Reduced Speed Limits; School Zones; State Highway System Streets

Subject:

Requested By: Ralph D. Karpinos Town Attorney Chapel Hill, North Carolina

Question: Is a municipal ordinance adopted pursuant to G.S. 20-141.1 reducing the speed in a school zone on a State Highway System street, effective without a concurring ordinance by the Department of Transportation as provided for by G.S. 20-141(f)?

Conclusion: No.

G.S.

20-141.1 provides as follows: "The Board of Transportation or local authorities within their respective jurisdictions may, by ordinance, set speed limits lower than those designated in G.S. 20-141 for areas adjacent to or near a public, private or parochial school. Limits set pursuant to this section shall become effective when signs are erected giving notice of the school zone, the authorized speed limit, and the days and hours when the lower limit is effective [or by erecting signs giving notice of the school zone, the authorized speed limit and which indicate the days and hours the lower limits are effective by an electronic flasher operated with a time clock.] Limits set pursuant to this section may be enforced only on days when school is in session, and no speed limit below 20 miles per hour may be set under the authority of this section." (Underlined portion for emphasis; portion in brackets adopted in 1979.)

G.S.

20-141 provides for speed limits on public streets and highways of the state. It sets the statutory speed limits at 55 miles per hour outside municipal corporate limits and 35 miles per hour inside the municipal corporate limits. It provides for the raising and lowering of statutory speeds on state highways inside municipalities based upon an engineering and traffic study and it requires concurring ordinances by the Department and the municipality on noncontrolled access highways. G.S. 20-141(f).

G.S.

20-141.1 was passed in 1977 as a part of a bill to increase drivers license points for speed violations in school zones. (1977, Chapter 902). The caption of the Act is "AN ACT TO INCREASE DRIVERS LICENSE POINTS FOR SPEED VIOLATIONS IN SCHOOL ZONES." Section 1 of the Act added to the "SCHEDULE OF POINT VALUES" in G.S. 20-16(c) for drivers license revocation for "Speeding in a school zone in excess of the posted school zone speed limit . . . 3". The gist of Section 1 was to increase the point schedule for that violation from

2 to 3 points. The points for the violation had previously been covered under Subsection (c) within the provision for "all other moving violations . . . 2".

Section 2 of Chapter 902, 1977 Session Laws enacted G.S. 20-141.1 substantially as it is now. It provides that the "Board of Transportation or local authorities within their respective jurisdictions may, by ordinance set speed limits lower than those designated in G.S. 20-141" in school zones. G.S. 20-141.1 when passed, was only incidental to increase the "drivers license points for speed violations in school zones." Authorization to reduce speed in school zones was already provided for by other statutes and the "Manual on Uniform Traffic Control Devices", which the Department is required to comply with by Federal-aid provisions and G.S. 20-169.

We believe the purpose of the act adopting G.S. 20-141.1 is described by the caption of the Act. The purpose was "to increase the drivers license points for speed violations in school zones" from two to three points. Section 1 of the Act established three points for the violation. Section 2 (adopting G.S. 20-141.1) added an additional element to the charges in G.S. 20-141 for speed violations for the purpose of providing a formal charge to coincide with the new schedule in G.S. 20-16(c) for increased points for drivers license revocations for speed violations in school zones. Prior to 1977, the charge for speeding in a school zone, was the same as any other locations; i.e. exceeding the posted speed limits, which carried two points under "other moving traffic violations." Without the adoption of G.S. 20-141.1 there would have been no formal charge to correspond to the increased points provided for in G.S. 20-16(c).

The question presented is not addressed by G.S. 20-141.1. (Whether or not concurring ordinances are required as provided for in GS. 20-141(f) for reduced speed limits set pursuant to G.S. 20

141.1 on the State Highway System streets in school zones within municipalities.) Generally, the various statutes granting regulatory authority over state highways within a municipality deal with the question of concurrent or exclusive jurisdiction. As G.S. 20-141.1 does not, it is necessary to also consider G.S. 20-141, G.S. 20-169, and other statutes and cases dealing with the State Highway System to resolve the issue.

Public streets within municipalities include those on the Municipal Street System and those on the State Highway System. State highways within municipalities generally consist of those main through streets and highways. City of Raleigh v. Riley, 64 N.C. App. 623 (1983). The Municipal Street System includes the remainder of the public streets. Municipalities have the duty and responsibility of constructing and maintaining streets and highways on the Municipal Street System and the Department of Transportation has the duty and responsibility to maintain streets and highways on the State Highway System. G.S. 136-66.1. Milner Hotels, Inc. v. City of Raleigh, 271 N.C. 224 (1967); Matterness v. Winston-Salem, 286 N.C. 1 (1974). Municipalities have general police power within municipalities, including state highways. G.S. 160A-296 grants municipalities authority to regulate public streets within municipalities, "except to the extent power and control is vested in the Department of Transportation." The Department of Transportation is also vested with general regulatory authority over the use of State Highway System streets. G.S. 136-18. The general grant of authority to municipalities over streets is subordinate to the Department of Transportation’s rights and duties to maintain the State Highway System. Morehead City v. N.C. Department of Transportation, 74 N.C. App. 66 (1985).

