Opinion
November 2, 2011
Mr. Rian W. Radtke Corporation Counsel Trempealeau County Post Office Box 67 Whitehall, WI 54773-0067
Dear Mr. Radtke:
¶ 1. Your predecessor advised that a fifty-member private All Terrain Vehicle ("ATV") Club operating within Trempealeau County has requested the county board to designate three short sections of county trunk highways as ATV routes. Your predecessor was concerned that such designations would violate the public purpose doctrine.
BACKGROUND
¶ 2. The club has developed a number of trails on privately-owned land. Such trails can only be used by club members or their invitees. Other persons must pay the club a fee to use the club's trails.
¶ 3. The club has persuaded at least two towns to designate certain sections of town roads as ATV routes and has also persuaded at least one city to designate certain sections of city streets as ATV routes. In each such case, the club indicated that the reason for requesting the municipal designations was that it had been unable to secure the permission of private landowners to connect the club's off-road trails. The municipally-designated, publicly-owned ATV routes connect the club's private off-road trails.
¶ 4. The club has made a similar request to the county to designate three short sections of county roads as ATV routes. The longest of these sections is 1.3 miles. The designated portions of the county roads would be open to the public as ATV routes. In response to a request for further information, you indicate that it is very unlikely that persons who are not members or invitees of the club would trailer their ATVs to the county highway segments for which designations have been sought and use their ATV's on those segments because they are so short.
¶ 5. In response to the request for further information, you have also advised that insofar as you have been able to ascertain no county funds or resources would be expended in designating the trails or in maintaining the trails after they are designated. All signage and road approaches would be paid for and maintained by the club at its sole expense. The county highway commissioner has advised you that ATV traffic on the county highway segments would not result in additional wear and tear upon the road segments such that additional county expenditures for maintenance or repair would be required.
¶ 6. A proposed county ordinance would permit the county board to grant the designations requested by the private club. Relevant sections of the proposed county ordinance provide as follows:
SECTION 1. . . .
. . .
B. Following due consideration of the recreational and economic value to connect trail opportunities and weighted against protecting the safety of motorists by maintaining the road edge, surface and integrity of the right-of-way, public safety, liability aspects, terrain involved, traffic density and history of automobile traffic, this ordinance has been created pursuant to County Board authority under Wis. Statutes 59.02, 23.33(11)(a) and (am), and 23.33(8).
. . .
D. Private trails. In addition to establishing ATV routes to connect ATV trails as defined in Section 23.33(1)(d), the County Highway Department may also establish routes for the purpose of connecting off-road trails established by private entities for the exclusive use of their members, their invitees or other persons paying a fee for use of the trail. However, the use of the route along the roadway may not be limited to those persons approved by or paying a fee to the private entity.
. . .
SECTION 4. . . .
. . .
C. The permittee shall furnish all materials, do all work, and pay all costs in connection with the construction or maintenance of the approach or crossing and its appurtenances within the right-o[f]-way. The County shall not give, sell, or otherwise provide any equipment, labor or materials for the project.
D. Maintenance of approaches or crossings is the responsibility of the organization and/or the person signing the permit application. The Highway Department will monitor the approaches/crossings on a periodic basis. The results of these reviews may indicate a periodic need for maintenance. In such case the Highway Department will notify the person signing the application of those needs and the permittee will have 10 days to complete the maintenance or the route/crossing may be closed until such time as the maintenance is done and approved by the Department.
. . .
SECTION 5. . . .
A. Initial installation. During the Highway Department review of the route or crossing, the Department will determine the necessary signage on the route or crossing. At such time as the permit is approved the Highway Department shall install the necessary signage. The projected costs for signage and installation shall be paid by the permittee prior to commencing construction on the approach or crossing. . . .
B. Sign Maintenance. The Highway Department will maintain the signage necessary for the route/crossing and bill the permittee for that maintenance. Should the permit[t]ee fail to pay for the maintenance then the route will be closed and sign[age] removed until such time as the removal costs, the sign maintenance costs, and the projected resigning costs are paid in full.
