Mississippi Advisory Opinions March 12, 2012: No. 2012-00120 (March 12, 2012)

Mississippi Attorney General Opinions

2012.

No. 2012-00120.

Dear Mr. Slover:

Attorney General Jim Hood has received your request for an opinion and has assigned it to me for research and response.

Issues Presented

You inquire as to whether a county may amend its cell tower ordinance and adopt a false alarm ordinance. Specifically, you provide the following:

Adams County, Mississippi board of supervisors has voted to approve the enclosed ordinances, after public notification. The first is an amended ordinance for cell phone towers. The amended part is highlighted. The second is an ordinance for false burglary alarms. Please give your opinion if Adams County can enact the amendment and ordinance.

Response

We do not by official opinion interpret ordinances, as local ordinances are best interpreted by the governing entities who adopt them. With regard to the authority of the county to adopt the proposed ordinances, it may adopt a zoning ordinance which requires the procurement of a liability policy by antenna tower contractors and adopt a false alarm ordinance, provided that such ordinances are not inconsistent with the Mississippi Constitution, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi.

Applicable Law and Discussion

With respect to the interpretation of the ordinances you reference in your request, we do not by official opinion interpret ordinances, as local ordinances are best interpreted by the governing entities who adopt them. MS AG Op., Austin (November 10, 2000).

Section 19-3-40 of the Mississippi Code, which is commonly referred to as the "county home rule", authorizes counties "to adopt any orders, resolutions and ordinances with respect to county affairs, property and finances, for which no specific provision has been made by general law and which are not consistent with the Mississippi Constitution, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi..." and states the following:

(1) The board of supervisors of any county shall have the power to adopt any orders, resolutions or ordinances with respect to county affairs, property and finances, for which no specific provision has been made by general law and which are not inconsistent with the Mississippi Constitution, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi; and any such board shall likewise have the power to alter, modify and repeal such orders, resolutions or ordinances. Except as otherwise provided in subsection (2) of this section, the powers granted to boards of supervisors in this section are complete without the existence of or reference to any specific authority granted in any other statute or law of the State of Mississippi.

Such orders, resolutions or ordinances shall apply countywide except when the governing authorities of any municipality situated within a county adopt any order, resolution or ordinance governing the same general subject matter. In such case the municipal order, resolution or ordinance shall govern within the corporate limits of the municipality.

(2) This section shall not authorize the board of supervisors of a county to (a) levy taxes other than those authorized by statute or increase the levy of any authorized tax beyond statutorily established limits, (b) issue bonds of any kind, (c) change the requirements, practices or procedures for county elections or establish any new elective office, (d) use any public funds, equipment, supplies or materials for any private purpose, (e) regulate common carrier railroads, (f) grant any donation, or (g) without prior legislative approval, regulate, directly or indirectly, the amount of rent charged for leasing private residential property in which the county does not have a property interest; unless such actions are specifically authorized by another statute or law of the State of Mississippi.

Thus, a county, pursuant to its authority under Section 19-3-40, may adopt orders and resolutions, so long as they are not in direct conflict with other statutory provisions or the constitution. MS AG Op., Trapp (March 15, 2005). In a previous opinion, we recognized a county's authority, under its home rule statute, to require proof of payment of water fees before the issuance of a building permit or certificate of occupancy. MS AG Op., Nowak (January 18, 2007). In fact, the Nowak opinion cited another previous opinion in which we concluded that a municipality, by ordinance, could require all tested and licensed residential builders or remodelers to provide proof of liability insurance at the time of application for a building permit. MS AG Op. Jordan (August 5, 1993). Therefore, it is the opinion of this office that a county is authorized to adopt an ordinance which requires contractors to provide proof of liability insurance under its home rule authority found at Section 19-3-40.

In response to your inquiry regarding a false alarm ordinance, we enclose previous opinions in which we opined that local governing authorities are authorized to adopt such an ordinance. MS AG Op., Scanlon (July 1, 2011); MS AG Op., Miller (May 31, 2002). Thus, we are also of the opinion that a county is authorized to adopt a false alarm ordinance in accordance with Section 19-3-40.

If we may be of further assistance, please advise.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Leigh Triche Janous

Special Assistant Attorney General