COURT OF APPEALS DECISION DATED AND FILED October 30, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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City of
Plaintiff-Respondent, v. Frank Silha & Sons, Inc.,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 BRIDGE, J.[1] Frank Silha & Sons, Inc. appeals a
judgment of the circuit court granting summary judgment in favor of the City of
BACKGROUND
¶2 Silha is the owner and operator of a limestone quarry on
¶3 Janesville City Ordinances impose weight restrictions on vehicles traveling within the city’s limits. Janesville General Ordinance § 12.48.050 prohibits vehicles with a gross vehicle weight rating in excess of 16,000 pounds from driving on any street or highway except state or federal truck highways while making trips through Janesville.
¶4 In addition, Janesville General Ordinance § 12.48.020 prohibits vehicles with a gross weight rating in excess of 16,000 pounds from operating on any street or highway in Janesville “unless such street or highway is designated as a through arterial street … except as provided in subsections A, B, and C of this section.” Relevant to this appeal are subsections A and B.
¶5 Subsection A provides that persons operating vehicles with gross weight ratings in excess of 16,000 pounds but less than 30,000 pounds “may make pickups or deliveries at locations not on a through arterial street, provided that such operated vehicle leaves from and returns to a through arterial street at a point nearest to his immediate destination.” Janesville General Ordinance § 12.48.020A. Subsection B provides that persons operating vehicles with gross weight ratings in excess of 30,000 pounds are subject to the requirements of subsection A and are also limited to making “only one delivery or pickup on each deviation” which is defined as “an interval in which a vehicle leaves and returns to a through arterial street by the shortest possible route.” Section 12.48.020B.
¶6 In June 2007,
DISCUSSION
¶7 We
review appeals of summary judgments de novo, using the same methodology as the
circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶6, 306
¶8 Silha
first contends that
¶9 JANESVILLE
GENERAL ORDINANCE § 12.48.050 prohibits vehicles with a weight rating
exceeding 16,000 pounds from operating on any street except federal or state
truck highways “when making trips through [Janesville].” (Emphasis
added). Silha first argues that
¶10 The City counters that Silha’s argument is raised for the first
time on appeal and, therefore, we should not address it. Generally, arguments raised for the first time
on appeal are deemed waived.
¶11 At
the hearing on the City’s motion for summary judgment, counsel for Silha
stated, “[The City] contend[s] that this trip was a through—trip through the
City of
¶12 Silha next argues that Janesville General Ordinance § 12.48.020, which it claims must be
read in conjunction with Janesville
General Ordinance § 12.48.050, authorizes Silha’s traversing of
¶13 Finally,
Silha argues that its trucks are authorized to travel on Tripp Road until the
trucks reach Afton Road under Janesville
General Ordinance § 12.48.020B, which provides that deviation from the
through arterial street should be through the shortest possible route. Silha contends that
¶14 Janesville
General Ordinance § 12.48.020B
provides that trucks with a gross vehicle weight in excess of 30,000 pounds are
subject to the requirements in subsection A and, in addition, “shall make only
one delivery or pickup on each deviation,” which is defined as “an interval in
which a vehicle leaves and returns to a through arterial street by the shortest
possible route.” Read together,
subsections A and B authorize the use of roads in Janesville, which are not
designated as federal or state truck highways, by trucks with a gross vehicle
weight in excess of 30,000 pounds only if those trucks leave from and return to
a through arterial street, which are specified in Janesville City Ordinance § 10.16.010. Utilization of the shortest route to make
pickup and deliveries is relevant under § 12.48.020 only if the thresholds
of subsections A and B have been met. In
this case, they have not.
¶15 For
the foregoing reasons, we affirm the judgment of the circuit court entering
summary judgment in favor of
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(b) (2005-06). All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] All references to the Janesville General Ordinances are to the April 2006 version unless otherwise noted.
[3] Wisconsin Stat. § 340.01(19r) defines “gross vehicle weight rating” as “the value specified by the vehicle manufacturer, including secondary or final stage manufacturer, as the loaded weight of the vehicle.” The police report describing the ordinance violation states that “[t]he gross weight of these trucks using Tripp R[oad] is 73000 pounds.” Silha does not contend that the gross weight of its trucks differs from this figure.
[4] Silha
argues in his reply brief that Schwittay v.
[5] Silha
also argues that because