QUESTION PRESENTED AND BRIEF ANSWER
¶ 7. I have reworded your predecessor's question, as follows: If the primary purpose of designating short county highway segments as ATV routes is to allow a private organization to enhance its system of trails that benefit club members and their invitees, would such designations violate the public purpose doctrine if no county resources are expended and no county expenditures occur as a result of those designations?
¶ 8. In my opinion, the answer is no. The proposed ordinance could be improved to assure that no county resources are expended and that no county expenditures occur as a result of the designations.
ANALYSIS
¶ 9. Wisconsin Stat. § 23.33(8)(b) provides explicit authority to counties to designate county roads as ATV routes: "Routes. A town, village, city or county may designate highways as all-terrain vehicle routes." Wisconsin Stat. § 23.33(8)(a) provides that "[t]he department [of natural resources] may establish standards and procedures for certifying the designation of all-terrain vehicle routes and trails." The standards referred to in Wis. Stat. § 23.33(8)(a) are found in Wis. Admin. Code § NR 64.12. Those standards are largely prohibitory. They provide no affirmative direction to municipalities as to what types or sections of streets, roads, or highways should be designated as ATV routes.
¶ 10. The public purpose doctrine is derived from the Wisconsin Constitution. See Libertarian Party v. State, 199 Wis. 2d 790, 809, 546 N.W.2d 424 (1996) (per curiam). It was thoroughly discussed in OAG 2-01 (February 14, 2001). It "prohibits the use of public funds, public equipment or public supplies to provide a benefit that is primarily private, rather than public, in nature." OAG 2-01, at 1. See 76 Op. Att'y Gen. 69 (1987); State ex rel. Bowman v. Barczak, 34 Wis. 2d 57, 62, 148 N.W.2d 683 (1967). "The essence of the doctrine, that public funds may be expended only for public purposes, rests on the theory that governmental power should be used for the benefit of the entire community." Bishop v. City of Burlington, 2001 WI App 154, ¶ 10, 246 Wis. 2d 879, 631 N.W.2d 656; Barczak, 34 Wis. 2d at 62-63.
¶ 11 — "Because the public purpose doctrine is a constitutional rule, it limits the authority conferred on counties and other municipalities by statute." OAG 2-01, at 1-2. "Even where statutory authority for a county's action exists, the county must be cautious not to exercise that authority in a way that contradicts the public purpose doctrine." OAG 2-01, at 2. Nevertheless, "Wisconsin municipalities have traditionally been given wide discretion to determine whether a public expenditure is warranted due to public necessity, convenience, or welfare. As such, the public purpose doctrine has been broadly interpreted." Town of Beloit v. County of Rock, 2003 WI 8, ¶ 30, 259 Wis. 2d 37, 657 N.W.2d 344 (footnote omitted).
¶ 12. To satisfy the public purpose doctrine, "the benefit to the public must be direct and not remote." Bishop, 246 Wis. 2d 879, ¶ 10. See Alexander v. City of Madison, 2001 WI App 208, ¶ 7, 247 Wis. 2d 576, 634 N.W.2d 577. "If any public purpose can be conceived which might rationally justify the expenditure, the constitutional test is satisfied." Bishop, 246 Wis. 2d 879, ¶ 11. "[N]o public purpose exists only if it is clear and palpable that there can be no benefit to the public." Id.
¶ 13. Section 1.B. of the proposed ordinance indicates that the county board will engage in "due consideration of the recreational and economic value to connect trail opportunities" and that any proposed trail designation will be "weighted against protecting the safety of motorists by maintaining the road edge, surface and integrity of the right-of-way, public safety, liability aspects, terrain involved, traffic density and history of automobile traffic[.]" Courts are required to accord deference to this statement of public purpose because "local governments are often in the best position to determine the needs of the public in that locality[.]" Town of Beloit, 259 Wis. 2d 37, ¶ 30.
