New Hampshire Motor Transport Ass'n v. Town of Plaistow, 94-2095

• Decision Date: 01 May 1995
• Docket Number: No. 94-2095,94-2095
• Citation: 67 F.3d 326
• Parties: NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, et al., Plaintiffs, Appellants, v. TOWN OF PLAISTOW, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 326

67 F.3d 326

NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, et al., Plaintiffs, Appellants, v. TOWN OF PLAISTOW, Defendant, Appellee.

No. 94-2095.

United States Court of Appeals, First Circuit.

Heard May 1, 1995.

Decided Sept. 20, 1995.

Order on Petition for Rehearing

Oct. 25, 1995.

Mark I. Zarrow with whom Lian, Zarrow, Eynon & Shea, Worcester, MA, was on briefs, for appellants.

Melinda S. Gehris with whom Marjorie E. Lanier and Devine, Millimet & Branch, P.A., Manchester, NH, were on brief, for appellee.

Before CYR, Circuit Judge, ALDRICH, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

This appeal presents a challenge to a town zoning ordinance and cease and desist order that limit night-time access to and from a local trucking terminal. Appellants are the terminal owner, the terminal operator, various interstate motor carriers that regularly use the terminal, and an association representing New Hampshire truckers. Appellee is the Town of Plaistow, New Hampshire, ("the town"), which adopted the restrictions at issue. The terminal is located on a site partly in Plaistow and partly in Newton, New Hampshire.

The trucking terminal began operation in September 1988. It serves as a regional hub for various trucking companies serving the New England area. Line haulers from around the country drop off freight to be delivered in New England and pick up freight whose destination lies outside New England. Atlas Motor Express, Inc. ("Atlas"), the operator of the terminal, maintains a fleet of trucks and provides short haul service within the New England area. The terminal operates 24 hours a day, loading and unloading trailers.

Most trucks that use the Plaistow/Newton terminal reach it from Interstate 495, a federal highway that runs through Massachusetts and near the New Hampshire border. From Interstate 495, trucks travel about 5 miles on Route 125 to Kingston Road (both are New Hampshire state highways) and then about half a mile to Garland Way, the terminal's private access road. Trucks must travel roughly 2000 feet along Garland Way, the first portion of which passes through the Plaistow residential zone. The terminal's facilities are all located in Newton in an industrial zone bordering on Plaistow.

Shortly after the terminal opened, numerous residents from Plaistow who live along Kingston Road near Garland Way complained about late night truck traffic to and from the terminal. The town subsequently served a cease and desist order on Atlas and the terminal owner, alleging a violation of a Town of Plaistow zoning ordinance that reads in pertinent part:

Any uses that may be obnoxious or injurious by reason of the production or emission of odors, dust, smoke, refuse matter, fumes, noise, vibration or other similar conditions, or that are dangerous to the comfort, peace, enjoyment, health or safety of the community, whether it contributes to its disturbance or annoyances are prohibited in all districts.

The cease and desist order stated that "heavy commercial trucking arriving at and leaving [the] site is emitting odors, smoke, fumes, noise and vibration around the clock." Despite the order, late night traffic to and from the terminal continued.

The town then brought an action in New Hampshire Superior Court seeking an injunction against the terminal and an order imposing reasonable hours of operation. The state court entered a preliminary injunction on February 28, 1989, placing a curfew on night-time access to and from the terminal. After an evidentiary hearing, the court entered a permanent injunction on July 7, 1989, limiting the terminal's night-time traffic as follows:

6:00 a.m. to 9:00 p.m.: No restrictions.

9:00 p.m. to 11:00 p.m.: Two trucks may arrive or depart.

11:00 p.m. to 5:00 a.m.: No trucks may arrive or depart.

5:00 a.m. to 6:00 a.m.: Three trucks may arrive or depart.

The New Hampshire Supreme Court denied the terminal's request for appellate review.

On March 26, 1993, appellants filed a federal suit against the town, alleging that the enforcement of the Plaistow zoning ordinance was preempted by various federal statutes and by the Commerce Clause. U.S. Const., Art. I, Sec. 8. On October 25, 1993, the district court granted the town's motion to dismiss, for failure to state a claim, the appellants' claim that the injunction was preempted by the Noise Control Act of 1972, 42 U.S.C. Sec. 4901 et seq. New Hampshire Motor Transport Ass'n v. Town of Plaistow, 836 F.Supp. 59 (D.N.H.1993).

