The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



 

STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

COUNTIES:

BILLBOARDS:

COUNTY ZONING ACT:

HIGHWAY ADVERTISING ACT:

Authority of counties to regulate outdoor advertising signs

The Highway Advertising Act preempts counties from regulating the size, lighting, and spacing of signs and sign structures that are located within an "adjacent area" as defined by MCL 252.302(o). Within the limitations of the County Zoning Act, a county may otherwise regulate signs and sign structures.

Opinion No. 7188

February 17, 2006


Honorable Tim Moore
State Representative
The Capitol
Lansing, MI 48913

You have asked if counties may regulate and control the size, lighting, and spacing of signs and sign structures with a county zoning ordinance adopted under the County Zoning Act or whether the Highway Advertising Act preempts county regulation in this area.

A county has only those powers that have been granted to it by the Constitution or the state Legislature. Alan v Wayne County, 388 Mich 210, 245; 200 NW2d 628 (1972).1  A county's statutorily granted authority should be liberally construed in its favor and includes those powers "fairly implied and not prohibited by the constitution." Const 1963, art 7, 34. Saginaw County v John Sexton Corp, 232 Mich App 202, 221; 591 NW2d 52 (1998).

Section 1(1) of the County Zoning Act, MCL 125.201(1), provides limited authorization to a county board of commissioners to adopt zoning ordinances, including regulations "designating or limiting the location, size of, and the specific uses for which a . . . structure may be erected or altered":

The county board of commissioners of a county in this state may provide by zoning ordinance for the establishment of land development regulations and districts in the portions of the county outside the limits of cities and villages which regulate the use of land . . . to insure that uses of the land shall be situated in appropriate locations and relationships; . . . and to promote public health, safety, and welfare. For those purposes the county board of commissioners may divide the county into districts of a number, shape, and area as is considered best suited to carry out this act. . . . Land development regulations may also be adopted designating or limiting the location, size of, and the specific uses for which a dwelling, building, or structure may be erected or altered . . . . [Emphasis added.]

County ordinances may be adopted for portions of the county outside the limits of cities and villages as stated in this provision. Further, section 39 of the County Zoning Act, MCL 125.239, excludes certain townships from coverage under such a county ordinance:

A township in which an ordinance enacted under the township zoning act, Act No. 184 of the Public Acts of 1943, being sections 125.271 to 125.310 of the Michigan Compiled Laws, is in effect is not subject, unless otherwise provided in this act, to an ordinance, rule, or regulation adopted under this act.

Thus, county zoning ordinances are generally inapplicable to townships in which a validly enacted township zoning ordinance is in effect under the Township Zoning Act. Bengston v Delta County, 266 Mich App 612, 617; 703 NW2d 122 (2005).

In Dingeman Advertising, Inc v Saginaw Twp, 92 Mich App 735, 738; 285 NW2d 440 (1979), the Court considered language in the Township Zoning Act comparable to the emphasized language in section 1(1) of the County Zoning Act, MCL 125.201, and stated:

In order to implement programs to attain the goals set forth, local governmental bodies are given the power to regulate or prohibit in a specified manner the type and method of development. MCL 125.271; MSA 5.2963(1). The power includes control over all "dwellings, buildings and structures" which would incorporate large scale signs. MCL 125.271; MSA 5.2963(1), Midland Twp v Rapanos, 41 Mich App 75; 199 NW2d 548 (1972). [Emphasis added.]

Thus, regulations adopted by a county board of commissioners "designating or limiting the location, size of, and the specific uses for which a . . . structure may be erected or altered" may extend to signs, subject to the limitations expressed in MCL 125.201(1) and MCL 125.239 and so long as that power is not otherwise limited.

Your question concerns whether the Highway Advertising Act limits a county board of commissioners' power by preempting its authority to regulate signs.

According to its title, the Highway Advertising Act of 1972 (Act), MCL 252.301 et seq, provides for the licensing, regulation, control, and prohibition of outdoor advertising adjacent to certain roads and highways. A person shall not engage or continue to engage in outdoor advertising through the erection, use, or maintenance of any signs in an "adjacent area" where the facing of the sign is visible from an interstate highway, freeway, or primary highway. MCL 252.305. The term "adjacent area" is defined in section 2(o) of the Act to mean:

[T]he area measured from the nearest edge of the right of way of an interstate highway, freeway, or primary highway and extending 3,000 feet perpendicularly and then along a line parallel to the right-of-way line. [MCL 252.302(o).]

