STATE OF MICHIGAN

A township bicycle path is not a recreational trailway that can only be regulated by an ordinance that is posted and maintained near each gate or principal entrance to the bicycle path.

Opinion No. 7108

May 14, 2002

Honorable Barb Vander Veen
State Representative
The Capitol
Lansing, MI

You have asked if a township bicycle path is a recreational trailway that can only be regulated by an ordinance that is posted and maintained near each gate or principal entrance to the bicycle path.

Section 21c of the Charter Township Act, 1947 PA 359, MCL 42.1 et seq, requires posting of ordinances regulating recreational trailways as follows:

(1) An ordinance regulating a recreational trailway is not effective unless it is posted and maintained near each gate or principal entrance to the trailway.

(2) The operation of a vehicle on a recreational trailway at a time, in a place, or in a manner prohibited by an ordinance is a municipal civil infraction, whether or not so designated by the ordinance.

Section 21c, dealing with the regulation of recreational trailways, was added to the Charter Township Act by 1994 PA 82. Section 21c makes no reference to a bicycle path. But in 1994 charter townships already possessed express statutory authority to engage in "[t]he construction, maintenance, and improvement of bicycle paths." See section 2(1)(g) of 1954 PA 188, as then last amended by 1986 PA 180, MCL 41.722, and section 1(2) of the Charter Township Act.

In order to determine whether a bicycle path is a recreational trailway, it is necessary to determine legislative intent. That task begins with an examination of the statutory language. Words used by the Legislature must be given their common and ordinary meaning. Nawrocki v Macomb County Rd Comm, 463 Mich 143, 159; 615 NW2d 702 (2000). If a statute defines a term, then that definition is controlling. Tryc v Michigan Veterans' Facility, 451 Mich 129, 136; 545 NW2d 642 (1996). Also, in interpreting a statute, courts may look to definitions and terms used by the Legislature in other statutes. Hatch v Grand Haven Charter Twp, 461 Mich 457, 461-465; 606 NW2d 633 (2000).

Section 21c(2) of the Charter Township Act, which regulates the operation of a vehicle on a recreational trailway, contains no definition of the term "vehicle." However, in section 79 of the Michigan Vehicle Code, 1949 PA 300, MCL 257.1 et seq, the Legislature has excluded from the definition of vehicle "devices exclusively moved by human power." Thus historically, the Legislature has not included bicycles within the definition of vehicle.

Similarly, the Charter Township Act contains no definition of the term "recreational trailway." In the absence of a statutory definition, legislative history may be consulted. Michigan courts rely on legislative history, including House and Senate legislative analysis papers, in ascertaining legislative intent. Luttrell v Dep't of Corrections, 421 Mich 93, 103; 365 NW2d 74 (1984). The legislative analysis of HB 4350, as enrolled, which became 1994 PA 82, demonstrates that the Legislature was particularly concerned about enabling charter townships to regulate the operation of motor vehicles on trailways designated by the Natural Resources Commission as part of the Michigan trailways system.

In response to concerns about the proper development of recreational trailways, public support for new recreational opportunities, and growing local interest in urban "greenways", Public Acts 26, 27, and 28 of 1993 provide for the creation of a statewide trailways system. These laws authorize the Natural Resources Commission to designate trailways throughout Michigan, and permit the Department of Transportation to transfer abandoned railroad rights-of-way to the Department of Natural Resources for use as trailways. . . .

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As envisioned by the Department of Natural Resources, the Michigan trailways system will be an interconnected group of trails running through both remote countryside and the center of cities and villages, from Michigan's southern border up to the Mackinac Bridge and through the Upper Peninsula to the state's northernmost border. While this system is expected to create an array of new recreational opportunities for Michigan's citizens and tourists, it also undoubtedly will provide new opportunities for property damage and other criminal activity. This is particularly the case if designated trails are to be used by motorized vehicles, such as cars, motorcycles, and off-road vehicles. Thus, it is necessary to give the local governmental units the means to discourage people from using vehicles on trails in a way that would violate a municipal ordinance. [House Legislative Analysis, HB 4350, April 5, 1994; emphasis added.]

In the Michigan Trailways Act, 1993 PA 27, the Legislature first authorized the designation, use, and maintenance of a statewide system of trailways. In 1995 PA 58, the Legislature repealed the Michigan Trailways Act and reenacted it as Part 721 of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, MCL 324.72101 et seq. Section 72101, which defines terms used in Part 721, defines "Michigan trailway" and "trailway" as follows:

(e) "Michigan trailway" means a trailway designated by the commission pursuant to section 72103.

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(g) "Trailway" means a land corridor that features a broad trail capable of accommodating a variety of public recreation uses. [Emphasis added.]

Under section 72103 of the NREPA, the Natural Resources Commission may designate a trailway as a "Michigan trailway" if it meets certain enumerated requirements. To be considered a trailway under sections 72101 and 72103, the land corridor must be capable of handling varied public recreation uses. A trailway, however, is distinguishable from a bicycle path. The distinction between the two appears in section 72104(1) of Part 721 of the NREPA, where the Legislature separately uses the terms "trailway" and "bicycle path."

(1) Upon petition by any person or on its own motion, the commission may designate a trailway, bicycle path, sidewalk, road, or other suitable route that does not meet the requirements of this part for a Michigan trailway as a "Michigan trailway connector" if the connector meets all of the following: . . . . [Emphasis added.]

Where the Legislature has distinguished between a trailway and a bicycle path, recognizing each as a separate and distinct category, the logical conclusion is that a bicycle path is not a trailway.¹

The Legislature has distinguished trailways from bicycle paths in other respects. Under section 72103(2) and (3) of Part 721 of the NREPA, the Natural Resources Commission may permit motorized uses on a designated Michigan trailway. But, in section 419 of the Michigan Penal Code, 1931 PA 328, MCL 750.1 et seq, the Legislature has generally prohibited the operation of motor vehicles upon a bicycle path.

A person who operates or rides a motorcycle, moped, or other motor vehicle, excepting motorized wheelchairs upon a bicycle path or a sidewalk regularly laid out and constructed for the use of pedestrians, not including a crosswalk or driveway, is guilty of a misdemeanor. [Emphasis added.]

Under this section, a person may not, for example, operate a snowmobile upon a bicycle path. See Letter Opinion of the Attorney General to Patrick Nowak, Director, Michigan Department of Transportation, dated February 4, 1992. It is, therefore, clear that while motorized uses may be authorized on a trailway, such uses on a bicycle path are generally prohibited.

While the Legislature has distinguished between trailways and bicycle paths, that distinction does not mean that townships lack authority to regulate bicycle paths. Section 21c of the Charter Township Act authorizes a charter township to regulate a bicycle path. Independent of the authority granted by section 21c, a township may enact ordinances regulating bicycle paths under its general authority to adopt ordinances "for the public peace and health and for safety of persons and property therein." See section 15 of the Charter Township Act and Renne v Waterford Twp, 73 Mich App 685, 690-691; 252 NW2d 842 (1977). A charter township that regulates a bicycle path by ordinance need not post its ordinance near the bicycle path.

It is my opinion, therefore, that a township bicycle path is not a recreational trailway that can only be regulated by an ordinance that is posted and maintained near each gate or principal entrance to the bicycle path.

JENNIFER M. GRANHOLM
Attorney General