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County ordinance requiring public university to obtain county health department permit before constructing water well

Northern Michigan University, an institution of higher education covered by Const 1963, art 8,  6, must obey a county ordinance that requires a county health department permit before constructing a water well on its property.

Opinion No. 7063

October 12, 2000

Gary L. Walker
Marquette County Prosecuting Attorney
Courthouse Annex
234 Baraga Avenue
Marquette, Michigan 49855

You have asked whether Northern Michigan University, an institution of higher education covered by Const 1963, art 8,  6, must obey a county ordinance that requires a county health department permit before constructing a water well on its property.

Information supplied with your request indicates that Northern Michigan University (NMU) plans to construct and operate new water wells on its property. The wells will produce water for nonpotable purposes, such as the irrigation of a soccer field on NMU's property and to provide a coolant for NMU's heating plant. NMU is located in Marquette County, which has adopted an ordinance requiring a permit for the construction of all new water wells. NMU has permitted the county to informally inspect the construction of its wells but has declined to obtain a permit from the county as required by the county ordinance. NMU's well contractor has filed the required water well and pump records with the county. Thus, the question remains whether NMU must first obtain water well permits from the county before proceeding with construction of its wells.

Const 1963, art 8,  6, "confers a unique constitutional status on . . . public universities." Federated Publications Inc v Michigan State Univ Bd of Trustees, 460 Mich 75, 84; 594 NW2d 491 (1999). The board of control of a public university is a constitutional corporation and is vested with the entire control of university affairs and property. Eastern Michigan Univ Bd of Control v Labor Mediation Bd, 384 Mich 561, 565; 184 NW2d 921 (1971) (relying on Weinberg v Regents of the Univ of Michigan, 97 Mich 246, 254; 56 NW 605 (1893)).

Although public universities possess significant autonomy, they are not entirely free from all regulation by the Legislature in the exercise of its police power for the welfare of the people of the state. Regents of the Univ of Michigan v Employment Relations Comm, 389 Mich 96, 108; 204 NW2d 218 (1973) (university employees have right to organize under Public Employees Relations Act, without infringing on Board of Regents' constitutional autonomy); Western Michigan Univ Bd of Control v Michigan, 455 Mich 531, 540-541; 565 NW2d 828 (1997) (university's board of control must obey prevailing wage statute, enacted under the police power, in the construction of a student recreational building). See 1 OAG, 1955, No 2227, p 721, 726 (December 9, 1955), which concluded that "it is clear that the legislature can enact laws regarding health, welfare and safety that are binding upon [public universities] in the same manner as they are binding upon the entire community."

For purposes of statutory construction, state universities are "agencies of the state." Marquette County v Northern Michigan Univ Bd of Control, 111 Mich App 521, 525; 314 NW2d 678 (1981) (citing Attorney General ex rel Cook v Burhans, 304 Mich 108; 7 NW2d 370 (1942), and Lucking v People, 320 Mich 495; 31 NW2d 707 (1948)). Whether a state agency is subject to a local regulation is determined by legislative intent. Burt Twp v Dep't of Natural Resources, 459 Mich 659, 663; 593 NW2d 534 (1999); see also Dearden v Detroit, 403 Mich 257, 264; 269 NW2d 139 (1978); and Capital Region Airport Authority v DeWitt Charter Twp, 236 Mich App 576; 601 NW2d 141 (1999). A state agency must obey a local regulatory ordinance unless language in the agency's enabling statute indicates a legislative intent to grant exclusive jurisdiction to that agency. Although the precise term "exclusive jurisdiction" is not required, the legislative intent to grant the state agency exclusive jurisdiction must be clear. Burt Twp, 459 Mich at 669. Additionally, the state statute that gives the local governing body the power to regulate the same subject matter must be examined to determine if the state agency is subject to the local regulation. Burt Twp, 459 Mich at 664, and Dearden, 403 Mich at 264.

As with a state agency, whether a public university is subject to local regulation depends upon the legislative intent expressed in the applicable enabling statute. Chapter 390 of the Michigan Compiled Laws governs the operations of universities and colleges, MCL 390.1 et seq; MSA 15.901 et seq. Section 551 provides for the continuation of Central, Eastern, Northern, and Western Michigan Universities and states that these universities will each be governed by an eight member board of control. Under section 553, a university's board of control has general supervisory power to control and direct university funds. University authority to acquire and develop land, buildings, and other facilities is addressed in section 558, which provides in part that:

A board, after approval by the legislature, may acquire land or acquire or erect buildings, or alter, equip or maintain them, to be used as residence halls, apartments, dining facilities, student centers, health centers, stadiums, athletic fields, gymnasiums, auditoriums, parking structures and other educational facilities.

