Sedona Mayor Scott Jablow proposed a backdoor ban on off-highway vehicles at the Sedona City Council’s April 11 meeting.
Jablow gave the council a presentation featuring warnings compiled from the user manuals of multiple OHV manufacturers that their vehicles are not intended for use on paved roads and should not be used on such roads.
“When we met with the Polaris people, they were very clear that they do not support their vehicles to be driven on highways,” Jablow claimed.
Jablow also quoted a June 3, 2022, notice from the National Highway Transportation Safety Administration stating that there are no OHV tires compliant with federal motor vehicle safety standards and that OHV tires cannot be marked as DOT-compliant.
Jablow proposed that the city adopt an ordinance using these elements as reasons to restrict OHV operation in Sedona.
City Attorney Kurt Christianson said the proposed language “would include both prohibitions on driving vehicles defined to include OHVs, UTVs, ATVs, driving them on public roads when the manufacturer states they should not be driven on public roads, and/or with tires that are not DOT-approved.”
“It wouldn’t be a ban, it would just be a requirement that they have street-legal tires,” Christianson explained.
“Are there approved tires on the market for these vehicles?” Councilwoman Jessica Williamson clarified.
“No,” Jablow said.
“Well, that is critical, isn’t it? Sounds good to me,” Williamson said.
Christianson said that the ordinance would be “an exercise of the city’s police power.”
Arizona Revised Statutes §28-626(B)3 empowers cities to adopt ordinances “relating to the control and movement of traffic.” Conversely, ARS §28-627(A) and §28-1106 provide that a “reasonable exercise” of police power by local authorities to restrict the use of highways is warranted only if the highway’s condition has deteriorated, if the vehicles in question are trucks or commercial vehicles or if the director of the Arizona Department of Transportation has granted the local authority the ability to restrict vehicles based on weight. OHVs are not mentioned.
Limiting Numbers
Council members and Christianson explicitly stated that the ordinance is intended to restrict OHV operations in Sedona.
“This would address certain issues by limiting the number of vehicles,” Councilwoman Kathy Kinsella said, while Councilman Brian Fultz spoke of the need for an environmental assessment to achieve “a reduction in the number of vehicles on public land.”
“We talked about banning them for health and environmental reasons and that we needed that nexus in order to keep them off the roadway,” Williamson commented in reference to previous discussions.
“The issue is capping or limiting the number of OHVs,” Christianson said when summarizing the ordinance’s purpose.
No Data
“As an engineer, I don’t see tire failure as being a health and safety issue,” Councilman Pete Furman said. “I don’t see that we have the data that tire failure is a health and safety issue.”
Furman said he wanted to know how rollovers are connected to tire types and noted that such an ordinance would leave the city at risk of becoming involved in litigation.
“We don’t need the accident data,” Jablow said. “Just ’cause we haven’t had an accident in the city limits that I know of most recently doesn’t mean that they’re still safe.”
“I know a little bit about tire design, tire testing from my background,” Furman said. “It’s a speed-related issue. I’m certain also if you go through your car owner manual, there’s things in there that you don’t know that you’re not supposed to do with a car that we do with cars every day.”
A Rough Draft
The city released a draft version of the proposed ordinance on April 28.
As Christianson and Jablow had proposed, the ordinance would amend the Sedona City Code to prohibit operation of any motor vehicle on a “paved way” if the vehicle “is equipped in any manner in violation of state or federal motor vehicle standards” or “is not approved by the manufacturer to be operated on a highway.”
The second paragraph of the draft claimed that “every year tire failure causes approximately 11,000 vehicle crashes and 200 deaths nationwide.” These figures are for passenger cars.
The Consumer Federation of America, a nonprofit with the stated purpose of “supporting strong state and federal legislation and rules opposing efforts to increase ATV road access,” reported a total of 419 OHV fatalities nationwide in 2022, with 88% of fatal events occurring when helmets were not being worn, when helmet usage was reported.
“This chapter applies to all highways within the Sedona City limits,” the ordinance stated. The ordinance also defines “motor vehicle” as “a self-propelled vehicle.” This would prohibit the operation of electric bicycles, electric miniature or standup scooters, tractors and dirt bikes with non-DOT-approved tires as well as OHVs within Sedona. City-owned vehicles, however, would be exempt.