¶ 14. "`[A]nything calculated to promote the education, the recreation or the pleasure of the public is to be included within the legitimate domain of public purposes.'" Libertarian Party, 199 Wis. 2d at 820, quoting Capen v. City of Portland, 228 P. 105, 106 (Or. 1924). Designation of a county highway as an ATV route is not impermissible solely because the ATV route connects one or more private snowmobile trails. "The fact that a private entity receives direct benefit from an expenditure of public funds does not render the expenditure unconstitutional." Bishop, 246 Wis. 2d 879, ¶ 10. The designation of ATV routes normally does serve an independent public purpose, which is to provide the general public with recreational opportunities.
¶ 15. Although you indicate that the recreational value of these designations to the general public would be slight, the mandate of the public purpose doctrine is that "public appropriations may not be used for other than public purposes." Town of Beloit, 259 Wis. 2d 37, ¶ 27. See 74 Op. Att'y Gen. 25, 27 (1985): "Although the doctrine's history is admittedly confused, its present day meaning is quite clear: public funds may be spent only for public purposes." The proposed ordinance is intended to insure that no county resources are expended and that no county expenditures occur where designations connecting private trails are made. Your factual investigation indicates to you that that would be the case. You note that all signage and road approaches would be paid for and maintained by the club at its sole expense. The county highway commissioner also has advised you that ATV traffic on the county highway segments will not result in any county expenditures. Because the public purpose doctrine prohibits only the expenditure of public funds or resources by the county, the designations would not violate the public purpose doctrine if no such expenditures occur.
¶ 16. The proposed ordinance does not explicitly require reimbursement for the expenditure of staff time in all situations. Under the proposed ordinance, the county also assumes a risk of non-payment. See, e.g., Proposed Ordinance, sec. 5.B. Even under the proposed ordinance, the resulting expenditure of county funds or county resources might be de minimis in most cases. See Wisconsin Dep't of Revenue v. William Wrigley, Jr. Co., 505 U.S. 214, 231 (1992). Nevertheless, it may be preferable to amend the proposed ordinance to require the applicant or permittee to post a bond requiring indemnification of the county for all of the costs resulting from a particular designation, including but not limited to staff time. Requiring a bond to be posted would also avoid the risk of future non-payment and would minimize the possibility of legal challenges to any designations that might be made.
CONCLUSION
¶ 17. I therefore conclude that even if the primary purpose of designating short county highway segments as ATV routes is to allow a private organization to enhance its system of trails that benefit club members and their invitees, such designations would not violate the public purpose doctrine if no county resources are expended and no county expenditures occur as a result of those designations.
Sincerely,
J.B. VAN HOLLEN
Attorney General
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___ Op. Att'y Gen. ___ (2010) Attorney General Van Hollen, Wisconsin Department of Justice October 13, 2010.
LAVERNE MICHALAK, Corporation Counsel
Attorney General Van Hollen Wisconsin Department of Justice P.O. Box 7857 Madison, WI 53707-7857
Re: Request for Opinion Concerning the Designation of ATV Routes
Gentlemen:
Trempealeau County has been asked to designate parts of several County highways as an All Terrain Vehicle (ATV) route for the benefit of a private ATV Club.
My question is whether a County is permitted to allow ATV use on a County highway if the sole purpose of designating the highway as a route is to allow a private organization to enhance its system of trails for the benefit of its members and their invitees? I am inclined to believe that a County is not permitted to do this, mainly for reasons relating to the provisions of Section 23.33 Wis. Stats. and the Public Purpose Doctrine.
Background:
A privately organized, governed and financed ATV Club in our County with approximately 50 members has developed a number of off-road private trails on privately owned land to be used by ATVs operated by its members or their invitees. In addition to these off-road trails, the club has persuaded two towns and one city to designate certain town roads and city streets as ATV routes, presumably under the authority of Section 23.33(8)b. The road segments allow the off-road trails to be connected in those situations where the club says it has not been able to get landowner's permission for off-road connections of its trail network.
