Memorandum
City of Lawrence
Legal Services
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TO: |
David L. Corliss, Interim City Manager
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FROM: |
Scott J. Miller, Staff Attorney
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Date: |
June 7, 2006
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RE: |
Supplemental Memorandum Addressing Citizen Concerns Regarding Ordinances 7990 & 7991 -- Overweight Truck and Commercial Vehicle Safety Regulations |
BACKGROUND
At the June 6, 2006 City Commission meeting, the consideration of ordinances 7990 & 7991 was deferred to allow staff to prepare a response to the written and oral comments regarding the ordinances presented by Steve Glass of LRM Industries. The purpose of this document is to provide that response.
DRAFTING CONSIDERATIONS
In order to place our responses to Mr. Glass’ concerns into context, it is important to understand our drafting goal in preparing the draft ordinances. Our primary emphasis was to craft an ordinance that might be viewed as beneficial to all interested parties’ respective interests. In order to accomplish this task, we believe it is important to not impose any “Lawrence only” regulations that would increase the compliance burden on local businesses or trap unwary commercial vehicle operators traveling through our town who are not familiar with our local laws. This is why the current ordinance draft contains no City licensing requirements for overweight and oversized vehicles, which would be allowable under Kansas law. Simply put, the goal was to change the venue for the prosecution of overweight and commercial vehicle regulations to municipal court, as it is our belief that municipal court prosecution is a more expedient way to handle violations of this type. Municipal court prosecution of these offenses is obviously good for the City because it makes both the initiation and follow through of the enforcement action simpler and quicker. For commercial vehicle owners or operators, because there are no new provisions in the ordinance that are not currently in effect under Kansas and Federal laws, and as municipal courts are generally looked upon more favorably than the district courts are by violators of this type of traffic regulation, the adoption of these ordinances should not, we believed, generate much in the way of controversy.
Even in the absence of these ordinances, the Lawrence Police Department has the authority to enforce identical prohibitions through Kansas law and Federal regulations. Passing the ordinances should have no effect on what is required for a commercial vehicle operator to comply with the law.
Subsequently, after our February meeting with Mr. Glass and other interested stakeholders, the overweight vehicle ordinance was amended to place additional requirements on the City’s own vehicles. Because of the perception that the City was taking improper license by exempting some of its activities from the coverage of the ordinance, even though those exemptions exist under Kansas and Federal law, the ordinance was amended to eliminate all the City’s exemptions unless the activity in question would also be exempt if a private entity was conducting the activity. This places private employers and the City of Lawrence on similar footing in regards to its responsibilities. The only exceptions retained by the City were emergency exemptions, and an exemption for the operation of its fire apparatus.
With this history in mind, each of Mr. Glass’ specific concerns will be discussed in turn.
EXEMPTION FOR GARBAGE TRUCKS AND FERTILIZER SPREADERS
Mr. Glass is correct that an exemption remains in the draft overweight vehicle ordinance presented at the June 6, 2006 City Commission meeting for fertilizer spreaders and garbage trucks. This exemption exists for any entity operating these types of vehicles, not only the City. The exemption could easily be eliminated, and Mr. Glass is correct that the elimination of the exemption would probably, over time, have a positive net impact on our pavement integrity. Steve Stewart, the City’s Central Garage Superintendent, has assured me that it is possible for the City’s garbage truck fleet to operate inside of the specified legal weight parameters.
The exemption could be eliminated or pared back in two ways. First, the exemption could be written so it does not apply to the City’s garbage trucks and fertilizer spreaders but so it does remain in existence for garbage trucks or fertilizer spreaders owned by any other party. Second, the exemption could be eliminated completely.
The complete elimination of the exemption is likely the best course of action if pavement management is the only concern. Such a course of action would, however, essentially be making the City’s regulations non-uniform, not just towards the City but also any other party that might wish to pull a fertilizer spreader or drive a garbage truck through Lawrence. Although Lawrence operates its own trash service, there is nothing prohibiting someone from driving a garbage truck through town on the way to another destination. Essentially, Lawrence would end up imposing a potential burden on private operators of these vehicle types that does not exist under Kansas law. Such an action would constitute a retreat from the idea that the ordinance should only shift the venue of prosecution without changing the substantive rights of vehicle operators.
The other option, eliminating the exemption only for the City’s vehicles, would not fall prey to this criticism. It would, however, not place the drivers of City vehicles on equal footing with similarly situated private vehicle drivers. If the Commission does not want to consider this option, but wants the City to lead the way in compliance, perhaps an administrative directive that it is the policy of the City to operate these vehicles under applicable weight limits would be appropriate. It would not subject the drivers of City vehicles to more criminal liability than similarly situated private operators, but it would potentially show the City’s commitment to this program.
