HB-4284, As Passed House, May 22, 2013

 

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 4284

 

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

by amending sections 81131 and 81133 (MCL 324.81131 and 324.81133),

 

section 81131 as amended by 2011 PA 107 and section 81133 as

 

amended by 2012 PA 340.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 81131. (1) A municipality may pass an ordinance allowing

 

a permanently disabled person to operate an ORV in that

 

municipality.

 

     (2) Subject to subsection (4), the county board of

 

commissioners of an eligible county may adopt an ordinance

 

authorizing the operation of ORVs on the maintained portion of 1 or

 

more roads located within the county. Not less than 45 days before

 

a public hearing on the ordinance, the county clerk shall send

 

notice of the public hearing, by certified mail, to the county road

 

commission, to the legislative body of each township and

 

municipality located within the county, and, if state forestland is

 

located within the county, to the department.

 

     (3) Subject to subsection (4), the legislative body of a

 

township board of a township or municipality located in an eligible

 

county may adopt an ordinance authorizing the operation of ORVs on

 

the maintained portion of 1 or more roads located within the

 

township or municipality, respectively. Not less than 28 days

 

before a public hearing on the ordinance, the township clerk of the

 

township or municipality shall send notice of the public hearing,

 

by certified mail, to the county road commission, to the

 

legislative body of every other township and municipality located

 

within the county, and, if state forestland is located within the

 

township or municipality, to the department. This subsection does

 

not apply to a township or municipality until 1 year after the

 

effective date of the amendatory act that first defined eligible

 

county so as to include the county in which that township or

 

municipality is located.

 

     (4) The board of county road commissioners may close a road to

 

the operation of ORVs under subsection (2) or (3) to protect the

 

environment or if the operation of ORVs under subsection (2) or (3)

 

poses a particular and demonstrable threat to public safety. A

 

county road commission shall not under this subsection close more

 

than 30% of the linear miles of roads located within the county to

 

the operation of ORVs under subsection (2) or (3). The legislative

 

body of a township board of a township or municipality located in

 

an eligible county may adopt an ordinance to close a road located

 

in the township or municipality to the operation of ORVs under

 

subsection (2). The legislative body of a village may adopt an

 

ordinance to close a road located in the village to the operation

 

of ORVs otherwise authorized under subsection (3).

 

     (5) The legislative body of a municipality located in an

 

eligible county may adopt an ordinance authorizing the operation of

 

ORVs on the maintained portion of 1 or more streets within the

 

municipality.

 

     (6) Subject to subsection (4), if a local unit of government

 

adopts an ordinance pursuant to subsection (2), (3), or (5), or

 

(8), a person may operate an ORV with the flow of traffic on the

 

far right of the maintained portion of the road or street or the

 

shoulder of the state trunk line highway covered by the ordinance.

 

A person shall not operate an ORV pursuant to subsection (2), (3),

 

or (5), or (8) at a speed greater than 25 miles per hour or a lower

 

posted ORV speed limit or in a manner that interferes with traffic

 

on the road or street.

 

     (7) Unless the person possesses a license as defined in

 

section 25 of the Michigan vehicle code, 1949 PA 300, MCL 257.25, a

 

person shall not operate an ORV pursuant to subsection (2), (3), or

 

(5), or (8) if the ORV is registered as a motor vehicle under

 

chapter II of the Michigan vehicle code, 1949 PA 300, MCL 257.201

 

to 257.259, and either is more than 60 inches wide or has 3 wheels.

 

ORVs operated pursuant to subsection (2), (3), or (5), or (8) shall

 

travel single file, except that an ORV may travel abreast of

 

another ORV when it is overtaking and passing, or being overtaken

 

and passed by, another ORV.

 

     (8) If a local unit of government receives an authorization

 

from the state transportation department under this subsection, the

 

local unit of government may adopt an ordinance authorizing the

 

operation of ORVs on the shoulders of state trunk line highways

 

located within the local unit of government. Upon submission of a

 

request for authorization by a local unit of government, the state

 

transportation department may authorize the operation of ORVs on

 

the shoulders of state trunk line highways where the operation of

 

ORVs on the shoulders of state trunk line highways is necessary to

 

connect the shoulders of roads or other authorized routes upon

 

which ORVs are permitted to travel, or to otherwise complement

 

local ORV ordinances and transportation networks. The state

 

transportation department shall consider ease of use and the ORV

 

ordinances of the county within which the local unit of government

 

is located in determining whether to authorize the operation of

 

ORVs on the shoulders of state trunk line highways under this

 

subsection. The state transportation department shall issue a

 

decision on whether to authorize the operation of ORVs on the

 

shoulders of state trunk line highways no later than 60 days after

 

receiving a request for authorization from a local unit of

 

government. A county may submit a request for authorization under

 

this subsection to the state transportation department on behalf of

 

1 or more townships or municipalities located within that county.