The County has now been approached by the club with a request to designate three sections of County Trunk Highway as an ATV route, the longest section being 1.3 miles.
By a three to two vote our Highway Committee has expressed an interest in granting the request and asked me to prepare an ordinance for the County Board's approval which would authorize the County to create ATV routes on County roads. I am enclosing a copy of the proposed ordinance. Section 1.D. of the ordinance would allow ATV routes to be created for the benefit of private groups. I have asked the County Board to set aside action on this ordinance pending a response from your office. I expect our Board will be pressed to reach a decision at its March 21, 2011 meeting so the ATV Club can have its trail system open by the April 15th starting date provided in the ordinance.
Legal Analysis:
Wisconsin Statutes provide that generally ATVs are not allowed to operate on highways (Section 23.33(4)(b)). The statutes contain a number of exceptions, including 23.33(4)(d)4d which allows them on roadways designated as ATV routes. Section 23.33(8)(b) allows counties, among others, to designate a highway as an ATV route. Subsection (11) provides for local ordinances regulating ATVs on County designated routes.
Generally, counties only have such authority as is granted by the legislature in the statutes. Section 23.33(8)(c) provides that counties may designate corridors for use as all terrain vehicle trails on lands it has obtained by lease or easement. "All terrain vehicle trail" is defined at Section 23.33(1)(d) as marked corridors which are designated by the government for use by ATVs. There are no ATV trails designated by the County or any other unit of government anywhere near the short segments of County highway proposed as ATV routes. Consequently, these unconnected segments of County highways have no value as ATV routes to the public.
The only recreational value of these routes is to members of the club or their invitees who have the privilege of using the private off-road trails of the club, which are not ATV trails as defined in the statutes. No public areas are being connected or served by these "routes". When government sponsored activities are authorized by the statutes such activities or programs are generally limited to those which serve a public purpose. (Discussion of public purpose doctrine at 80 OP Atty. Gen. Wis. 341 (1992), 67 OP Atty. Gen. Wis. 304 (1978) and others).
Highway ATV routes are established under the authority and supervision of the County. As a result, I believe the County has exposure for liability in the event of accidents, especially if it is not authorized to establish such routes.
Even assuming Section 23.33 can be construed to give counties authority to create highway ATV routes where no off-road public ATV trails exist, I have been unable to find any case law or other authority that specifically addresses a County's authority to provide this type of private benefit in light of the public purpose doctrine. I would appreciate your legal opinion on this issue.
Sincerely yours,
LaVerne Michalak
Corporation Counsel
LM:sj
Ordinance No._________ Trempealeau County Ordinance Establishment of ATV Highway Crossing or Route
The County Board of Supervisors of the County of Trempealeau, does ordain as follows:
SECTION 1: AUTHORITY AND GENERAL
A. State Traffic Laws Adopted. Except as otherwise specifically provided in this code, the statutory provisions in Chapter 23, 340 to 348, and 350 of the Wisconsin Statutes, establishing definitions and regulations with respect to all terrain vehicles (ATV's), and Chapter NR 64, All Terrain Vehicles, WDNR, exclusive of any provisions therein relating to penalties to be imposed and exclusive of any regulations for which the statutory penalty is a fine or term of imprisonment, are hereby adopted and by reference made a part of this chapter as if fully set forth herein. Unless otherwise provided in this ordinance, any act required to be performed or prohibited by any statute incorporated herein by reference is required or prohibited by this ordinance. Any future amendments, revisions or modifications of the statutes incorporated herein are made a part of this chapter in order to secure uniform statewide regulation of ATV's.
B. Following due consideration of the recreational and economic value to connect trail opportunities and weighted against protecting the safety of motorists by maintaining the road edge, surface and integrity of the right-of-way, public safety, liability aspects, terrain involved, traffic density and history of automobile traffic, this ordinance has been created pursuant to County Board authority under Wis. Statutes 59.02, 23.33(11)(a) and (am), and 23.33(8).