Finally, it should be noted that these exemptions are only a few of the exemptions that exist in Kansas law and by extension, the ordinance. For example, Section 17-908 of the ordinance contains an exception to gross vehicle weight requirements that states the requirements:
shall not apply to truck tractor and dump semitrailer or truck trailer combination when such are used as a combination unit exclusively for the transportation of sand, salt for highway maintenance operations, gravel, slag stone, limestone, crushed stone, cinders, coal, blacktop, dirt or fill material, when such vehicles are used for transportation to a construction site, highway maintenance or construction project or other storage facility . . .
If everything were measured from the perspective of what is best for pavement management then it would undoubtedly be appropriate to eliminate all of these exceptions as well. Perhaps as has been suggested, these exemptions were the result of political influence rather than the result of research. On the other hand, maybe they were created based upon a public policy cost / benefit analysis that includes factors other than pavement management. In any event, the exemptions can be eliminated if that is the will of the Governing Body.
SECTION 17-1004(b)
Mr. Glass is correct that Section 17-1004(b) of draft ordinance 7991 contained a section of text that incorrectly reflected the language of the Kansas statute. The language has been corrected and I thank him for pointing out this error.
EXEMPTION FROM FEDERAL SAFETY REGULATIONS FOR GOVERNMENT VEHICLES
Commercial vehicles belonging to the United States, individual states, and their subdivisions are currently exempt from the application of the Federal Motor Carrier Safety Regulations, as adopted in the State of Kansas. Mr. Glass urges that the City to abandon its currently existing exemption from these regulations so that it would be on equal footing with a private employer, at least as it pertains to inspection requirements. I have drafted an alternative version of the ordinance that incorporates this suggestion. I do not see any substantial harm or impact resulting from the suggested change. In conjunction with this ordinance, or perhaps independent of its application, the Commission might urge the adoption of an administrative policy that would require the City’s vehicles to comply with the Federal regulations. Steve Stewart is at out of town training, so I am unsure at the time of this writing as to what economic impact such a policy would have on the City, if any. I will attempt to obtain the answer to that question prior to the next meeting when these ordinances are considered.
EXCESSIVE DELAYS AND POLICE RESOURCES
The City of Lawrence Traffic Unit has been actively performing commercial vehicle inspections for several years. In fact, the two members of the unit certified to perform such inspections are required to perform a number of inspections annually to maintain their certifications. Although the transportation of perishable cargo should not exempt any vehicle from inspection, the officers in question are sensitive to the economic realities of the situation, and are aware of the scenarios Mr. Glass is concerned about.
Police time and resources are precious in the City of Lawrence. The two officers who are commercial vehicle (CVSA) inspectors are assigned to the traffic unit, and their primary job duties are to enforce the traffic laws of the City of Lawrence. The Police Department has no plans to increase the number of inspectors in its employ, but feels very strongly that these officers protect the City’s infrastructure and the safety of the motoring public by enforcing these and other traffic regulations.
COST OF ENFORCEMENT
As a final note, Mr. Glass argues that the real intent of the ordinances is to increase City funds by directing violations to the Municipal Court as opposed to District Court. Although this is not the primary reason for the requested ordinance, I believe it is something that is appropriate to consider. As has been stated several times, enforcement of the commercial vehicle safety regulations is ongoing, and the City of Lawrence Police Department can start enforcing Kansas’ overweight vehicle laws at any time the funds are available to purchase a set of portable scales. Neither the Police Department nor individual police officers who enforce these laws obtain economic benefit from their efforts. Enforcement of these laws, or any other criminal law, for the primary purpose of revenue generation would be wrong. It is undisputed, though, that overweight trucks contribute significantly to pavement failure; that replacing failed pavement costs significant amounts of money; that the police officers who perform commercial vehicle enforcement are an additional cost of the program; and that City tax money is the primary source of revenue that pays for all of these costs. It seems appropriate for the City to recoup a small portion of the cost of infrastructure damage and the enforcement costs spent to detect violators through fine revenue – in essence a fee for use or over-use. I view this situation as more advantageous than the current scenario, where the enforcement is ongoing but any revenue generated by the enforcement effort is flowing to a different governmental agency not directly financing those efforts.
On the other hand, I believe we should reject the notion that the comparative value of a criminal law is determined by comparing the cost of enforcement to the amount of income generated by its enforcement. If that were the standard for measuring the worth of a prohibitory law, there would be very few such laws that could survive scrutiny.
CONCLUSION
If the Commission decides that ordinance on these two subjects are appropriate, the questions the Commission must answer are:
With an answer to these questions, I will be able to quickly tailor the language of the ordinances to reflect these policy choices.
Along with this memorandum, I have included three draft ordinances. Draft ordinance 7990 is identical to the one considered at the last City Commission meeting. There are two draft versions of ordinance 7991. One version is identical to the version presented at the last City Commission meeting, except the error in Section 17-1004(b) has been corrected. The alternative version also corrects that error, but also removes the City of Lawrence’s inspection exemption.
Please let me know how I can be of further service.