In Marquette County v Northern Michigan Univ Bd of Control, supra, the Court of Appeals held that section 558 gave Northern Michigan University exclusive jurisdiction over construction of its buildings and other facilities, subject to legislative approval. But in Burt Twp v Dep't of Natural Resources, 227 Mich App 252, 259; 576 NW2d 170 (1997), aff'd 459 Mich 659 (1999), the Court of Appeals declined to follow Northern Michigan University. The Court of Appeals observed that in light of more recent case law, the general language of sections 553 and 558 giving the university the authority to erect campus buildings, would be insufficient to establish that the state entity had exclusive jurisdiction. In affirming the Court of Appeals, the Michigan Supreme Court concluded that without a clear legislative grant of exclusive jurisdiction, a state agency is subject to local regulatory ordinances. Burt Twp, 459 Mich at 668.

In Capitol Region Airport Authority (CRAA), supra, the Court of Appeals followed the Burt Twp court's analysis in determining whether a regional airport authority was subject to local zoning ordinances and to the Land Division Act.1 In CRAA, the Court of Appeals stated that Northern Michigan University and its rule of law had been superseded by Burt Twp. 236 Mich App at 583. In CRAA, a state agency charged with operating a city airport asserted that it did not have to comply with local ordinances or with the Land Division Act. Analyzing applicable aeronautics statutes and the Township Zoning Act2, the court concluded that although the state's Aeronautic Code confers on the CRAA exclusive authority over aeronautical operations at the airport, the authority was not exempt from local land use regulations with respect to its proposed development of its lands for nonaeronautical uses. The court found that:

[N]either of these provisions expresses a legislative intent that the CRAA have exclusive authority over the acquisition, development, sale, or lease of airport land in conjunction with non aeronautical uses. Section 101 speaks only of land related to aeronautical functions. Although 105 authorizes the CRAA to lease airport property for non aeronautical purposes, we find no statutory language evincing a legislative intent for the CRAA to have exclusive jurisdiction over these leases and developments. Section 105 merely authorizes the CRAA to engage in this activity, which is not sufficient to immunize the CRAA from local regulation.

CRAA 236 Mich App at 592-593.

The court also reviewed the Township Zoning Act (TZA) and found "nothing in the TZA that suggests that a township's zoning authority does not extend to nonaeronautical airport development." Id. at 593.

Similarly, the grant of authority to public universities with respect to education and development of their facilities, as found in sections 553 and 558 of Chapter 390, does not include an expression of legislative intent to relieve public universities of their obligations to comply with local health regulations. Section 553 grants to universities the general supervisory power to control and direct their funds. Section 558 authorizes public universities to acquire and develop land, buildings, and other facilities. Although these statutes authorize a university to engage in these activities, their provisions do not express a legislative intent to exempt all university activities from local health regulations.

As noted in CRAA and Burt Twp, one must also consider the local regulation in question. Under Const 1963, art 4, 51, public health is a matter "of primary public concern." The Public Health Code, 1978 PA 368, MCL 333.1101 et seq; MSA 14.15(1101) et seq, grants to local health departments broad authority to adopt regulations necessary or appropriate to carry out their duties to protect public health. Section 2235(1) grants the State Department of Public Health the power to authorize local health departments "to exercise a power or function of the department." Section 2235(2) of the Public Health Code provides that the state "shall consider a local health department . . . to be the primary organization responsible for the organization, coordination, and delivery of . . . services and programs." Section 2441 provides that regulations adopted by local health departments are "applicable to the same or similar subject matter" as state law and "supersede inconsistent or conflicting local ordinances." Moreover, section 2433 provides that:
(2) A local health department shall:


(f) Have powers necessary or appropriate to perform the duties and exercise the powers given by law to the local health officer and which are not otherwise prohibited by law.

One of the powers delegated to local health departments is to "[a]dvise other local agencies and persons as to the location, drainage, water supply, disposal of solid waste, heating, and ventilation of buildings." Section 2435(b) (emphasis added).3 Nothing in the Public Health Code suggests that a local health department's authority to regulate does not include regulation of water well construction by public universities. To the contrary, the Public Health Code vests local health departments with broad authority to regulate matters concerning public health, including jurisdiction over water supplies. Moreover, the Public Health Code contains no clear expression of legislative intent to exempt public universities from local public health regulations. Since there is no clear expression of legislative intent to exempt public universities from local health department ordinances protecting groundwaters, Burt Twp, supra, and CRAA, supra, compel the conclusion that public universities must obey such ordinances.

It is my opinion, therefore, that Northern Michigan University, an institution of higher education covered by Const 1963, art 8,  6, must obey a county ordinance that requires a county health department permit before constructing a water well on its property.

Attorney General

1 MCL 560.101 et seq; MSA 26.430(101) et seq.

2 MCL 125.271 et seq; MSA 5.2963(1) et seq.

3 It is also noted that Part 127 of the Public Health Code, titled "Water Supply And Sewer Systems," regulates the installation of water wells and requires annual registration of well drilling contractors. For purposes of enforcing Part 127, local health departments may enter and inspect well installations on public and private property (section 12708) and may investigate violations and order corrective measures. Section 12709(1).