County government powers are very limited
A county government does not have general ordinance making authority. As a general rule counties cannot adopt ordinances. Municipalities have more authority, powers than counties, and can adopt police power ordinances.
Many assume county government has more authority or equal authority as local units of government such as townships, cities or villages. This assumption might be made because a county government includes a large geographic area with several local governments.
Actually, the opposite is the case.
In Michigan, local governments do not have authority to do anything unless the state legislature delegates that authority. Cities and villages have the broadest delegation of authority, townships are in the middle, and counties have the least. With authority comes restrictions – such as not being able to do what has not been delegated. For more information from Michigan State University Extension on limitations of authority see, Local wireless communication zoning further restricted, Metro Detroit public transit authority will be zoning exempt and Can local governments regulate oil and gas development?.
Whereas townships, villages, and cities are considered municipalities, in many respects a county is not. Historically, a county was thought of as an extension of state government – not a local government. As a result, for example, a county does not have general ordinance-making powers (there are exceptions, see specifics below).
In northern parts of Michigan there is often the suggestion that it makes more sense for the county to adopt an ordinance because it has the police department (sheriff), legal team (prosecutor), and other resources to uniformly enforce ordinances for the entire county. One county who adopted this thinking produced a well written storm water and erosion control ordinance. It even became a model for use in the state. But several years after its adoption someone challenged the ordinance arguing that a county does not have general ordinance making powers. The judge agreed, setting aside the county ordinance.
Other examples involved counties crafting ordinances involving junk and blight. One ordinance was thrown out by a judge and the other was repealed before it could also be thrown out as well.
That county government does not have the power to adopt general ordinances has been subject to several Michigan attorneys general opinions (opinion No. 6665, November 15, 1990; No. 4696, p. 197-200, November 25, 1970; No. 4471, p. 639, March 15, 1946; and No. 7096, 2001.) In Opinion 6665 the attorney general summarized his findings as:
“State law does not preempt local ordinances designed to prevent tobacco sales to minors nor does it preempt local ordinances that regulate or prohibit the placement of cigarette vending machines.
“Counties lack the legal authority to regulate or prohibit the placement of cigarette vending machines within their respective borders but may regulate or prohibit the placement of cigarette vending machines on county property.
“Cities, villages, and townships may enact ordinances to prevent the sale of tobacco products to minors and to regulate or prohibit the placement of cigarette vending machines within their respective borders.
“Local health departments have the legal authority to adopt regulations to prevent the sale of tobacco to minors and to regulate or prohibit the placement of cigarette vending machines.”
The attorney general was pointing out that counties may only “pass regulations and ordinances relating 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” (County Boards of Supervisors; M.C.L. 46.11(j)). The statutes limit county ordinance making authority from four categories:
- Must be related to "county affairs" (e.g., internal operations of the county such as ordinances about county-owned land, buildings, facilities).
- Cannot contravene state law.
- Cannot interfere in local affairs (e.g., what city, village or township ordinances may require).
- Lack of general police power. This limitation is not found above, but, rather, is the absence of state statute that delegated such authority to county government. No statute specifically gives county commissions a general grant of authority to regulate or pass ordinances to protect the "health, safety, and welfare" of its population. Such statutes do exist for cities, villages, and townships.
In the end, Michigan local governments, including counties, have only the powers conferred upon them by the Michigan Constitution or state statutes. (Alan v. Wayne County, 388 Mich 210, 245; 200 NW2d 628 (1972).)
In contrast to counties, cities, villages, and townships have broader police powers, giving them authority to adopt more kinds of ordinances. (Detroit Edison Co. v. Township of Richmond, 150 MichApp 40, 47; 388 NW2d 296 (1986); People v. Strobridge, 127 MichApp 705, 708-709; 339 NW2d 531 (1983); and Michigan Attorney General Opinion no. 6139, p. 90, March 30, 1983.)
So when the idea is for the county to adopt the ordinance, the first step is to find the specific statutory authority that says a county has the power to do so. For example, the Michigan Zoning Enabling Act specifically empowers counties to adopt zoning (but only for those townships that do not have township zoning), ordinances concerning certain aspects of solid waste management, a land division or subdivision ordinance dealing with coordinated county review of the same, E9-1-1 addressing, animal control, and setting policy in the form of resolutions (budget, appropriations, personnel, capital improvement, county services, and other internal matters). The local health department has ordinance making authority separate from the county board for matters having a direct effect on public health.
Yes, it makes intuitive sense for the county to adopt an ordinance because they have the police department (sheriff), legal team (prosecutor), and other resources to uniformly enforce ordinances for the entire county. But the correct course of action is to have the municipalities (township, city, village) adopt the ordinance and contract with the county for enforcement services.
A county cannot enforce township, city, or village ordinances, that enforcement must be the responsibility of the respective municipality. But one way to fulfill that responsibility is to contract with the county to provide enforcement services on behalf of the municipality. With such contracts the county is acting as an agent of that municipality.
This can only happen if the county is willing to undertake a contract to provide that service of course, and that will depend on the resources at the county’s disposal, county policy about such matters (or the particular county elected official’s policy), and the municipality’s desire to work with the county in that matter.