 

     (9) (8) A person shall not operate an ORV pursuant to this

 

section without displaying a lighted headlight and lighted

 

taillight.

 

     (10) (9) A person under 18 years of age shall not operate an

 

ORV pursuant to this section unless the person is in possession of

 

a valid driver license or under the direct supervision of a parent

 

or guardian and the person has in his or her immediate possession

 

an ORV safety certificate issued pursuant to this part or a

 

comparable ORV safety certificate issued under the authority of

 

another state or a province of Canada. A person under 12 years of

 

age shall not operate an ORV pursuant to this section. The

 

requirements of this subsection are in addition to any applicable

 

requirements of section 81129.

 

     (11) (10) A township that has authorized the operation of ORVs

 

on a road under subsection (3) does not have a duty to maintain the

 

road in a condition reasonably safe and convenient for the

 

operation of ORVs. A board of county road commissioners, a county

 

board of commissioners, or a municipality does not have a duty to

 

maintain a road or street under its jurisdiction in a condition

 

reasonably safe and convenient for the operation of ORVs, except

 

the following ORVs:

 

     (a) ORVs registered as motor vehicles as provided in the code.

 

     (b) ORVs permitted by an ordinance as provided in subsection

 

(1).

 

     (12) (11) Beginning October 19, 1993, a board of county road

 

commissioners, a county board of commissioners, and a county are,

 

and, beginning on April 25, 1995, a municipality is, immune from

 

tort liability for injuries or damages sustained by any person

 

arising in any way out of the operation or use of an ORV on

 

maintained or unmaintained roads, streets, shoulders, and rights-

 

of-way over which the board of county road commissioners, the

 

county board of commissioners, or the municipality has

 

jurisdiction. The immunity provided by this subsection does not

 

apply to actions that constitute gross negligence. As used in this

 

subsection, "gross negligence" means conduct so reckless as to

 

demonstrate a substantial lack of concern for whether an injury

 

results.

 

     (13) (12) In a court action in this state, if competent

 

evidence demonstrates that a vehicle that is permitted to operate

 

on a road or street pursuant to the code was in a collision with an

 

ORV required to be operated on the far right of the maintained

 

portion of a road or street pursuant to an ordinance adopted under

 

subsection (2), (3), or (5), or (8), the operator of the ORV shall

 

be considered prima facie negligent.

 

     (14) (13) A violation of an ordinance described in this

 

section is a municipal civil infraction. The ordinance may provide

 

for a maximum fine of not more than $500.00 for a violation of the

 

ordinance. In addition, the court shall order the defendant to pay

 

the cost of repairing any damage to the environment, a road or

 

street, or public property damaged as a result of the violation.

 

     (15) (14) The treasurer of the local unit of government shall

 

deposit fines collected by that local unit of government under

 

section 8379 of the revised judicature act of 1961, 1961 PA 236,

 

MCL 600.8379, and subsection (13) (14) and damages collected under

 

subsection (13) (14) into a fund to be designated as the "ORV

 

fund". The legislative body of the local unit of government shall

 

appropriate revenue in the ORV fund as follows:

 

     (a) Fifty percent to the county sheriff or police department

 

responsible for law enforcement in the local unit of government for

 

ORV enforcement and training.

 

     (b) Fifty percent to the board of county road commissioners

 

or, in the case of a city or village, to the department responsible

 

for street maintenance in the city or village, for repairing damage

 

to roads or streets and the environment that may have been caused

 

by ORVs and for posting signs indicating ORV speed limits or

 

indicating whether roads or streets are open or closed to the

 

operation of ORVs under this section.

 

     (16) (15) As used in this section:

 

     (a) "Eligible county" means any of the following:

 

     (i) Oceana, Newaygo, Montcalm, Gratiot, Saginaw, Tuscola, or

 

Sanilac county or a county lying north thereof, including all of

 

the counties of the Upper Peninsula.

 

     (ii) St. Clair county.

 

     (b) "Local unit of government" means a county, township, or

 

municipality.

