Town of Delafield v. Cent. Transp. Kriewaldt

Decision Date05 June 2019
Docket NumberAppeal No. 2017AP2525
Citation388 Wis.2d 179,2019 WI App 35,932 N.W.2d 423
Parties TOWN OF DELAFIELD, Plaintiff-Appellant, v. CENTRAL TRANSPORT KRIEWALDT, Defendant-Respondent.
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Kimberly M. Kershek and E. Joseph Kershek of Kershek Law Offices, Greenfield.

On behalf of the defendant-respondent, the cause was submitted on the brief of Michael K. Roberts of Scopelitis, Garvin, Light, Hanson & Feary, P.C., Milwaukee.

A nonparty brief was filed by Carol B. Nawrocki of Wisconsin Towns Association, Shawano.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.


¶1 Town of Delafield appeals from the circuit court’s dismissal of a citation issued to Central Transport Kriewaldt for operating a semi-truck on a Town road in excess of the Town’s posted, seasonal weight restriction.

Although the circuit court acknowledged there was no dispute the truck exceeded the weight limit, the court dismissed the citation on the basis that the restriction was preempted by federal law. We reverse and remand.


¶2 On Friday, March 4, 2016, the Town posted road signs identifying its seasonal weight restriction prohibiting vehicles over six tons from driving on designated roads. Three days later, a Central Transport driver delivering art supplies to a Town resident drove a semi-truck in excess of six tons on one of the designated roads. The truck got stuck in a ditch, blocking traffic, and was eventually towed out by the Town’s highway department. A sheriff’s deputy issued Central Transport a citation for operating a vehicle on the road in excess of the posted weight limit, in violation of TOWN OF DELAFIELD , WIS. , ORDINANCE § 7.01 (2010), adopting WIS. STAT. § 348.17(1) (2017-18).1

¶3 Following a court trial, the circuit court granted Central Transport’s motion to dismiss the citation on the basis that the seasonal weight restriction did not allow Central Transport reasonable access to its Town customer and thus was preempted by federal law, specifically 49 U.S.C. § 31114(a) (2018) of the Surface Transportation Assistance Act (STAA). The Town appeals.


¶4 The circuit court granted Central Transport’s motion to dismiss the citation in light of the facts the court found following the trial. When facts are derived from a trial to the court, we will not disturb the court’s findings unless they are clearly erroneous. See WIS. STAT. § 805.17(2). Whether federal preemption applies, however, is a question of federal law we review de novo. Partenfelder v. Rohde , 2014 WI 80, ¶25, 356 Wis. 2d 492, 850 N.W.2d 896. Preemption occurs in three instances: (1) "when Congress expressly sets forth a law’s preemptive effect," (2) "when there is a reasonable inference that the subject matter of the law in question is in a field in which Congress intended federal law to have exclusive application," and (3) "when state law conflicts with federal law." Id. , ¶26. Here, the parties focus on the third instance—whether WIS. STAT. § 348.17(1) and TOWN OF DELAFIELD , WIS. , ORDINANCE § 7.01, as applied, conflict with federal law—so we will as well. The interpretation and application of federal law to a set of facts is a question of law we review independently. City of Weyauwega v. Wisconsin Cent., Ltd. , 2018 WI App 65, ¶¶10-11, 384 Wis. 2d 382, 919 N.W.2d 609. ¶5 Central Transport does not dispute that it violated the Town ordinance, which adopted WIS. STAT. § 348.17(1). Section 348.17(1) provides:

No person ... shall operate a vehicle in violation of special weight limitations imposed by state or local authorities on particular highways, highway structures or portions of highways when signs have been erected as required by [ WIS. STAT. §] 349.16(2) giving notice of such weight limitations, except when the vehicle is being operated under a permit expressly authorizing such weight limitations to be exceeded....

Central Transport states that "[o]n its face" § 348.17(1) "does not contradict" the STAA, specifically 49 U.S.C. § 31114(a), or the related Federal Highway Administration (FHWA) regulation 23 C.F.R. § 658.19 (2018). It asserts, however, that a conflict arose in this case because the federal provisions "protect Central Transport’s reasonable access to a terminal/delivery address," but the Town’s application of § 348.17(1) through its weight restriction "denied Central Transport all access from the interstate to its terminal."2 (Emphasis added.) The record indicates otherwise.

