Questions about ATV laws put brakes on ordinance

The Fredonia Village Board delayed a decision on whether to allow all terrain and utility task vehicles on village streets earlier this month following advice from Village Attorney Johnathan Woodward that the municipality could not enforce an ATV ordinance more stringent than defined in state law.

Woodward said that means an ordinance that bans open intoxicants or requires operators have a valid driver’s license or liability insurance is unenforceable. However, he acknowledged it is an untested theory since other municipalities that have approved stringent ordinances, including the villages of Belgium and Cedar Grove, have not had them challenged in court as far as he is aware.

State law allows anyone older than 12 years old who has passed an ATV operation course to drive the vehicles on public roads and trails. Children are required to be accompanied by an adult.

  Trustee Don Dohrwardt, who has opposed allowing ATVs, said Woodward’s advice makes allowing ATVs an “all or nothing” question.

“I don’t want to add anything we can’t enforce,” he said.

Trustee Kurt Meyle Sr. disagreed.

“The other communities, they have a dog in it, too,” Meyle said. “They were courageous enough to do it. I guess I don’t see the problem.”

Village Marshal Eric Leet said he was initially supportive of the Lakeshore ATV/UTV Club’s proposed ordinance, which required liability insurance and a ban on open intoxicants.

But after receiving Woodward’s advice that neither could be enforced, Leet said, “things kind of went off the rails for me.”

“If attorney Woodward is correct, then there is nothing we could pass that would prevent a multiple offense convicted drunk driver with a revoked license from getting into his uninsured UTV, cracking a can of beer, and driving down to one of the village taverns,” Leet wrote in a letter to the board. “I hope we all would agree that is something we should be able to prohibit.”

Leet said he is also concerned about adding traffic to Fredonia Avenue — “one of only four east-west corridors in Ozaukee County.”

While drunken driving laws apply to ATVs, it is a “totally siloed off category,” Woodword said, giving the example of a driver with nine previous convictions and a suspended license.

If that driver is convicted of operating an ATV under the influence, then the driver would receive only a ticket. If they get convicted of driving an ATV under the influence another time within five years, then they would receive a misdemeanor with a maximum of six months in jail. Past that point, however, being convicted driving an ATV under the influence never becomes a felony like it does for driving a normal vehicle, Woodward said.

“Just as we can’t impose different licensing requirements for people to drive cars, we can’t impose different licensing requirements for people to drive ATVs,” Woodward said. “If this is the hang up, I think those are things that need to be addressed in Madison.”

Woodward said if the village attempted to enforce a driver’s license requirement for ATV operation, it would create a legal gray area — since driving with a revoked license is usually a felony, but in this case it would simply be a village ordinance.

If a deputy arrested someone for driving with a revoked license while operating an ATV, the village could be the target of a wrongful arrest lawsuit, he said.

“This is going to sound coarse. But we’ve already spent around $3,000 to get here tonight,” Dohrwardt said, noting the costs of a prolonged court battle resulting from attempting to enforce a potentially unenforceable ordinance could be in the hundreds of thousands of dollars.

“Could we afford to?” he said.

Dohrwardt said he would be more supportive of allowing the vehicles if only members of the Lakeshore ATV/UTV Club were on the road.

“I am worried about the idiots. I am a worst-case scenario guy,” Dohrwardt said.

Club member Kevin Peiffer said many of the board’s fears are unjustified.

“I think what you’d find if you gave us this chance, is that these problems aren’t piling up (in municipalities that allow ATVs.) We geared up for problems but they never came,” he said, adding the board has the ability to revoke the ordinance if problems do arise.

The towns of Saukville and Port Washington have ATV ordinances with no additional restrictions, both of which receive Woodward’s counsel.

The question of how to regulate ATV operation is being asked not only by the Fredonia board, Leet said.

“The questions are troubling. I talked today with a deputy at the Sheriff’s Office and they don’t know what to do either,” he said.

Dohrwardt said he would prefer to have no ATVs in Fredonia, no matter what.

“Something I can’t fathom is why you have all these other communities and you have to have Fredonia’s streets as your playground,” he said.

The board will decide on the ordinance at its second meeting in September, which is expected to be held on Sept. 19.