 

     (c) "Municipality" means a city or village.

 

     (d) "Road" means a county primary road or county local road as

 

described in section 5 of 1951 PA 51, MCL 247.655.

 

     (e) "Street" means a city or village major street or city or

 

village local street as described in section 9 of 1951 PA 51, MCL

 

247.659.

 

     Sec. 81133. An individual shall not operate an ORV:

 

     (a) At a rate of speed greater than is reasonable and proper,

 

or in a careless manner having due regard for conditions then

 

existing.

 

     (b) Unless the individual and any passenger in or on the

 

vehicle is wearing on his or her head a crash helmet and protective

 

eyewear approved by the United States department of transportation.

 

This subdivision does not apply to either of the following:

 

     (i) The operator of or a passenger in a vehicle that is

 

equipped with a roof that meets or exceeds standards for a crash

 

helmet if the operator and each passenger is wearing a properly

 

adjusted and fastened safety belt.

 

     (ii) The operator of or a passenger in an ORV that is operated

 

on a state licensed game bird hunting preserve at a speed of not

 

greater than 10 miles per hour.

 

     (c) During the hours of 1/2 hour after sunset to 1/2 hour

 

before sunrise without displaying a lighted headlight and lighted

 

taillight. The requirements of this subdivision are in addition to

 

any applicable requirements of section 81131(8).81131(9).

 

     (d) Unless equipped with a braking system that may be operated

 

by hand or foot, capable of producing deceleration at 14 feet per

 

second on level ground at a speed of 20 miles per hour; a brake

 

light, brighter than the taillight, visible when the brake is

 

activated to the rear of the vehicle when the vehicle is operated

 

during the hours of 1/2 hour after sunset and 1/2 hour before

 

sunrise; and a throttle so designed that when the pressure used to

 

advance the throttle is removed, the engine speed will immediately

 

and automatically return to idle.

 

     (e) In a state game area or state park or recreation area,

 

except on roads, trails, or areas designated for this purpose; on

 

state owned lands under the control of the department other than

 

game areas, state parks, or recreational areas where the operation

 

would be in violation of rules promulgated by the department; in a

 

forest nursery or planting area; on public lands posted or

 

reasonably identifiable as an area of forest reproduction, and when

 

growing stock may be damaged; in a dedicated natural area of the

 

department; or in any area in such a manner as to create an erosive

 

condition, or to injure, damage, or destroy trees or growing crops.

 

However, the department may permit an owner and guests of the owner

 

to use an ORV within the boundaries of a state forest in order to

 

access the owner's property.

 

     (f) On the frozen surface of public waters within 100 feet of

 

an individual not in or upon a vehicle, or within 100 feet of a

 

fishing shanty or shelter or an area that is cleared of snow for

 

skating purposes, except at the minimum speed required to maintain

 

controlled forward movement of the vehicle, or as may be authorized

 

by permit in special events.

 

     (g) Unless the vehicle is equipped with a spark arrester type

 

United States forest service approved muffler, in good working

 

order and in constant operation. Exhaust noise emission shall not

 

exceed 86 Db(A) or 82 Db(A) on a vehicle manufactured after January

 

1, 1986, when the vehicle is under full throttle, traveling in

 

second gear, and measured 50 feet at right angles from the vehicle

 

path with a sound level meter that meets the requirement of ANSI

 

S1.4 1983, using procedure and ancillary equipment therein

 

described; or 99 Db(A) or 94 Db(A) on a vehicle manufactured after

 

January 1, 1986, or that level comparable to the current sound

 

level as provided for by the United States environmental protection

 

agency when tested according to the provisions of the current SAE

 

J1287, June 86 test procedure for exhaust levels of stationary

 

motorcycles, using sound level meters and ancillary equipment

 

therein described. A vehicle subject to this part, manufactured or

 

assembled after December 31, 1972 and used, sold, or offered for

 

sale in this state, shall conform to the noise emission levels

 

established by the United States environmental protection agency

 

under the noise control act of 1972, 42 USC 4901 to 4918.

 

     (h) Within 100 feet of a dwelling at a speed greater than the

 

minimum required to maintain controlled forward movement of the

 

vehicle, except on property owned or under the operator's control

 

or on which the operator is an invited guest, or on a roadway,

 

forest road, or forest trail maintained by or under the

 

jurisdiction of the department, or on a road or street on which ORV

 

use is authorized under section 81131(2), (3), or (5), or (8).