¶6 Section 31114(a) of Title 49 of the United States Code provides: "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 1 of this chapter reasonable access " between the Interstate and a terminal. (Emphasis added.) Similarly, § 658.19 of Title 23 of the Code of Federal Regulations provides in relevant part: "No State may enact or enforce any law denying reasonable access to vehicles with dimensions authorized by the STAA between the [Interstate] and terminals." (Emphasis added.) Congress did not define "reasonable access." As one court has observed, "[d]espite their awareness that the resulting ‘nonuniformity of access has become a considerable burden for trucking companies,’ Congress did nothing to change the reasonable access provisions of the law to provide for a uniform, national definition of reasonable access." Consolidated Freightways Corp. v. Larson , 647 F. Supp. 1479, 1483-84 (M.D. Pa. 1986) (citation omitted). We reverse and remand because we conclude that the manner in which the Town applied WIS. STAT. § 348.17(1) and Town ordinance § 7.01 afforded Central Transport "reasonable access" and thus is not preempted by the STAA or the FHWA regulation.

¶7 At the trial on Central Transport’s citation, the Town’s highway superintendent testified that the six-ton weight limit is only in place on certain Town roads "for a short amount of time" during the "spring thaw," in order to limit heavy vehicles on the roads when the roads are "very vulnerable" to damage from the weight "because all the ground is not thawed so the roads are soft." The superintendent personally determines when the weight restriction should be posted and later removed, which determinations are based upon his direct examination of the roads, including "movement" he observes and "frost coming out of the grounds and cracks." Once the roads are settled, he "pull[s] the weight limits." He testified that he utilized this process in March 2016, the time relevant to the citation issued to Central Transport, and that at that time, the weight restriction was only posted and in effect between March 4 and March 11.

¶8 The superintendent acknowledged that the seasonal weight restriction would not necessarily be in effect during the same dates each year, but stated that it is common for companies to contact him around the time the restriction goes into effect. When asked what a company is supposed to do if it needs to make a delivery with a truck exceeding six tons during the time the weight restriction is in place, the superintendent responded:

What they typically do at the Town they call in and the driver or the company comes into my office and I issue them ... a temporary permit to drive on the Town road and I give them a route that they have to travel so they're not traveling on unnecessary roads ... to get to ... where they have to go.

He confirmed that to the best of his knowledge, in the twenty-one years he had been employed with the Town, fifteen as superintendent, the Town had never denied access to anyone who needed an exception to the seasonal weight restriction.

¶9 The superintendent testified that in addition to the posted weight-restriction signs along designated roads, the weight restriction is also noted on the Town website, which provides his phone number and informs the reader to contact him if an exception to the restriction is needed. He confirmed that the restriction was posted on the website in March 2016, including "the language about obtaining a permit" and contacting him.

¶10 The sheriff’s deputy who cited the Central Transport driver also testified to his awareness of the Town policy of issuing permits to allow exceptions to the weight restriction and indicated that companies routinely contact the sheriff’s department to inquire about such local restrictions. Central Transport called no witnesses at trial.

¶11 No evidence was presented indicating any carrier had ever been precluded from reaching its destination within the Town based upon how the Town executes the seasonal weight restriction and permit exception. Indeed, the testimony of the superintendent strongly suggests that no carrier has ever been denied access between the Interstate and a destination within the Town. As the circuit court found, the Town’s weight restriction is in place for an "undetermined" but "short" period of time each year during the "spring thaw." In this case, the restriction was in place for one week, and the evidence indicates that even during that week, Central Transport could have secured a permit that would have allowed it to travel on weight-restricted roads with, at most, minimal inconvenience, i.e., having to take a specific, Town-designated route to its customer in order to minimize road damage.3 Cf. Aux Sable Liquid Prods. v. Murphy , 526 F.3d 1028, 1036 (7th Cir. 2008) (expressing that the "broad language" of "reasonable access" reflects "a recognition on Congress’s part that the manner and degree of access to and from the Interstate ... will vary across the country depending on factors such as whether the Interstate is cutting across rural or metro areas, traffic density on the road, and other considerations " and referring approvingly to the New Hampshire Motor Transport Association v. Town of Plaistow , 67 F.3d 326, 330 (1st Cir. 1995), c...

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3 cases
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