City Nixes Vote on ATV Regulation Ordinance

By Tommy Acosta —

It has been reported  that the Sedona Council benched the proposed ATV regulation ordinance that was to be read today, Tuesday, August 8, 2023 — a vote that could have effectively prevented ATV’s and other such vehicles from being operated on Sedona’s roads and highways without meeting strict safety requirements..

The council, perhaps at its next meeting on August 22, is expected to adopt the ordinance despite warnings and objections from elected Arizona representatives, state public officials and other public entities that believe the right to drive these type vehicles on state-owned roads is protected by state/federal laws and regulations.

Further, the Conservative Goldwater Institute has indicated a robust legal challenge to the proposed ordinance will be launched should the city go ahead with its plans to regulate the ATV’s.

Though the ordinance does not specifically state such vehicles may not be driven on Sedona/state roads it specifically states such vehicles must meet stringent required equipment standards, specifically with the types of tires mounted on such vehicles, or the drivers and owners will face hefty fines.

Sedona police will be empowered to make traffic stops on vehicles they deem or believe to be unsafe.

No mention is made in the ordinance on how peace officers will know how to tell the difference between legal and non-approved tires.

Owners and operators of such vehicles have indicated that having to meet such standards set by the city could effectively put them out of business.

The city claims it is necessary to adopt certain OHV restrictions and certain regulations regarding what it considers improper motor vehicle equipment, in order to protect the health, safety, and welfare of the city residents and traveling public, in its opinion.

Bolstering its decision to regulate the ATVs, the city notes in the proposed ordinance that Sedona has experienced 710 motor vehicle accidents between 2017 and 2021, resulting in 150 injuries and 5 fatalities.

None of the accidents or fatalities on city roads involved ATVs or been attributed to specific tires.

The following is the proposed ordinance in its entirety:

ORDINANCE NO. 2023-___

AN ORDINANCE OF THE CITY OF SEDONA, ARIZONA, ADOPTING AN AMENDMENT TO THE CITY CODE TITLE 10 (VEHICLES AND TRAFFIC) BY ADDING CHAPTER 10.30 (IMPROPER MOTOR VEHICLE EQUIPMENT); PROVIDING FOR PENALTIES, A SAVINGS CLAUSE, AND FOR REPEAL OF CONFLICTING ORDINANCES; AND ESTABLISHING AN EFFECTIVE DATE.

WHEREAS, adhering to Federal and State safety regulations related to motor vehicles reduces the chances of serious injury and death; and

WHEREAS, Utility Terrain Vehicles (“UTV”), All Terrain Vehicles (“ATV”), Off Highway Vehicles (“OHV”), collectively called “OHVs,” are designed, tested, and manufactured solely for off-road use on non-paved surfaces partly because OHVs are equipped with high centers of gravity and tires that have large ridges on them, making them ill-suited for turning and traction on asphalt surfaces; and

WHEREAS, the Consumer Product Safety Commission recommends persons never ride OHVs on public or paved roads; and

WHEREAS, the National Highway Traffic Safety Administration (“NHTSA”) has said, “The use on public roads of off-road vehicles and tires that do not meet the [Federal Motor Vehicle Safety Standards] FMVSS places occupants and other road users at a greater risk of harm”; and

WHEREAS, the United States Department of Transportation (“DOT”) has said, “We share [the City of Sedona’s] concern about the operation of off-road vehicles on public roads. NHTSA has developed various FMVSS over the years through research and testing to establish minimum safety standards for vehicles and equipment intended for use on public roads. The use of off-road vehicles and tires on public roads, which do not meet those minimum safety standards, places the occupants and other road users at a greater risk of crashes and injury or death in a crash”; and

WHEREAS, all manufacturers of OHVs are sponsors and members of the Recreational Off-Highway Vehicle Association (“ROHVA”) and the Specialty Vehicle Institute of America (“SVIA”), and both ROHVA and SVIA urge that on-highway use of OHVs be prohibited and that law enforcement efforts be strengthened to eliminate the dangerous practice of on road use and sponsor model legislation that prohibits OHV use on any public street, road, or highway and as recently as March 2023 ROHVA and SVIA lobbied the Oregon legislature in opposition to making OHVs street legal; and

WHEREAS, all manufacturers of OHVs state that OHVs should not be driven and/or that OHVs are unsafe to be driven on paved and/or public roads.