The County Highway Department oversees the ATV Route/Crossing permit process.
C. ATV routes and proposed routes on or across a highway shall be investigated and monitored to insure that they have been authorized and that they do not adversely affect the use of the highway or unreasonably interfere with the peaceful enjoyment of private or public property.
D. Private trails. In addition to establishing ATV routes to connect ATV trails as defined in Section 23.33(1)(d), the County Highway Department may also establish routes for the purpose of connecting off-road trails established by private entities for the exclusive use of their members, their invitees or other persons paying a fee for use of the trail. However, the use of the route along the roadway may not be limited to those persons approved by or paying a fee to the private entity.
SECTION 2: DESIGNATING ALL-TERRAIN VEHICLE ROUTES
A. ATV Routes. County trunk highways may be designated as ATV routes only with the approval of the Highway Committee. The Highway Committee shall approve any modification to a designated ATV route. A copy of those ATV routes, along with a map showing their location, shall be kept on file at the Highway Department. The County Highway Department shall retain the sole authority for the closure or termination of any ATV route on the County Trunk Highway System.
(1) ATV Route On Roadway. All ATVs shall operate on the roadway and not on the shoulder, ditch or other parts of the highway right-of-way on a signed ATV route.
(2) ATV Route Violations — Penalty. The penalty for operating an ATV off the roadway of a designated ATV route (i.e., the paved surface), other than for direct access from a trail to a roadway, or operating outside of permitted times for route use, or operating in excess of permitted speed, shall result in a forfeiture of not less than $25.00 or more than $250.00, plus court costs.
SECTION 3: PERMIT PROCESS
A. Any municipality or organization, that desires a route along, or a crossing over, a County Highway may request a route or crossing permit. Anyone requesting a permit shall complete an application in compliance with this policy and the Wisconsin Statutes and file the application with the Highway Department. The Highway Department will review the application using the process in this ordinance. No person shall commence or continue using the County Highway, or request or allow others to commence or continue use of that County Highway, unless a permit has been issued and remains in effect.
B. Procedure to follow in considering a permit for an ATV Route/Crossing:
(1) The Municipality or organized group may apply for a permit. The application shall be filled out completely, signed by a person authorized by the applicant, and returned to the Highway Department
(2) The permit application will be reviewed by the Highway Department for conformance with its policies, the ordinance and with all applicable state, federal, and local laws, regulations, and policies.
(3) At a minimum the application should include:
(a) A map showing the portion of the highway where the route is being requested.
(b) A map showing the trails which lead up to the proposed roadway route.
(c) A statement that the applicant has a lease or some other permission from landowners to use the trails shown on the map.
(d) A statement as to why the highway route is needed and efforts made to establish off-road alternatives, including the names of landowners contacted for that purpose.
(e) If the application is for the use of a road to connect private trails, then include the name of the organization applying, the names and addresses of its officers, the date when the organization was established or incorporated and the number of members.
(4) The County Highway Committee shall have the authority to approve applications for permits under this ordinance. The Highway Committee Chair shall indicate approval by signature before any permit may be issued. The Highway Department will retain a copy of the application on file.
C. Before a highway segment can be considered for designation as an ATV route, the applicant shall demonstrate to the Department and Highway Committee, and the Department and Committee shall determine, that no other practical option as a trail exists. The most important route consideration is the safety of all users: ATV riders, pedestrians, bicyclists, motorcyclists, automobile operators, truck operators and others.
D. The Highway Committee may establish a fee for each permit application which shall apply to all applications. The applicant shall pay to the Highway Department a fee for each permit application according to a fee schedule as established by the County Highway Committee.
E. A permit is valid for construction of a route/crossing within one year of issuance. After one year has expired, the permit will no longer be valid and a new permit must be applied for and issued before construction may be commenced or continued.
F. Permits are good only for the calendar year for which they are issued. Renewal applications must be submitted by March 1 to include any revised list of organization officers or other changes.
