New Hampshire Motor Transport v. Town of Plaistow

Decision Date25 October 1993
Docket NumberNo. c-93-149-L.,c-93-149-L.
Citation836 F. Supp. 59
CourtU.S. District Court — District of New Hampshire


Daniel T. Chabot, William J. Barron, LaFlamme, Migliori, Barron & Chabot, Haverhill, MA, for plaintiff.

Andrew D. Dunn, Devine, Millimet & Branch, PA, Manchester, NH, Sumner F. Kalman, Sumner F. Kalman, P.C., Plaistow, NH, for defendant Town of Plaistow.


LOUGHLIN, Senior District Judge.

Procedural History

On March 26, 1993, plaintiffs, New Hampshire Motor Transport Association, et al. ("NHMTA"), filed a complaint against the defendant, the Town of Plaistow, New Hampshire (Plaistow). NHMTA and various interested parties allege that their federal constitutional rights have and continue to be violated by enforcement of a local ordinance which, as a result of a New Hampshire Superior Court permanent injunction, limits the access to its Newton, N.H. terminal during certain delineated time periods. Specifically, NHMTA alleges that Plaistow Zoning Ordinance § 1.4 directly violates 49 U.S.C.App. § 2301 et seq., entitled the Surface Transportation Assistance Act (count I); 49 U.S.C.App. § 1801 et seq., entitled the Hazardous Materials Transportation Act (count II); 42 U.S.C. § 4901 et seq., entitled the Federal Noise Control Act (count III); and the Commerce Clause of the United States Constitution (count IV). As a result of these alleged violations, NHMTA argues that § 1.4 is preempted pursuant to the Supremacy Clause of the United States Constitution and is therefore unenforceable as applied to its operations (count V). In NHMTA's complaint, declaratory relief and damages are sought.

On April 15, 1993, Plaistow answered NHMTA's complaint and specifically asserted that the principles of collateral estoppel, res judicata, lack of standing, and failure to state a cause of action with regard to the preemption claims entitle it to a dismissal. Plaistow then filed a Motion to Dismiss on August 25, 1993 with accompanying memorandum alleging only that, under Fed.R.Civ. Pro. 12(b)(6), the preemption claims of NHMTA should be dismissed for failure to state a claim upon which relief can be granted.

NHMTA filed its Objection to Defendant's Motion to Dismiss with accompanying memorandum on September 7, 1993. Plaistow followed this up with a Reply to Plaintiff's Objection to the Defendant's Motion to Dismiss filed on September 14, 1993. The Court will now address only those issues raised in the Motion to Dismiss and corresponding pleadings leaving other issues not asserted in such motion to be decided at trial.

Factual Background

In 1985, Arnold Pevna, as trustee of Olympiad Realty Trust ("Olympiad"), entered into an agreement to purchase a certain parcel of land located partially in Newton, N.H. and partially in Plaistow, N.H. Olympiad's plans were to build a trucking terminal to be located entirely in Newton with access via a private and public way each located in Plaistow. In 1986, Olympiad contacted the Plaistow Planning Board inquiring into the necessity of site plan approval over the project pursuant to NH RSA 674:43 and NH RSA 674:4. In 1987, the Planning Board allegedly ruled that no public hearing was required for site plan approval since the terminal was to be in Newton with access through a private drive in Plaistow. Plaistow argues that any decision made by the Planning Board was based on false representations by Olympiad regarding the nature and hours of operation of the terminal.

Olympiad proceeded to acquire the land and construct the terminal at a cost in excess of $1,000,000.00. Olympiad then leased the terminal to Atlas Motor Express, Inc. ("Atlas"), which began operations at the terminal in 1988. Atlas' ordinary business practices require that various interstate motor carriers traveling throughout the United States utilize its Newton, N.H. terminal. The terminal is located less than one mile from New Hampshire Route 125 and Interstate 495, each of which is part of the Federal Highway System.

On October 7, 1988, Plaistow served upon Atlas and Olympiad a notice to cease and desist its operations which were alleged to be in violation of Plaistow Zoning Ordinance § 1.4. In 1989, the Rockingham County Superior Court issued a permanent injunction against Atlas and Olympiad enforcing ordinance § 1.4 by limiting the hours of operation of the terminal to the following:

Effective until March 20, 1993:
(a) 4:45 a.m. to 6:00 a.m. — five tractor trailer units may enter or leave;
(b) 6:00 a.m. to 9:00 p.m. — unrestricted;
(c) 9:00 p.m. to 11:00 p.m. — three tractor trailer units may enter or leave;
(d) 11:00 p.m. to 4:45 a.m. — no tractor trailer units may enter or leave.
Effective March 20, 1993:
(a) 5:00 a.m. to 6:00 a.m. — three tractor trailer units may enter or leave;
(b) 6:00 a.m. to 9:00 p.m. — unrestricted;
(c) 9:00 p.m. to 11:00 p.m. two tractor trailer units may enter or leave;
(d) 11:00 p.m. to 5:00 a.m. no tractor trailer units may enter or leave.

