Adam Shelton, a staff attorney at the Goldwater Institute’s Scharf Norton Center for Constitutional Litigation, wrote to Sedona Mayor Scott Jabrough, City Manager Karen Osburn, and City Attorney Kurt Christianson to support the mayor’s proposal. A state law warned that the proposed OHV ban could be invalid in Arizona.
The Sedona City Council is scheduled to discuss Jabro’s OHV ban proposal at the city council meeting on Tuesday, May 23.
“The proposed regulations are likely to be preempted by state law, and we believe that OHVs can be legally driven on the roads and highways as long as they are equipped with the equipment required by state law.” wrote Shelton.
“Chapters 3, 4 and 5 of Title 28 ‘apply and are uniform throughout this State and in all political districts of this State,'” Shelton wrote.[Arizona Revised Statute] § 28-626(A). Furthermore, local governments “cannot enact or enforce ordinances or regulations that are contrary to law.” [chapter 3] See chapter 4 or 5 of this title, unless expressly permitted by [chapter 3] Or see Chapter 4 or 5 under this title. ARS § 28-626(B)(1). ”
“Although local governments may adopt ‘Traffic Control and Movement Regulations’ (ARS § 28-626(B)(3)), the proposed ordinance does not address traffic control or movement, The OHV handles the equipment needed to move traffic, and is considered safe enough to drive on the streets of Sedona,” Shelton wrote.
Shelton writes: “Article 20 of Chapter 3 is entirely devoted to OHV. In this article, ‘highway’ means ‘a federal, provincial, municipal “the full width between all road boundaries officially maintained by a town, town, or county.” ARS §28-1171(3), “Public Use for Travel in Conventional Two-Wheel Drive Vehicles.”
The chapter applies to all land in the state, Shelton said, exempting only “private land and Indian land.”
According to Shelton, the chapter allows individuals to “obtain motor vehicle registration if the motor vehicle meets all equipment requirements for operation on highways,” and that “an OHV meets the criteria. You can receive this registration by submitting an affidavit confirming that you are Upon receipt of equipment requirements and affidavit for highway use”. By law, if an individual qualifies, “authorities must register the vehicle for highway use.”
Shelton then said, “These provisions also indicate Congress’ intent to allow OHVs to be used on Arizona highways as long as they are equipped with the safety equipment required by law. It shows,” he claims. The definition of highway used in Chapter 20 includes all roads within Sedona. Therefore, since state law sets out equipment requirements for safe highway driving, ordinances requiring different equipment will be preempted by state law. ”
Shelton writes that “there are other potential legal flaws” that make Jabrough’s bill unconstitutional.
“…There are concerns that the ordinance contains an unconstitutional delegation of government authority to defer the legality of OHVs on the road to private manufacturers. It does not contain clear standards for exercising or governing procedural safeguards.It merely delegates government powers to non-governmental organizations, which is unconstitutional…”
Mr. Shelton provided legal expertise to Jabrough and staff. “Our staff are always available to discuss the legal issues raised by this proposed ordinance. We look forward to receiving confirmation that you have decided not to adopt.”
Founded in 1988 with the backing of former US Senator Barry M. Goldwater [1909-1998]The Goldwater Institute, which ran for president in 1964, was “a conservative and liberal public policy think tank in Phoenix whose mission is to ‘promote the freedoms guaranteed to all Americans by the constitutions of the United States and all 50 states. We will protect and strengthen it.” ”
The full text of the letter is below.
Reproposed Ordinance Re-Off-Highway Vehicle Safety Device 230522
Jablow’s proposed OHV ban:
Sedona Proposed OHV Ordinance