G.S. 20-169 provides that "Local authorities, except as expressly authorized by G.S. 20-141 . . . shall have no power to alter any speed limitations declared in this article . . . ." G.S. 20-169 also provides that all traffic control devices on the State Highway System shall be subject to the approval of the Department of Transportation and shall be in accordance with the "Manual on Uniform Traffic Control Devices."

The Legislature, in most cases involving the regulation of state highways within municipalities, has been specific as to jurisdiction where there may be a problem of conflicting regulations, i.e.

(a)

Speed limits. Changes in the statutory speed limits on State Highway System streets within municipalities require concurring ordinances by the municipality and the Department (except in cases by controlled access facilities). G.S. 20-141.

(b)

Stop and Yield signs and traffic lights. The Department of Transportation has exclusive authority to place and control traffic lights and stop and yield signs on the State Highway System streets. G.S. 20-158; G.S. 20-169; G.S. 20-158.1.

(c)

Traffic Control Devices. The Department of Transportation has exclusive authority over all Traffic Control Devices on the State Highway System. G.S. 20-169; G.S. 136-30; 43 N.C.A.G. 309 (1974).

(d)

Manual on Uniform Traffic Control Devices. All traffic control devices are required to be in accordance with the Manual on Uniform Traffic Control Devices. G.S. 20-169.

(e)

Parking. The Department of Transportation has authority to regulate parking and to pre-empt municipal parking regulations on the State Highway System. G.S. 136-18(5).

(f)

Utilities, etc. on Highway Right-of-Wav. The Department of Transportation has exclusive control over all utilities and encroachments on state highway right-of-way. G.S. 136-18(10); G.S. 136-93.

Procedural matters are not addressed in G.S. 20-141.1. The Legislature in passing G.S. 20-141.1, neither repealed nor amended existing statutes dealing with the procedures for changing statutory speed limits. The Legislature did not amend the express mandatory provision that no statutory speed limits shall be changed except in accordance with G.S. 20-141 (which requires a concurring ordinance). G.S. 20-169. Repeal by implication is not favored in the law, and statutes dealing with the same subject matter must be construed in pari materia, and harmonized if possible to give each effect. Town of Morehead City v. North Carolina Department of Transportation, 74 N.C. App. 66, 327 SE 2d 602 (1985).

The Legislature has provided a statutory scheme for changing statutory speed limits on state highways within municipalities including concurring ordinances (on noncontrolled access highways). G.S. 20-141. Federal-aid provisions and statutory provisions require compliance with the "Manual on Uniform Traffic Control Devices" on state highways and streets, which includes the requirement for a traffic and engineering investigation as a basis for reduced speeds in school zones. MUTCD 7B-12. The Department has exclusive control over traffic signs and other traffic control devices on state highways in order to comply with federal standards. There appears to be no legislative intent in adopting G.S. 20-141-1 to change the statutory scheme for compliance with the Manual on Uniform Traffic Control Devices, the exclusive control of traffic Control Devices by the Department of Transportation on the State Highway System, nor the requirement for concurring ordinances and engineering and traffic investigation for changes in the statutory speed limits.

This office is of the opinion that G.S. 20-141.1 must be construed together with G.S. 20-141,

G.S. 20-169, and other statutes, and when so construed, the provision for concurring ordinances in G.S. 20-141 when reducing speed limits on state highways in school zones within municipalities must be given effect and must be complied with. This opinion is consistent with the interpretation and practice of the administrative agency which executes and administers the law. The Department of Transportation continued to comply with G.S. 20-141 for speed changes in school zones after passage of G.S. 20-141.1 in 1977. 12 Strong, N.C. Index 3d, Statutes 5.7. However, the applicability of the requirement for concurring ordinances in G.S. 20-141(f) to school zones within municipalities appears to be academic. The Department’s regulations and policy require traffic and engineering investigations and concurring ordinances for the posting of signs and traffic control devices on the State Highway System for reduced speed limits within municipalities. Since the Department of Transportation has exclusive control over traffic control devices on state highway system streets, and posted notice is required for changes in the statutory limits, as a practical matter, any municipal ordinance pursuant to G.S. 20-141.1 is ineffectual without approval of the Department of Transportation. 41 N.C.A.G. 309; 43 N.C.A.G. 167.

Lacy H. Thornburg Attorney General

Eugene A. Smith Senior Deputy Attorney General