STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5779

September 15, 1980

CITIES:

Motorcycles and mopeds--use on city streets during night hours

CONSTITUTIONAL LAW:

Equal protection of the laws

HIGHWAYS AND ROADS:

Prohibition of use of certain motorcycles and mopeds on residential streets during night hours

A city ordinance which bars the use of certain motorcycles and mopeds on residential streets between the hours of 10:00 p.m. and 7:00 a.m. does not violate the Equal Protection Clauses of the Federal and State Constitutions.

Honorable Doug Ross

State Senator

The Capitol

Lansing, Michigan 48909

You have requested my opinion on the legality of the City of Oak Park's action of posting signs stating that motorcycles are not allowed on certain residential streets between the hours of 10:00 p.m. and 7:00 a.m.

The City of Oak Park passed Ordinance 40-283 which provides the following:

Const 1963, art 7, s 29 provides:

In People v McGraw, 184 Mich 233, 238; 150 NW 836, 837 (1915), the Supreme Court stated that:

In Great Lakes Motorcycles Dealers Association, Inc v Detroit, 38 Mich App 564; 196 NW2d 787 (1972), the Court of Appeals considered a similar ordinance enacted by the City of Detroit. Under its ordinance, the City of Detroit entertained petitions for the barring of motorcycles entirely from certain residential streets. Petitions were reviewed to determine that:

Thereafter, the Common Council approved signs which prohibited certain motorcycles and mopeds from such streets during the hours of 10:00 p.m. to 7:00 a.m.

Although the Court of Appeals in Great Lakes Motorcycle Dealers Association, Inc., supra, stated that the City has a legitimate interest in regulating traffic flow upon its streets so as to eliminate excessive speed and noise, the Court found that:

Accordingly, a city ordinance barring motorcycles and other motor vehicles from residential streets during certain hours, based upon the decibel noise level of the motorcycles and other motor vehicles, may be sustained as a reasonable exercise of police power as it relates to noise.

In Belanger v Chesterfield Township, Court of Appeals No. 43089 (decided April 2, 1980) the Court of Appeals again dealt with the issue of the reasonableness of local ordinances covering the use of residential streets by motor vehicles. A Chesterfield Township ordinance which prohibited the parking of motor venicles in residential areas weighing over a specified weight was upheld as a reasonable regulation of the streets. The Court held that the parking ordinance setting the classification of motor vehicles by weight rationally furthered the safety of township residents. The Court found that larger motor vehicles may create unsafe traffic conditions for drivers and pedestrians. Large vehicles may also impede emergency vehicle access to streets.

As in the case of the city ordinance in Belanger, supra, the City of Oak Park Ordinance 40-283 substantially and rationally furthers the public health, safety and welfare. By prohibiting the use of motorcycles and mopeds on residential streets from 10:00 p.m. until 7:00 a.m. (except the operation of motorcycles or mopeds to travel to or from one's place of residence, to perform deliveries and to travel in emergency situations), the ordinance rationally furthers the public welfare by eliminating the noise and exhaust emissions associated with recreational late-night, early-morning, 'pleasure driving.'

This reading of the ordinance is in keeping with the Court's statement in McGraw, supra, 184 Mich 233, 238; 150 NW 836, 837 that 'reasonable control' of city streets '[a]llows a municipality to recognize local and peculiar conditions, . . .' Just as the ordinance in McGraw, supra, took into consideration the unique local traffic congestion problem, Ordinance 40-283 takes into consideration the 'local and peculiar conditions' the City of Oak Park experienced with the operators of motorcycles and mopeds disturbing the relative tranquility of their residential communities during the late-evening and early-morning hours.

Oak Park Ordinance 40-283, is narrowly tailored to remedy the local problem which residents of Oak Park faced and does so without arbitrarily banning the use of all motorcycles and mopeds at all hours. Great Lakes, supra, is thereby distinguished because the ordinance in question does not involve an overbroad blanket exclusion of all two-wheeled motor vehicle traffic.

Although an ordinance banning any motor vehicle which emits more than a specified decibel noise level would be better suited for the task, a legislative body such as the Oak Park City Council is not prohibited by the equal protection clause from approaching the problem as it did. Legislation requires only a rational basis to separately classify two-wheeled motor vehicles from other motor vehicles for regulatory purposes. Shavers v Attorney General of Michigan, 402 Mich 554; 267 NW2d 148 (1978). It is rational for a municipality such as Oak Park to determine that motorcycles and mopeds constitute the major portion of their late-night, early-morning, residential traffic noise problem and to regulate accordingly.

It is, therefore, my opinion that Oak Park Ordinance 40-283 furthers the public health, safety and welfare without discriminating in an arbitrary fashion, and thus does not violate the Equal Protection Clause of Const 1963, art 1, s 2 and US Const, art XIV, s 1.

Frank J. Kelley