 

     (i) In or upon the lands of another without the written

 

consent of the owner, the owner's agent, or a lessee, when required

 

by part 731. The operator of the vehicle is liable for damage to

 

private property, including, but not limited to, damage to trees,

 

shrubs, or growing crops, injury to other living creatures, or

 

damage caused through vehicle operation in a manner so as to create

 

erosive or other ecological damage. The owner of the private

 

property may recover from the individual responsible nominal

 

damages of not less than the amount of damage or injury. Failure to

 

post private property or fence or otherwise enclose in a manner to

 

exclude intruders or of the private property owner or other

 

authorized person to personally communicate against trespass does

 

not imply consent to ORV use.

 

     (j) In an area on which public hunting is permitted during the

 

regular November firearm deer season from 7 a.m. to 11 a.m. and

 

from 2 p.m. to 5 p.m., except during an emergency or for law

 

enforcement purposes, to go to and from a permanent residence or a

 

hunting camp otherwise inaccessible by a conventional wheeled

 

vehicle, to remove from public land a deer, elk, or bear that has

 

been taken under a valid license; except for the conduct of

 

necessary work functions involving land and timber survey,

 

communication and transmission line patrol, and timber harvest

 

operations; or except on property owned or under control of the

 

operator or on which the operator is an invited guest. A hunter

 

removing game under this subdivision may leave the designated trail

 

or forest road only to retrieve the game and shall not exceed 5

 

miles per hour. A vehicle registered under the code is exempt from

 

this subdivision while operating on a public highway or public or

 

private road capable of sustaining automobile traffic. A person

 

holding a valid permit to hunt from a standing vehicle issued under

 

part 401, or a person with a disability using an ORV to access

 

public lands for purposes of hunting or fishing through use of a

 

designated trail or forest road, is exempt from this subdivision.

 

An individual holding a valid permit to hunt from a standing

 

vehicle issued under part 401, or a person with a disability using

 

an ORV to access public lands for purposes of hunting or fishing,

 

may display a flag, the color of which the department shall

 

determine, to identify himself or herself as a person with a

 

disability or an individual holding a permit to hunt from a

 

standing vehicle under part 401.

 

     (k) Except as otherwise provided in section 40111(3) or (4),

 

while transporting on the vehicle a bow unless unstrung or encased,

 

or a firearm unless unloaded and securely encased, or equipped with

 

and made inoperative by a manufactured keylocked trigger housing

 

mechanism.

 

     (l) On or across a cemetery or burial ground, or land used as

 

an airport.

 

     (m) Within 100 feet of a slide, ski, or skating area, unless

 

the vehicle is being used for the purpose of servicing the area or

 

is being operated pursuant to section 81131(2), (3), or (5).

 

     (n) On an operating or nonabandoned railroad or railroad

 

right-of-way, or public utility right-of-way, other than for the

 

purpose of crossing at a clearly established site intended for

 

vehicular traffic, except railroad, public utility, or law

 

enforcement personnel while in performance of their duties, and

 

except if the right-of-way is designated as provided for in section

 

81127.

 

     (o) In or upon the waters of any stream, river, bog, wetland,

 

swamp, marsh, or quagmire except over a bridge, culvert, or similar

 

structure.

 

     (p) To hunt, pursue, worry, kill, or attempt to hunt, pursue,

 

worry, or kill an animal, whether wild or domesticated.

 

     (q) In a manner so as to leave behind litter or other debris.

 

     (r) In a manner contrary to operating regulations on public

 

lands.

 

     (s) While transporting or possessing, in or on the vehicle,

 

alcoholic liquor in a container that is open or uncapped or upon

 

which the seal is broken, except under either of the following

 

circumstances:

 

     (i) The container is in a trunk or compartment separate from

 

the passenger compartment of the vehicle.

 

     (ii) If the vehicle does not have a trunk or compartment

 

separate from the passenger compartment, the container is encased

 

or enclosed.

 

     (t) While transporting any passenger in or upon an ORV unless

 

the manufacturing standards for the vehicle make provisions for

 

transporting passengers.

 

     (u) On adjacent private land, in an area zoned residential,

 

within 300 feet of a dwelling at a speed greater than the minimum

 

required to maintain controlled forward movement of the vehicle

 

except on a roadway, forest road, or forest trail maintained by or

 

under the jurisdiction of the department, or on a road or street on

 

which ORV use is authorized under section 81131(2), (3), or (5), or

 

(8).