The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6731 September 15, 1992 HIGHWAYS AND ROADS: Authority of cities, villages and townships to enact ordinances allowing operation of off-road vehicles by permanently disabled persons on county roads CITIES: Authority of cities, villages and townships to enact ordinances allowing operation of off-road vehicles by permanently disabled persons on county roads VILLAGES: Authority of cities, villages and townships to enact ordinances allowing operation of off-road vehicles by permanently disabled persons on county roads TOWNSHIPS: Authority of cities, villages and townships to enact ordinances allowing operation of off-road vehicles by permanently disabled persons on county roads Cities, villages and townships may enact local ordinances allowing permanently disabled persons to operate off-road vehicles on county roads that are located within their respective boundaries, notwithstanding the jurisdiction of county road commissions over those roads. Honorable Tom Alley State Representative The Capitol Lansing, Michigan You have asked whether cities, villages and townships may enact local ordinances allowing permanently disabled persons to operate off-road vehicles on county roads that are located within their respective boundaries, notwithstanding the jurisdiction of county road commissions over those roads. Under Michigan law, off-road recreation vehicles may not be operated upon a public highway, street or right-of-way except to cross a highway or as authorized by permit for a specific event for a limited duration (e.g. a parade). (1) In recognition of the utility of off-road vehicles to disabled persons, the Michigan Legislature, in 1991, amended the Michigan off-road recreation vehicle act, 1975 PA 319, MCL 257.1601 et seq; MSA 9.3300(1) et seq, to authorize cities, villages and townships to enact ordinances allowing the operation of those vehicles within their jurisdictions upon public highways and streets. Section 18(2) of 1975 PA 319, MCL 257.1618; MSA 9.3300(18), as amended by 1991 PA 17, provides: A city, village, or township may pass an ordinance allowing a permanently disabled person to operate an ORV in that city, village, or township. Clearly, the Michigan Legislature has authorized cities, villages and townships to adopt ordinances allowing permanently disabled persons to operate off-road vehicles within the confines of their respective political boundaries. Your request, however, raises the question whether this grant of authority is limited in some manner by the jurisdiction of county road commissions over county roads. The legislative history of 1991 PA 17, House Legislative Analysis, HB 4010 as enrolled, August 7, 1991, states that "cities, villages and townships would still have the authority to pass an ordinance to allow a permanently disabled person to operate an ORV in the municipality." There is no indication that this statutory grant of authority to pass ordinances does not include county roads, under the jurisdiction of county road commissions, located within the boundaries of each municipality. The right of counties, townships, cities and villages to have reasonable control over their highways and streets is reserved by Const1963, art 7, Sec. 29, which provides, in pertinent part, as follows: Except as otherwise provided in this constitution, the right of all counties, townships, cities and villages to the reasonable control of their highways, streets, alleys and public places is hereby reserved to such local units of government. In People v McGraw, 184 Mich 233, 238; 150 NW 836, (1915), the Michigan Supreme Court interpreted Const1908, art 8, Sec. 28, the predecessor to Const1963, art 7, Sec. 29, and held: [T]he municipality retains reasonable control of its highways, which is such control as cannot be said to be unreasonable and inconsistent with regulations which have been established, or may be established, by the State itself with reference thereto. This construction allows a municipality to recognize local and peculiar conditions and to pass ordinances regulating traffic on its streets, which do not contravene the State laws. OAG, 1977-1978, No 5307, p 448 (May 18, 1978), addressed whether cities, villages and townships may enact ordinances regulating the use of state trunkline highways within their respective jurisdictions. After examining the relevant constitutional provisions and case law, the opinion concluded, at p 450, that: Considering these authorities, it is my opinion that, subject to the limitations noted herein, Const1963, art 7, Sec. 29 when read together with Const1963, art 5, Sec. 28 guarantees to local units of government the right to reasonable control over highways and streets, including state trunkline highways, within their municipal boundaries. Local units of government are, therefore, free to enact ordinances restricting commercial vehicles, such as double tandem tankers, to certain routes; they may also impose weight limitations thereon and require that certain types of cargoes be covered. [ Emphasis added.] The last sentence of Const1963, art 7, Sec. 29, which confers counties, townships, cities and villages with the reasonable control of their highways and streets, starts with the language "[e]xcept as otherwise provided in this constitution." Const1963, art 7, Sec. 16, states that "[t]he legislature may provide the powers and duties of counties in relation to highways, bridges, culverts and airports." Const1908, art 8, Sec. 26, contained similar language. Consistent with Const1963, art 7, Sec. 16, and its predecessor provision, Const1908, art 8, Sec. 26, the Legislature has abolished township roads and placed them under the jurisdiction of county road commissions. See the McNitt Act, 1931 PA 130, which was repealed and replaced by 1951 PA 51, MCL 247.651 et seq; MSA 9.1097(1) et seq, and Union Twp v Mt. Pleasant, 381 Mich 82, 86; 158 NW2d 905 (1968). The conflicting claims of township and county road commission authority over county roads have been analyzed by Michigan's appellate courts on two occasions. In both instances, township authority prevailed. The Michigan Supreme Court held, in Union Twp v Mt. Pleasant, supra, 381 Mich, at pp 88-90, that a city could not construct a pipeline to its water source along the right-of-way of a county road running through a township without the approval of both the county road commission and the township. In reaching that result, the Court squarely rejected the claim that, since township roads are now under the control of county road commissions, townships may no longer exercise reasonable control over these roads within their boundaries. Rather, the Court relied upon Const1963, art 7, Sec. 29, in reaching its conclusion that township approval was required. More recently, in Robinson Twp v Ottawa County Rd Comm'rs, 114 MichApp 405; 319 NW2d 589, lv den 414 Mich 955 (1982), the Michigan Court of Appeals held that a township could enact a truck route ordinance applicable to county roads within the township. The Court of Appeals rejected the claim that townships have no authority to control county roads within their boundaries, holding instead, at p 411, 413: Basically, defendant's argument rests on a literal reading of the McNitt Act and its successor. Read literally, there would be no township roads and, consequently, no authority in the township to control roads within township boundaries. Yet such an interpretation makes useless art 7, Sec. 29, providing that townships are to have reasonable control over their streets. Certainly, the delegates to the Constitutional Convention of 1963 would not have included the word "townships" in the last sentence of Sec. 29, if, as claimed by defendant, jurisdiction had been lost under the McNitt Act in 1931. We agree with Union Twp that the McNitt Act transferred to the county road commission the "responsibility for laying out, construction, improvement, and maintenance of township roads", but in other respects, such as weight limits, designation of truck routes and related traffic control matters, control remains with the township. These authorities compel the conclusion that, pursuant to Const1963, art 7, Sec. 29, and section 18(2) of 1975 PA 319, cities, villages and townships may enact local ordinances allowing permanently disabled persons to operate off-road vehicles on county roads that are located within their respective boundaries, notwithstanding the jurisdiction of county road commissions over those roads. It is my opinion, therefore, that cities, villages and townships may enact local ordinances allowing permanently disabled persons to operate off-road vehicles on county roads that are located within their respective boundaries, notwithstanding the jurisdiction of county road commissions over those roads. Frank J. Kelley Attorney General (1 See MCL 257)