Background
Dennis J. Murray was cited under a City of Fond du Lac ordinance barring certain vehicles, including commercial walk-in trucks, from being parked or stored in residential districts unless they are servicing the premises or qualify as tow trucks. The municipal court found Murray guilty after a trial, and the Fond du Lac County Circuit Court affirmed on review of the municipal-court record.
Murray kept two commercial walk-in trucks in the driveway of his residence. He contended that one was effectively a tow truck because he used it to travel to disabled vehicles and perform roadside repairs, and that the other serviced his property in connection with building permits and other permitted activity. He also challenged the municipal forfeiture as constitutionally excessive.
The Court’s Holding
The court affirmed the finding that Murray violated the ordinance. A tow truck, the court held, is a vehicle equipped and used to tow other vehicles; transporting a mechanic to roadside repair calls does not make an otherwise unequipped commercial walk-in truck a tow truck. The code enforcer’s testimony and admitted photographs supported the finding that Murray’s vehicles were commercial walk-in trucks, not tow trucks.
The court also held that the servicing-premises exception did not permit Murray to use his residence as a permanent parking or storage location for the trucks. The exception allows a truck to remain for the time needed to service the property, including overnight if necessary, but the evidence supported the conclusion that the trucks were permanently stationed at the residence rather than there to perform such service. The court reversed the forfeiture, however, because the City did not answer Murray’s argument that it was grossly disproportionate under the applicable excessive-fines test. It remanded for imposition of an appropriate forfeiture and an amended judgment.
Key Takeaways
- A “tow truck” must be equipped and used to tow vehicles; roadside repair work alone is insufficient.
- A servicing-premises exception does not authorize permanent residential storage of otherwise prohibited commercial trucks.
- When a municipality does not rebut an excessive-fines proportionality argument, the court may treat that argument as conceded and remand the forfeiture.
Why It Matters
The decision gives municipalities and property owners a plain-language boundary for residential vehicle restrictions: temporary presence to service the premises is permitted, but using a residence as a long-term base for prohibited commercial trucks is not.
It also underscores that a civil forfeiture imposed through an ordinance citation may require proportionality review when the municipality seeks a punitive payment rather than nuisance abatement.