Section 4 of the Act, MCL 252.304, preempts local regulation of the size, lighting, and spacing of signs and their structures, in adjacent areas, except that a city, village, township, or charter township may adopt identical or more restrictive regulations:

This act regulates and controls the size, lighting, and spacing of signs and sign structures in adjacent areas and occupies the whole field of that regulation and control except for the following:

(a) A city, village, township, or charter township may enact ordinances to regulate and control the size, lighting, and spacing of signs and sign structures, but the ordinances shall not permit a sign or sign structure that is otherwise prohibited by this act or require or cause the removal of lawfully erected signs or sign structures subject to this act without the payment of just compensation. A sign owner shall apply for an annual permit pursuant to section 6 for each sign to be maintained or to be erected within that city, village, charter township, or township. A sign erected or maintained within that city, village, township, or charter township shall also comply with all applicable provisions of this act. [MCL 252.304(a); emphasis added.]

The Act does not extend that exception to counties. Section 25 of the Act recognizes that fact, providing that a study should be conducted to determine whether counties should be given the authority to regulate outdoor advertising in adjacent areas:

It is the intent of the legislature that the state fund a study to analyze the effect of the amendatory act that added this section and to make recommendations to the legislature of any additional changes to this act that should be considered. At a minimum, the study shall consider all of the following:

(a) Whether regulatory authority under this act should be extended to counties. [MCL 252.325(a); emphasis added.]

As to the scope of the Act's preemption provisions, Dingeman Advertising, Inc, supra, addressed whether section 4 of the Act preempted authority that a township could otherwise exercise under the Township Zoning Act to regulate signs. The Court noted that the Township Zoning Act is general in its scope while the Highway Advertising Act specifically addresses the regulation of signs in adjacent areas, stating that, "[w]hile both statutes are directed toward orderly development of land use, the HAA is specifically concerned with billboard advertising as it relates to land use." 92 Mich App at 739.

After recognizing the rule of statutory construction that specific statutory provisions control over more general statutory provisions, the Court found that the Highway Advertising Act expressly preempts local regulation:

When the state undertakes to assume exclusive regulation, municipal regulation is preempted. The express language utilized here indicates that the pervasive scheme of control in this area intended by the Legislature preempts local regulation. [92 Mich App at 741; emphasis added.]

The same conclusion may be drawn when considering the general regulatory authority conferred on a county board of commissioners under the County Zoning Act, compared to the specific limitations imposed by section 4 of the Highway Advertising Act.

It should be noted, however, that so long as the signs in question are not within an "adjacent area," the plain language of the Act does not preempt the authority of a county or any other local unit of government to regulate them. Similarly, so long as the county regulation does not address the "size, lighting, and spacing of signs and sign structures," regulation by a county is not preempted. Homer Twp v Billboards by Johnson, Inc, 268 Mich App 500; 708 NW2d 737 (2005).2  As to such signs and sign structures, a county may exercise its limited regulatory authority under the County Zoning Act.

It is my opinion, therefore, that the Highway Advertising Act preempts counties from regulating the size, lighting, and spacing of signs and sign structures that are located within an "adjacent area" as defined by MCL 252.302(o). Within the limitations of the County Zoning Act, a county may otherwise regulate signs and sign structures.

MIKE COX
Attorney General

1 See OAG, 2001-2002, No 7117, pp 115, 116 (September 11, 2002), for examples of powers that counties lack because of the absence of affirmative authority.

2
In so ruling, the Court in Homer Twp followed Central Advertising Co v St. Joseph Twp, 125 Mich App 548, 552; 337 NW2d 15 (1983):  "[P]re-emption extends only to the area of regulation, which is, size, lighting and spacing in adjacent areas. . . .  [T]he Highway Advertising Act does not pre-empt local governments from regulating areas unrelated to the spacing, lighting and size of signs in adjacent areas."  Accord, Oshtemo Charter Twp v Central Advertising Co, 125 Mich App 538, 542; 336 NW2d 823 (1983).