WHEREAS, the ADOT MVD Off-Highway Vehicle Decal Application requires owners of OHVs to certify under penalty of perjury that the OHV “has been modified to meet all applicable safety and equipment requirements of Arizona Revised Statutes Title 28, Chapter 3, Article 16, as well as all…other federal requirements” (emphasis added); and further includes the applicant’s acknowledgement that “I understand that I may receive traffic tickets and court fines if local ordinances prohibit operation of this vehicle”; and

WHEREAS, OHVs lack numerous standard FMVSS required for on road motor vehicle use including: airbags, stability control, crumple zones, rear bumpers, and DOT approved tires; and

WHEREAS, every year tire failure causes approximately 11,000 vehicle crashes and 200 deaths nationwide and adhering to DOT tire regulations reduces the chance of tire failure, and according to NHTSA, in 2020 there were 664 traffic fatalities in tire-related crashes; and

WHEREAS, only DOT approved tires are safe to be used in highway service; and

WHEREAS, NHTSA Interpretation 1985-04.16 explains and FMVSS Standard 109 requires that all motor vehicles manufactured after 1948 have DOT approved tires for on road use; and

WHEREAS, OHVs are equipped with Not for Highway Service (NHS) tires and no OHV tires are currently DOT approved for highway or on street use (see NHTSA June 3, 2022 letter re: Improper Certification of UTV/ATV Tires to FMVSS; U.S. Tire Manufacturers Tire Information Service Bulletin TISB 07); and

WHEREAS, visitors to the City rent OHVs to be driven on paved public roads largely unaware of the foregoing safety concerns; and

WHEREAS, statewide, several OHV rental companies have gone out of business because their rental OHVs were wrecked faster than the OHVs could be repaired (Arizona Off-Highway Vehicle Study Committee Meeting July 21, 2023); and

WHEREAS, Sedona has experienced 710 motor vehicle accidents between 2017 and 2021, resulting in 150 injuries and 5 fatalities; and

WHEREAS, in the past three years, there have been four rollover OHV accidents within City limits and in 2021, statewide there were 187 OHVs involved in accidents with 16 fatalities in 2021 resulting in a 8.55% fatality rate; and

WHEREAS, OHVs are the third leading cause of deaths of children in Arizona (Arizona Off-Highway Vehicle Study Committee Meeting July 21, 2023); and

WHEREAS, plaintiffs routinely make claims against the City of Sedona for allowing or maintaining unsafe highway or road conditions; and

WHEREAS, traffic accidents and traffic congestion is a serious concern in the City and the City spends millions of dollars annually to improve traffic safety and congestion believes requiring safe motor vehicles on paved public roads will further improve safety; and

WHEREAS, A.R.S. §28-626(B)(3) delegates motor vehicle safety enforcement to municipalities stating that municipalities “shall adopt ordinances or regulations relating to the control and movement of traffic…” (emphasis added); and

WHEREAS, pursuant to A.R.S. §28-1174(B), the City of Sedona has never indicated by rule or regulation that its highways or streets are open; and

WHEREAS, the City finds that driving OHVs on paved or public roads in contravention to their design and the manufacturer recommendation constitutes reckless disregard for the safety of persons and property pursuant to A.R.S. §28-1174(A)(1); and

WHEREAS, the City deems it necessary to adopt certain OHV restrictions and certain regulations regarding improper motor vehicle equipment to protect the health, safety, and welfare of the City residents and travelling public.

BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF SEDONA, ARIZONA, as follows:

Section 1. Amendment of Sedona City Code Title 10 (Vehicles and Traffic)

Title 10 (Vehicles and Traffic) of the City Code of the City of Sedona is hereby amended by adding the following Chapter:

Chapter 10.30 – IMPROPER MOTOR VEHICLE EQUIPMENT

10.30.010 – Definitions.

In this chapter unless the context otherwise requires:

“Driver” means a person who drives or is in actual physical control of a motor vehicle.

“Highway” or “road” mean the entire width between the boundary lines of every paved street or way if a part of the street or way is open to the use of the public for purposes of motor vehicle travel.

“Manufacturer” means a person or entity—
(A) manufacturing or assembling motor vehicles or motor vehicle equipment; or (B) importing motor vehicles or motor vehicle equipment for resale.

“Motor vehicle” means a self-propelled vehicle, including OHVs. It does not include electric bicycles, motorized wheelchairs, or an electric mobility assist device.

“Off-highway Vehicle” or “OHV” means a self-propelled vehicle that is designed and manufactured primarily for off-highway use. It includes Utility Terrain Vehicles, All Terrain Vehicles, Off Highway Vehicles (collectively “OHVs”). It does not include electric bicycles, motorized wheelchairs, or an electric mobility assist device.

“Owner” means the person in whose name such motor vehicle is registered.

“Public employees” means any federal, state, county, or City employees.

“State or Federal motor vehicle safety standards” means all motor vehicle standards listed in A.R.S. Title 28 or the Federal motor vehicle safety standards (“FMVSS”) contained in Title 49 of the Code of Federal Regulations.

10.30.020 – Operating Motor Vehicle with Improper Motor Vehicle Equipment Prohibited.

