chad L. Taylor, Frank E. Simmerman, III, Simmerman Law Office, PLLC, Clarksburg, WV, for Respondent, Greer Industries, Inc.

DAVIS, Justice:

This appeal involves an attempt by the City of Morgantown, West Virginia (“Morgantown”), to regulate, by municipal ordinance, the weight and size of certain vehicles using a portion of West Virginia State Route 7 that passes through Morgantown. The instant proceeding was initiated in the Circuit Court of Kanawha County to challenge Morgantown's ordinance. Morgantown herein appeals an order issued by the circuit court that granted the plaintiffs' motion for summary judgment on the issue of state preemption, which had been filed by respondents herein, Nuzum Trucking Company (“Nuzum”) and Preston Contractors, Inc. (“Preston”), who were joined by intervenor below, Greer Industries, Inc. (“Greer”) (collectively “Trucking Plaintiffs”). In addition to granting the Trucking Plaintiffs' motion for summary judgment, the circuit court contemporaneously denied Morgantown's cross-motion for summary judgment. Because we find no error in the circuit court's rulings, we affirm.

I.FACTUAL AND PROCEDURAL HISTORY

The following facts are undisputed. West Virginia State Route 7 (“WV Route 7”) is a primary state road; it was expressly designated as such by order of the State Road Commission of West Virginia dated June 12, 1945.¹ A portion of WV Route 7 runs through Morgantown's B–4 Business District. For many years, Trucking Plaintiffs have utilized WV Route 7 to transport their products into the broader system of intrastate and interstate commerce. In 2013, a group of individuals designated themselves as “Safe Streets Morgantown” and endeavored to prevent certain heavy truck traffic from using WV Route 7 through Morgantown's B–4 Business District. To achieve this goal, Safe Streets Morgantown advocated that the Morgantown City Council enact an ordinance to prohibit certain vehicles exceeding an established weight and size from using the portion of WV Route 7 that passes through Morgantown (“WV Route 7 Heavy Truck Ordinance”).

On July 25, 2014, Morgantown's City Manager met with representatives of the Respondent herein, the West Virginia Department of Transportation, Division of Highways (“the DOH”),² to discuss Morgantown's desire to pass its WV Route 7 Heavy Truck Ordinance. Following this meeting, by letter dated July 29, 2014, the DOH's legal division director, Mr. Anthony G. Halkias, advised Morgantown that

West Virginia Code Sections 17–4–27 and 17C–17–12 do not allow for local management of roads within the state road system. The Legislature has granted the Commissioner of Highways plenary power to manage and control the use of public highways comprising the state road system. Therefore, without the permission of the Commissioner, any such municipal regulation would be invalid.

Notwithstanding the DOH's stated position, Morgantown's City Council nevertheless presented for a first reading on August 19, 2014, the WV Route 7 Heavy Truck Ordinance amending Article 347 of Morgantown's Traffic Code. The WV Route 7 Heavy Truck Ordinance was thereafter adopted on September 2, 2014.³ It was to take effect ninety days from the date it was adopted by Morgantown's City Council.

On October 17, 2014, Nuzum and Preston filed a multi-count verified complaint in the circuit court of Kanawha County challenging Morgantown's WV Route 7 Heavy Truck Ordinance. The complaint named Morgantown as a defendant and also named the DOH as an indispensable party/defendant. Relevant to this appeal, Count I of the complaint asserted, in essence, that the WV Route 7 Heavy Truck Ordinance is preempted by state law. In addition, Count I sought expedited declaratory relief finding the ordinance void, and a permanent injunction prohibiting Morgantown from enforcing its WV Route 7 Heavy Truck Ordinance. Nuzum and Preston then filed a motion for expedited summary judgment as to Count I. Morgantown responded with a cross-motion for summary judgment and a memorandum in opposition to Nuzum's and Preston's summary judgment motion. During this time, Greer filed a motion to intervene and became a party to the action. Greer and the DOH both joined Nuzum's and Preston's motion for summary judgment.

The parties all agreed that issues raised in the summary judgment motions were purely legal and, therefore, were ripe for resolution by summary judgment. Following oral arguments from the parties pertaining to the summary judgment motions then pending, by order entered January 12, 2015, the circuit court granted the Trucking Plaintiffs' motion for summary judgment, in which the DOH had joined, and denied Morgantown's motion. By order entered January 29, 2015, the circuit court denied Morgantown's “Motion for Reconsideration.” This appeal followed.

II.STANDARD OF REVIEW

The case sub judice is before this Court on appeal from an order granting summary judgment on the issue of state preemption of a municipal ordinance. Accordingly, we exercise plenary review: “A circuit court's entry of summary judgment is reviewed de novo. ” Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). In carrying out our plenary review, we are mindful that “[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). Our decision in this case additionally necessitates an examination of various statutory provisions and resolution of questions of law. We exercise plenary review in these contexts as well. “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Conscious of the foregoing standards, we proceed with our consideration of this appeal.

III.DISCUSSION

Urging this Court to overturn the circuit court's grant of summary judgment, Morgantown raises three assignments of error. These assignments of error are related to: the circuit court's interpretation of W. Va.Code §§ 17–4–27 (1967) (Repl. Vol. 2013) and 17C–17–12 (1951) (Repl. Vol. 2013), the proper scope of municipal power, and whether Morgantown's WV Route 7 Heavy Truck Ordinance would cause undue disruption of the state road system. Because this case is resolved by the first issue, we do not reach the remaining two issues.

Morgantown argues that the circuit court erred by failing to recognize that W. Va.Code §§ 17–4–27 and 17C–17–12 expressly authorize the city to regulate the weight of trucks on state routes within the city. The Trucking Plaintiffs, joined by the DOH, respond by asserting that the DOH has exclusive authority and control over West Virginia state roads, which authority preempts Morgantown's ability to regulate WV Route 7. We will separately address the provisions of W. Va.Code §§ 17–4–27 and 17C–17–12.

A. W. Va.Code § 17–4–27

Because our analysis requires us to determine the precise meaning of W. Va.Code § 17–4–27 so it may be accurately applied to the facts herein presented, we must endeavor to ascertain the intent of the Legislature. See Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975) (“The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.”). In carrying out our inquiry, we are cognizant that “[a] statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.” Syl. pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951). Nevertheless, “[a] statute that is ambiguous must be construed before it can be applied.” Syl. pt. 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992).

At the outset, we recognize that the comprehensive authority of the State Commissioner of Highways (“Commissioner”) to regulate the state road system is set out in W. Va.Code § 17–4–1 (1972) (Repl. Vol. 2013), which expressly provides that “[t]he authority and control over the state roads shall be vested in the Commissioner of Highways.” See also W. Va. Const. amend. The Good Roads Amendment of 1920 (“The legislature shall make provision by law for a system of state roads and highways connecting at least the various county seats of the State, and to be under the control and supervision of such state officers and agencies as may be prescribed by law.”); Syl., in part, State ex rel. Keene v. Jordan, 192 W.Va. 131, 451 S.E.2d 432 (1994) (recognizing that, “[p]ursuant to W. Va.Code, 17–4–1 [1972] the State Commissioner of Highways has exclusive authority and control over state roads”); Herold v. Hughes,

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