A three-day bench trial followed in August 1994. Thereafter, the district court ruled that the injunction limiting night-time access to and from the trucking terminal was not preempted by two other federal statutes invoked by the appellants--the Surface Transportation Assistance Act of 1982, 49 U.S.C. Sec. 31101 et seq., and the Hazardous Materials Transportation Uniform Safety Act of 1990, 49 U.S.C. Sec. 5101 et seq.--and did not violate the Commerce Clause. This appeal followed. We agree with the district court's determinations and affirm.

1. The town urges that the district court judgment be upheld, without reaching the merits, on the ground that the state court enforcement action is res judicata as to all of the appellants. The reach of a prior state court judgment is determined by state law. Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). Under New Hampshire law, we think that the prior judgment does not foreclose the present suit, at least by appellants who were not parties to the state court action.

The only defendants in the state court action were the terminal owner and its operator. Non-parties can be bound where they are in privity with parties to prior litigation, and the privity concept is fairly elastic under New Hampshire law, as elsewhere. But normally something more is required for privity between the prior and present litigants than merely a common interest in the outcome. Daigle v. City of Portsmouth, 129 N.H. 561, 534 A.2d 689, 694 (1987). See also Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 756-63 (1st Cir.1994) (interpreting federal law).

Here, there is no indication that the appellant interstate carriers even knew of, let alone controlled, the prior litigation. Although the town points out that the same law firm represents all of the appellants, the interstate carriers are not claimed to have controlled or managed the original state court litigation from behind the scenes. Cf. Montana v. United States, 440 U.S. 147, 154, 99 S.Ct. 970, 974, 59 L.Ed.2d 210 (1979); General Foods v. Massachusetts Dept. of Pub. Health, 648 F.2d 784, 789 (1st Cir.1981). It is also plain that the interstate carriers who use the terminal on a regular basis have a real and distinct interest in nullifying the town's restriction.

Finally, we note that with the exception of the Commerce Clause issue, the federal issues were apparently not litigated in the state court. This would not necessarily defeat a valid claim of res judicata, see, e.g., Stuhlreyer v. Armco, Inc., 12 F.3d 75, 77 (6th Cir.1993), but it encourages us to resolve any doubts in favor of allowing the carriers to sue. Since the merits must be reached on the appeals by the interstate carriers, we need not consider the stronger claim of foreclosure against the owner and operator of the terminal.

2. Turning to the merits, our review of the district court's preemption analyses is plenary, Ellenwood v. Exxon Shipping Co., 984 F.2d 1270, 1273 n. 4 (1st Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2987, 125 L.Ed.2d 682 (1993), and we address in turn each of the statutes relied on by appellants as a separate ground for preemption. Among these, the most important is the Surface Transportation Assistance Act of 1982 ("the Surface Act"), as amended by the Tandem Truck Safety Act of 1984 ("the Tandem Act"), now codified at 49 U.S.C. Sec. 31111 et seq. These statutes together establish uniform, national standards for the maximum size and weight of trucks and trailers used in interstate commerce.

As amended, the Surface Act forbids the states from enacting or enforcing laws that prohibit trucks and trailers of approved length and weight from travelling on the national network, i.e., the system of interstate highways and other federally-funded primary routes designated by the Secretary of Transportation. 49 U.S.C. Sec. 31111(e); 23 C.F.R. Sec. 658.5. The Surface Act also prohibits states from denying approved trucks and trailers "reasonable access" between the national network and "terminals." 49 U.S.C. Sec. 31114. This provision, which is at the heart of this case, reads as follows:

Sec. 31114. Access to the Interstate System

(a) Prohibition on denying access. A State may not enact or enforce a law denying to a commercial motor vehicle subject to this subchapter or subchapter I of this chapter reasonable access between--

(1) the Dwight D. Eisenhower System of Interstate and Defense Highways (except a segment exempted under section 31111(f) or 31113(e) of this title) and other qualifying Federal-aid Primary System highways designated by the Secretary of Transportation [i.e., the national network]; and

(2) terminals, facilities for food, fuel, repairs, and rest, and points of loading and unloading for household good carriers, motor carriers of passengers, or any truck tractor-semitrailer combination in which the semitrailer has a length of not more than 28.5 feet and that generally operates as part of a vehicle combination described in section 31111(c) of this title.

(b) Exception.--This section does not prevent a State or local government from imposing reasonable restrictions, based on safety considerations, on a truck tractor-semitrailer combination in which the semitrailer has a length of not more than 28.5 feet and that generally operates as part of a vehicle combination described in section 31111(c) of this title.

The district court ruled that the local...