WEST VIRGINIA RECORD

CHARLESTON – A Kanawha County judge says Morgantown’s ban on heavy trucks is unenforceable.

Kanawha Circuit Judge Joanna Tabit overturned the ban on Tuesday after two businesses filed a lawsuit against the city and the state Division of Highways. Morgantown City Council approved the ordinance this summer to ban trucks more than 26,000 pounds gross weight with three or more axles from going through the downtown business district. It was to begin Dec. 1.

Nuzum Trucking Co. of Shinnston and Preston Contractors Inc. of Kingwood were the companies that filed the complaint Oct. 17. The case was heard in Kanawha County because a branch of state government was named.

According to the complaint, on Sept. 2, the Morgantown City Council passed a heavy truck ordinance prohibiting trucks from operating in Morgantown's B4 business district, which prevents the plaintiffs from using state highways and truck routes that go through the district, and thus, prevents the plaintiffs from operating their businesses economically.

The plaintiffs said they particularly use W.Va. 7 to efficiently transport products around the Morgantown business district.

The complaint called the ordinance unlawful, as exclusive control of state roads belongs to the commissioner of highways, and though allegedly instated to address safety concerns, the ordinance fails to prevent the most cited traffic violators from transversing the business district.

According to the lawsuit, the ordinance was first introduced in 2005 and then reintroduced in 2013 by a group called "Safe Streets of Morgantown," but on both occasions the state highway department gave evidence that the ordinance was not within the municipality's power. The plaintiffs say the ordinance was passed anyway and constitutes municipal intrusion into intrastate and interstate commerce.

The plaintiffs were suing pursuant to state preemption and federal preemption, and the defendants are accused of violating state and federal equal protection, U.S.C. 1983, and the constitution's contract clause.

They were represented by attorneys Paul R. Cranston and James B. Shockley of Cranston & Edwards in Morgantown.

Kanawha Circuit Court case number: 14-C-1877