STATE OF MICHIGAN

A county board of commissioners in a noncharter county lacks authority to adopt a countywide noise control ordinance.

Opinion No. 7096

December 26, 2001

Mr. Jeffrey C. Middleton
St. Joseph County Prosecuting Attorney
P.O. Box 250
Centreville, MI 49032-0250

You have asked whether a county board of commissioners in a noncharter county is authorized to adopt a countywide noise control regulation ordinance.

Your request indicates that a county board of commissioners is considering adopting a countywide ordinance prohibiting "any unreasonable or unnecessarily loud noise or disturbance, injurious to the health, peace, or quiet of the residents and property owners of the county." The proposed ordinance would also list specific violations, including the operation of pneumatic hammers during the period between 10 p.m. and 6 a.m. Violation of the proposed ordinance would be a misdemeanor, punishable by a fine of up to $500, or imprisonment of up to 90 days, or both.

Counties and other local units of government have only such powers as are granted them by law. Mosier v Wayne County Bd of Auditors, 295 Mich 27, 29; 294 NW 85 (1940); Hanslovsky v Leland Twp, 281 Mich 652; 275 NW 720 (1937). Michigan statutes authorize specific county ordinances � for example, zoning ordinances (MCL 125.201 et seq), animal control ordinances (MCL 287.289a), and noxious weed ordinances. MCL 247.70. Beyond such instances of express statutory authorization, noncharter counties possess only the authority to adopt ordinances pursuant to section 11(j) of the County Boards of Commissioners Act (County Act), 1851 PA 156, MCL 46.1 et seq, which provides, in relevant part, as follows:

A county board of commissioners, at a lawfully held meeting, may do 1 or more of the following:

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(j) By majority vote of the members of the county board of commissioners elected and serving, pass ordinances that relate to county affairs and do not contravene the general laws of this state or interfere with the local affairs of a township, city, or village within the limits of the county . . . . [Emphasis added.]

County ordinances must relate to, and are restricted to, affairs of the county and may not interfere with the local affairs of cities, villages, or townships. OAG, 1989-1990, No 6665, pp 401, 403 (November 15, 1990); OAG, 1969-1970, No 4696, pp 197, 200 (November 25, 1970); OAG, 1928-1930, p 477 (July 13, 1929); 1 OAG 1957, No 2973, p 168 (April 12, 1957).

Several Attorney General opinions have concluded that the regulation of various activities exceeded the authority of a county board of commissioners, including a county's regulation of "loud speaking equipment" on automobiles operating on county roads, OAG, 1941-1942, No 22046, p 448 (December 16, 1941); the handling of foodstuffs and beverages, OAG, 1943-1944, No 24970, p 163 (November 24, 1942); Sunday beer sales, OAG 1943-1944, 0-402, p 320 (March 16, 1943); the operation of motor boats, OAG, 1943-1944, No 0-1394, p 563 (October 18, 1943); loitering by minors where liquor is sold, OAG, 1945-1946, No 0-4471, p 639 (March 15, 1946); and Sunday sales of personal property, 1 OAG, 1957, No 2973, p 168 (April 12, 1957).

OAG, No 4696, supra, at 200, concluded that noncharter counties would be interfering with cities, villages, and townships by adopting an air pollution control ordinance where cities, villages, and townships already had the power to adopt such ordinances. Similarly, OAG, 1971-1972, No 4741, p 82 (April 3, 1972), concluded that a county lacked authority to adopt an ordinance prohibiting the discharge of firearms within the county.

The proposed countywide noise control ordinance described in your request, if adopted, would apply beyond the affairs of a county, which have been characterized in prior Attorney General opinions as "affairs relating to the county in its organic and corporate capacity and included within its governmental or corporate powers." See OAG, 1945-1946, No 0-4471, supra. On the other hand, it is possible that a noise control ordinance could be adopted by a county board of commissioners, provided that the ordinance was limited to the regulation of noise on property owned or occupied by the county government or its boards, commissions, or agencies. See OAG, No 6665, supra, concluding that although counties lack authority to regulate the placement of cigarette vending machines within their respective borders, they may regulate such activity on county property.

Additional support for this limited approach to a countywide noise control ordinance is found in sections 11(l) and (m) of the County Act that authorize a county board to manage the county�s property [subsection (l)] and manage the interests and business concerns of the county [subsection (m)]. Existing statutory provisions, however, do not provide a county board of commissioners with authority to adopt a countywide noise control ordinance since the scope of the proposed ordinance is not limited to county affairs, i.e., the regulation of noise on property owned or occupied by the county government or its boards, commissions, or agencies.

It is my opinion, therefore, that a county board of commissioners in a noncharter county lacks authority to adopt a countywide noise control ordinance.

JENNIFER M. GRANHOLM
Attorney General