1. A person shall not drive or operate on a highway or road a motor vehicle that:
   1. Is in an unsafe condition that endangers a person.
   2. Does not contain those parts or is not at all times equipped with lamps and other

equipment in proper condition and adjustment as required in this chapter.

1. 1. IsnotequippedinthemannerrequiredbyStateorFederalmotorvehiclesafetystandards

for motor vehicles that are intended for on-highway operation

1. 1. Isnotintendedtobeused,isunsafe,orisnotdesignedorapprovedbythemanufacturer

to be operated on highways or roads as declared in the motor vehicle’s certificate of origin or owner’s manual.

1. An owner shall not drive or operate or rent to or allow a person to drive or operate on a highway or road the owner’s motor vehicle that:
   1. Is in an unsafe condition that endangers a person.
   2. Does not contain those parts or is not at all times equipped with lamps and other

equipment in proper condition and adjustment as required in this chapter.

1. 1. IsequippedinanymannerinviolationofStateorFederalmotorvehiclesafetystandards.
   2. Isnotintendedtobeused,isunsafe,orisnotdesignedorapprovedbythemanufacturer

to be operated on highways or roads as declared in the motor vehicle’s certificate of origin or owner’s manual.

1. For purposes of this section, a motor vehicle is deemed to be in an unsafe condition that endangers a person if it is equipped with tires that do not contain the DOT tire symbol that reflects compliance with FMVSS contained in 49 C.F.R. §574.5.

10.30.030 – Applicability; Closure of Highways to Certain Vehicles; Exceptions.

1. This chapter applies to all highways and roads within the Sedona City limits.
2. Pursuant to A.R.S. 28-1174(A)(3), all highways and roads within the Sedona City limits are closed

to OHV use.

3. This chapter does not apply to:
   A. Public employees or their designees in the performance of their official duties with

appropriate safety training, or to any motor vehicle owned or operated by any federal,

state, or local governmental entity.
B. Motor vehicles manufactured prior to 1948.

10.30.40 – Inspections.

If at any time there is reasonable cause to believe that a motor vehicle is unsafe or is not equipped as required by this chapter or that a vehicle’s equipment is not in proper adjustment or repair, any peace officer may require the driver of the motor vehicle to stop and submit the vehicle to an inspection and such test with reference to the inspection as may be appropriate.

10.30.050 – Authority to Impound Vehicles.

Vehicles operated in violation of this chapter may be impounded in the same manner as provided for by the provisions of SCC 10.15.150.

10.30.060 – Enforcement; Liability.

1. Any AZPOST certified peace officer may issue a written warning or citation for the violation of this chapter.
2. Persons Liable. If any motor vehicle is found in violation of any provision of this chapter, the owner, the person in whose name such motor vehicle is registered, as well as the driver of the vehicle at the time of the violation, shall be jointly and severally responsible for such violation and are subject to the penalties therefor. If the vehicle is not attended by a driver, the owner, or person in whose name such vehicle is registered, shall be held prima facie responsible for such violation and is subject to the penalties therefor. Proof that a person other than the owner was operating the vehicle at the time of the violation shall not constitute a valid defense to the offense.

10.30.070 – Separate Offenses.

Each violation pursuant to this chapter shall constitute a separate offense and each day a violation remains unabated may constitute a separate offense.

10.30.080 – Penalties.

1. Upon a first violation of this chapter with the motor vehicle, an officer shall issue a written warning or repair order. If a repair order is issued, a certificate of correction or adjustment of illegal or faulty equipment shall be obtained by the owner and shown to the police department within 14 days.
2. If there is a violation of this chapter and the owner fails to provide the City with a certificate of correction or adjustment within 14 days or the person has previously been issued a warning within one hundred eighty (180) days from the date a warning was issued, the violation is a civil offense punishable by a fine not to exceed five hundred dollars ($500.00), plus any other penalties, assessments or surcharges authorized by law.
3. Ifthereisaviolationofthischapterandthepersonhaspreviouslybeenconvictedtwo(2)ormore times of violating this chapter under subsection B, the new violation is a class 1 misdemeanor, plus any other penalties, assessments or surcharges authorized by law.

Section 3. Savings Clause

If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason

held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remainder of this Ordinance.

Section 4. Repeal

All other code provisions, ordinances, or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed to the extent of such conflict as of the effective date hereof.

Section 5. Effective Date

The effective date of this Ordinance shall be 60 days following adoption by the City Council.

PASSED AND ADOPTED by the Mayor and Council of the City of Sedona, Arizona, this _____ day of _________, 2023.

ATTEST:

_____________________________

JoAnne Cook, CMC, City Clerk APPROVED AS TO FORM:

_____________________________

Kurt W. Christianson, City Attorney

________________________________

Scott M. Jablow, Mayor