Olympiad and Atlas have caused a gate to be erected to prevent ingress and egress at prohibited times in an attempt to regulate compliance with the permanent injunction. The plaintiffs allege that nighttime operations are essential to their operations and that they are at a disadvantaged position in relation to their competitors who operate without similar restrictions. On the other hand, neighbors have periodically complained, and Plaistow strongly believes it has a right to enforce a local zoning or nuisance ordinance to protect these interests and that such an ordinance is not preempted by federal law.

I. Fed.R.Civ.P. 12(b)(6)

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) is one of limited inquiry, focusing not on "whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Accordingly, the court must take the factual averments contained in the complaint as true, "indulging every reasonable inference helpful to the plaintiff's cause." Garita Hotel Ltd. Partnership v. Ponce Federal Bank, F.S.B., 958 F.2d 15, 17 (1st Cir.1992); see also Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989). In the end, the court may grant a motion to dismiss under Rule 12(b)(6) "`only if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory.'" Garita, 958 F.2d at 17 (quoting Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990)).

II. Federal Preemption

In 1824, the United States Supreme Court, analyzing the Supremacy Clause,1 declared that state laws which "interfere with, or are contrary to, the laws of Congress, made in pursuance of the constitution" are preempted and therefore invalid. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211, 6 L.Ed. 23 (1824). The First Circuit Court of Appeals has recently stated that "this verity remains firmly embedded in our modern jurisprudence." Greenwood Trust Co. v. Massachusetts, 971 F.2d 818, 822 (1st Cir.1992) (citing Wisconsin Pub. Intervenor v. Mortier, ___ U.S. ___, ___, 111 S.Ct. 2476, 2481, 115 L.Ed.2d 532 (1991)), cert. denied ___ U.S. ___, 113 S.Ct. 974, 122 L.Ed.2d 129 (1993).

The Supreme Court draws a distinction between express and implied preemption. Id. "Express preemption occurs `when Congress has "unmistakably ... ordained" that its enactments alone are to regulate a subject, and state laws regulating that subject must fall.'" Id. (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977) (citation omitted)). When a court considers an issue of express preemption, "the only remaining question is whether a particular state statute intrudes into the federal pale." Id. (citing Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299, 108 S.Ct. 1145, 1150, 99 L.Ed.2d 316 (1988); Cable Television Ass'n v. Finneran, 954 F.2d 91, 98 (2d Cir.1992)).

In contrast, "implied preemption comes in a wide variety of sizes and shapes." A court need not consider the various forms of implied preemption, however, when it is clear that the principles of express preemption apply. See King v. Collagen Corp., 983 F.2d 1130 (1st Cir.1993) (express preemption provisions foreclose inquiry into implied preemption), cert. denied ___ U.S. ___, 114 S.Ct. 84, 126 L.Ed.2d 52 (1993). In any event, any preemption analysis begins with the question of whether Congress intended federal law to preempt state law. Id. "To discern Congress' intent, we examine the explicit statutory language and the structure and purpose of the statute." Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137-38, 111 S.Ct. 478, 482, 112 L.Ed.2d 474 (1990) (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909, 85 L.Ed.2d 206 (1985)) (internal citations omitted). Next, a preemption analysis must recognize that "the historic police powers of the States are not to be superseded by a federal act unless that was the clear and manifest purpose of Congress." Id. (citation omitted). Courts must further recognize that "the authority to displace a sovereign state's law is `an extraordinary power.... that we must assume Congress does not exercise lightly.'" Id. (quoting Gregory v. Ashcroft, ___ U.S. ___, ___, 111 S.Ct. 2395, 2400, 115 L.Ed.2d 410 (1991)). "Even federal statutes that contain express preemption clauses must be viewed through the prism of this assumption." Id. (citing Cipollone v. Liggett Group, Inc., ___ U.S. ___, ___ - ___, 112 S.Ct. 2608, 2615-19, 120 L.Ed.2d 407 (1992) (plurality opinion), ___ U.S. at ___, 112 S.Ct. at 2625 (Blackmun, J., concurring in part and dissenting in part)). With that overview of preemption law, the Court will now directly address the issue of preemption of § 1.4 by the federal statutes set forth by NHMTA.

A. Preemption by the...

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