The council chambers at Sedona City Hall were packed to overflowing on the afternoon of Tuesday, May 23, for a discussion of Mayor Scott Jablow’s proposed ban on OHV use on city streets. More than a hundred people showed up to watch the city council consider the ordinance.
Jablow reduced the normal time for public comments from three minutes to two minutes per person for this agenda item.
Legal Justification
City Attorney Kurt Christianson told the council that he believed the city’s existing police powers under Arizona Revised Statutes §28-626, §28-981, §28-982 and §28-1174 are sufficient to allow the city to implement the ordinance.
Attorney Adam Shelton, of the Goldwater Institute, sent the city a letter on May 22 arguing that per ARS §28- 626, local authorities may not establish regulations in conflict with that chapter of the title, which permits OHV operation on highways.
Shelton also informed the city that deferring the legality of OHVs being driven on streets to a manufacturer’s warning would be an unconstitutional delegation of authority to a private entity.
Christianson did not address either of Shelton’s legal arguments, nor did council request him to do so. He did not address the ordinance’s potential conflicts with Article 2 of the Constitution of Arizona and the due process clause of the U.S. Constitution.
Supporters: OHVs are Dangerous
Nine people spoke in favor of the ordinance and 16 spoke against it. Those in favor discussed their personal bad experiences with OHVs, while most of those opposed spoke on the ban’s potential legal issues and effects on businesses and residents.
“I drive Dry Creek Road, Boynton Pass and Canyon roads to work,” said Carla Williams, vice president of Keep Sedona Beautiful. “I have firsthand experience with OHVs dangerously passing.” She added that in 40 years of living in Alaska, she “never saw an OHV on a paved road in a city.”
“The most fundamental responsibility of any level of government is to provide for the safety and well-being of residents,” KSB President Craig Swanson said. “Responsible governments work proactively.”
“I hear about those who drive unsafe OHVs on public roads, that they have a right to do so because they assume the personal risk … why do I have to assume the risk that I’ll be struck by an ATV or UTV driver?” Broken Arrow resident Carl Jackson asked.
Janet Johnson, who lives near Bear Mountain outside city limits, argued that the ordinance would be a good thing for her area “in terms of reducing speed and dust and the number of trips back and forth through 152C.”
The ordinance would only apply within city limits.
“Last year, I completed an online survey about OHV noise in the city of Sedona,” Guy Lamunyon said, before citing a poll he conducted on Facebook.
“I’ve had many instances, especially on Dry Creek Road, where the OHVs have passed unsafely,” Sandra Beck said.
Shaeri Richards, of the Broken Arrow area, compared the proposed ban to banning smoking and suggested “a place where all of the ATVs could go where they could smoke together.”
“I almost got in an accident pulling off of Roadrunner here with an ATV cutting me off, and all I could think was, oh, I’m going to be the accident for everybody to look at during this meeting,’” Richard Kepple said.
“The ban of the use of the OHVs is consistent with the community values,” Uptown resident Mark TenBroek said. “I had an interaction in Sedona yesterday, driving north on Soldier Pass Road, there was a convoy of OHVs turning left out of Posse Grounds. The first one stopped, the others did not.”
Opponents: Ban Isn’t About Safety
“I completely object to the city of Sedona’s passing this ordinance in the name of safety,” said Allyson Stevenson, of Sedona. “According to the Insurance Institute of Highway Safety, in 2021, there were 45 OHV deaths nationwide on non-interstate minor roads in urban areas … Moving to the year 2022, National Highway Traffic Safety Administration reports total vehicle deaths of 43,000, when that same year, there were 419 OHV deaths reported.”
How many of these deaths “occurred here, on Sedona city streets?” Stevenson asked. “None. Not one.”
Stevenson also reminded the council that in May 2012, there were five motorcycle accidents in Sedona in 13 days. It is still legal to drive a motorcycle on Sedona city streets.
“Think about your community as a whole,” said Andrew Rippy, of Sedona Can-Am. “Families destroyed, tax dollars gone and driving all OHV owners out of the city. If this is about safety, give us the data you have collected with local law enforcement.”
“If traffic and public safety is a concern, look at yourselves,” Taylor Joy invited the council. “I have a list of violations that are public record that are committed by [members of] this council. Speeding? Guilty. Speeding? Guilty. Stop required for alley or driveway? Guilty. Failed to yield left turn? Guilty. Speeding, 66 [mph] in a 45 [mph]? Guilty. Failure to obey highway sign? Guilty. Speeding, 50 in a 30? Guilty. And my personal favorite, operator of an uninspected vehicle? Guilty.”
Joy added that he and his fiancee, who are employed in the OHV industry, will sue the city for damages if they lose their jobs due to passage of the ordinance.
“As for law enforcement officers, you have been told this ordinance is illegal,” Joy said. “Are you willing to break your oath, or make your officers break their oath, just because the city tells you to?”