The ordinance would further amend title 6 of the Sedona City Code — the animal control section — to give the city the authority to impound OHVs.
While the ordinance would require Sedona police to issue a warning for a first violation, its language also provides that if a cited owner of an OHV — or other vehicle — does not submit proof of correction of illegal equipment to the city within five days, the city will charge the owner with a civil offense carrying a fine of up to $500.
As Jablow said, DOT-approved OHV tires do not exist, making it impossible for OHV owners to correct a tirerelated violation.
Each day a violation remains unabated will constitute a separate offense, and a third offense will be a class 1 misdemeanor, allowing for a jail sentence of up to six months.
Christianson projected the ordinance would be ready for discussion at the May 23 city council meeting.
Unconstitutionality
Sedona’s proposed ordinance is likely to create several potential legal conflicts with state and federal law.
Phoenix constitutional law attorney Kory Langhofer, of Statecraft Law, said that he would expect the city to face litigation “based on federal or state preemption, dormant Commerce Clause and possibly regulatory takings theories.”
“The OHV businesses have been built over several decades and would be suddenly insolvent if the law takes effect, so I’m sure they will not take it lying down,” Langhofer said. “The fact that the ordinance transgresses traditional federal and state prerogatives means the businesses will have colorable legal claims.”
The dormant Commerce Clause, as interpreted by the U.S. Supreme Court, prohibits local authorities from imposing undue burdens on interstate commerce, “whether forthright or ingenious,” as the court found in Best v. Maxwell [1940]. In the Arizona-originating case of Pike v. Bruce Church [1970], the court ruled that a local statute that interferes with interstate commerce will be overturned if “the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”
In Boston Stock Exchange v. State Tax Commission [1977], the court held that statutes that discriminate against interstate commerce cannot be upheld even if a local authority is “pursuing a clearly legitimate local interest.”
In 2016, the Arizona legislature passed SB1487, now codified at ARS §41-194.01, providing that any member of the legislature can request the attorney general’s office to investigate any local ordinance “that the member alleges violates state law or the Constitution of Arizona.” If the attorney general finds an ordinance unconstitutional, the local authority must repeal it within 30 days or the state will withhold shared funds from that authority.
The Arizona Attorney General’s Office previously compelled Sedona in 2018 to repeal Ordinances 2016-06 and 2018-02, requiring short-term rentals to obtain business licenses, using the procedures established by SB1487.
“In Arizona, a civil conspiracy occurs when ‘two or more people agree to accomplish an unlawful purpose, or to accomplish a lawful object by unlawful means, causing damages,’” attorney Robert D. Mitchell of Tiffany and Bosco in Phoenix wrote in an article discussing the state’s civil conspiracy jurisprudence.
Quoting Baker v. Stewart Title, Mitchell added that “‘a conspirator is liable for any tortious act, even unknown, committed in furtherance of the conspiracy, including acts not personally committed.’”
Joe Seyton of the Goldwater Institute, a libertarian think tank in Phoenix, expressed curiosity about the city’s reasoning for wanting to pass the ordinance. Seyton stated that the draft text of the ordinance has been passed on to the institute’s legal team.
The Moab Experience
In April 2021, the city of Moab in Utah, where OHVs can also be street legal, adopted a noise ordinance setting maximum values for allowable noise from ATV exhausts and prohibiting the operation of OHVs that exceeded these levels.
In July 2021, surrounding Grand County enacted an ordinance with nearly identical language. The maximum noise levels established in these ordinances were below normal operating noise levels for OHVs. Grand County subsequently failed to provide noise testing parameters or facilities to OHV operators.
Moab also enacted a separate ordinance requiring that OHV operators submit proof that their vehicles were in compliance with the noise ordinance in order to obtain business licenses and restricting the number of vehicles an operator could own.
Following the city and county’s refusal to reconsider these ordinances, the recreation advocacy group Blue Ribbon Coalition and 12 OHV rental and tour companies sued the city and county for gross and ordinary negligence, intentional interference with economic relations, civil conspiracy, two First Amendment violations and violation of due process.
A trial in the suit is currently expected in spring 2024.