G. If the application is approved a permit will be issued. The applicant shall construct any roadway approach or crossing utilizing a pre-approved plan and traffic control procedure explained by an authorized Highway Department employee. Each permit will be valid for one route or crossing location only. The Highway Department shall inspect the site of each route/crossing before and during construction to ensure compliance with requirements.
H. If the application is denied, the Highway Department shall notify the applicant in writing and explain the reason for denial.
SECTION 4: MAINTENANCE AND OTHER RESTRICTIONS OR REQUIREMENTS
A. Time of operation. ATV's shall not be operated on an approved ATV route other than between one half hour before sunrise and one half hour after sunset from April 15th through November 15th.
B. Speed Limits. An ATV shall be operated on a route at a safe speed not to exceed 25 miles per hour unless a reduced speed is otherwise required by State Statute.
C. The permittee shall furnish all materials, do all work, and pay all costs in connection with the construction or maintenance of the approach or crossing and its appurtenances within the right-or-way. The County shall not give, sell, or otherwise provide any equipment, labor or materials for the project.
D. Maintenance of approaches or crossings is the responsibility of the organization and /or the person signing the permit application. The Highway Department will monitor the approaches/crossings on a periodic basis. The results of these reviews may indicate a need for maintenance. In such case the Highway Department will notify the person signing the application of those needs and the permittee will have 10 days to complete the maintenance or the route/crossing may be closed until such time as the maintenance is done and approved by the Department.
E. No revisions or additions shall be made to the route/crossing or its appurtenances on the right-of-way without the written permission of the Highway Committee.
F. The permit shall contain a statement, and be subject to the condition, that all construction and maintenance shall be done subject to the rules and regulations prescribed by the Highway Department and be performed and completed to the Highway Department's satisfaction.
G. Removal of Obstructions. All obstructions in the right-of-way that will impede the safe use of the route are the responsibility of the permittee for removal, including, but not limited to, trees, woody vegetation and rocks.
SECTION 5: ROUTE/CROSSING SIGNAGE
A. Initial Installation. During the Highway Department review of the route or crossing, the Department will determine the necessary signage on the route or crossing. At such time as the permit is approved the Highway Department shall install the necessary signage. The projected costs for signage and installation shall be paid by the permittee prior to commencing construction on the approach or crossing. A route is not open to use until signs are installed.
B. Sign Maintenance. The Highway Department will maintain the signage necessary for the route/crossing and bill the permittee for that maintenance. Should the permitee fail to pay for the maintenance then the route will be closed and signed removed until such time as the removal costs, the sign maintenance costs, and the projected resigning costs are paid in full.
SECTION 6: REVIEW OF DENIAL OF PERMIT
A. If the Highway Department denies a request for a permit under this policy or revokes a permit issued under this policy, the County Highway Committee shall, upon written request by the applicant within 30 days after the denial, review the Highway Department's decision. A written request shall be deemed made when it is received at the Highway Department office.
B. The County Highway Committee shall schedule a hearing at which it will consider such a request, such hearing to be held within 45 days after receipt of the request. The person making the request shall be given notice of that hearing, and at the hearing shall have the opportunity to present evidence to the committee concerning the reasons for the request.
C. Within 30 days after the hearing the County Highway Committee shall make its decision regarding the request. It may reverse, confirm, or modify the decision of the Highway Department. The Highway Department shall thereafter take action in conformance with the committee's decision.
SECTION 7: PENALTIES AND REMEDIES
A. Any person who violates any section of this ordinance or statutes adopted by reference, other than Sec. 2A(1) and (2), and Sec. 4A and 4B of this ordinance, shall pay a forfeiture of not less than $50.00 nor more than $500.00 for each offense. In case of a continuing violation, each day that the violation continues may be considered a separate violation.
B. If it can not readily be determined which individual is directly responsible for a violation of a construction, maintenance or other permit requirement, the person having signed the permit application shall be deemed responsible and cited for violations. A statement to that effect shall appear on the application above the signature line. A failure to pay such forfeiture may form a basis for revocation of a permit.