“Your ordinance would push vehicles to the highway to do higher speeds, which would basically negate your whole safety issue,” said Brian Carstens, of Sedona ATV.
“At the beginning of the meeting, the mayor said this ordinance is strictly about safety,” said Michael Higby, of Munds Park. “But over and over again, all I’ve heard is get rid of the OHVs.” He reminded the council that “there’s a lot of people here that drive their golf carts back and forth to the golf courses.”
“Getting OHVs off the city streets is not an issue that revolves around safety,” Kayla Watson said. “This ordinance does nothing but single out local business owners and the joy they bring to so many.”
“I see that this ban has already had a direct influence on lawful trade and commerce in the city,” Dan Candler of Outback ATV said. “I also heard that the League of [Arizona] Cities and Towns declined to support the city of Sedona in this matter … If there’s a safety problem, you would have firsthand, local geographical knowledge.”
Candler claimed that Christianson said a year and a half ago that the only way to make something stick is to show that there’s a tie to public safety, adding, “So it sound’s like it’s been a witch hunt for a long, long time.”
“The city is definitely overstepping their bounds when we know that the issue is not safety,” James Custer of Red Rock ATV said. “What the city’s trying to do is unethical, it’s unlawful and it’s a reckless use of city funding.”
“Banning OHVs from the streets would not necessarily make the roads safer if other vehicles are still allowed to operate,” Marcus Valenzuela said.
“So far, the majority of the citizens speaking for this ordinance are just concerned about the about the vehicles being a nuisance to them and fighting to rid them altogether,” Savannah Harliss said.
“The city has put forth an unlawful ordinance in a very negligent manner,” said Dave Swartout, of Sedona Off Road Center. “At this point the companies have real damages caused by negligent misinformation that the city has been telling people about safety.”
“There is no pattern and no history that I’ve seen so far in the city of Sedona or in the state of Arizona that OHV tire failure is a health and safety concern,” Kate Joy said. “When data and history pattern is overwhelming, then you take action.” She reminded the crowd that Jablow should know this from his law enforcement background in accident investigation.
“It’s not a safety issue,” former Vice Mayor John Martinez said. “This is a back-end approach to try and get OHVs off forest land. That is where the biggest complaint is.”
After Jablow tried to cut off Martinez, the former vice mayor noted that Sedona Area Veteran & Community Outreach would be unable to install American flags along State Route 89A for patriotic holidays, as the group uses an OHV to carry equipment.
“It’s the city’s way of skirting around the fact that they want to get rid of them,” Lori Stewart said. As for residents of Bear Mountain outside the city, “those people bought a house on a dirt road and it’s just part of the gig.”
“I don’t believe this ordinance can survive as written,” said Nena Barlow, of Barlow Adventures, a Jeep rental company. “I think there are many legal holes in it.”
‘Unintended Consequences’
All members of the council stated their support for the ordinance as written while also expressing concern over “unintended consequences” and claiming that they did not want to put local companies out of business.
“We have to take proper precautions to protect … whether the driver is knowing or unknowing of the unsafe nature of an OHV on paved roads, I feel we do need to take action,” Councilman Brian Fultz said.
“I never saw this ordinance as, ‘hey, let’s get rid of OHVs,’” Councilwoman Melissa Dunn claimed. “When a manufacturer says it’s not safe to do something, there’s a Darwinian principle involved when you do it anyway, and I would really like us not to be discovering how many are hitting that Darwinian principle.”
Psychological reactance is the human behavioral tendency to respond to a loss or potential loss of freedom, defined as the ability to engage in a particular behavior, by attempting to restore that freedom.
“We are not in the business of passing illegal ordinances,” Vice Mayor Holli Ploog said.
Ploog suggested that Sedona’s OHV businesses change their business model: “We need to understand from your perspective what we can do to make this transition, if that’s what happens, easier for you.”
“I think there is room in the current statutes for the city to take action,” Councilman Pete Furman said.
“It’s a cruel irony that we talk about getting cars off the road and about reducing reliance on motor vehicles, and now we’re talking about how to accommodate big trucks and big trailers,” Councilwoman Jessica Williamson said.
‘Brinksmanship’
Although the council members were all in favor of the ordinance, they all qualified their support with references to finding middle ground.
“The time for us to negotiate on this is now,” Furman said. “Let’s have this negotiation. Let’s find the middle ground here related to safety and the other things.”
“I’m hoping we can come to a resolution,” Jablow said. “We don’t have to push this for June. We might push it off, we might not. Let’s see what we can come up with.”
To heighten what Furman described as a feeling of “brinksmanship,” Jablow suggested that the city may withdraw from the Greater Sedona Recreation Collaborative, telling the group’s representatives, “Quite honestly, I don’t know if you’re going to have the city’s [continued engagement]. You might, that’s up to the councilors and staff.”
