North Carolina Department of Justice
North Carolina Department of Justice
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August 10, 1978 State Departments, Institutions and Agencies; Department of Transportation; Municipalities; Streets and Highways; Weight Limits; Special Permits

Subject:

 

Requested By: Mr. F. Douglas Canty Assistant City Attorney for Charlotte

 

Question: Does the City of Charlotte have the authority to issue special permits authorizing the operation, over city-maintained streets, of passenger buses of a weight exceeding the maximum specified in G.S. 20-118(8)?

 

  1.  
  2. Does the North Carolina Department of Transportation have the authority to issue special permits authorizing the operation, over both state-maintained and city-maintained streets, of passenger buses of a weight exceeding the maximum specified in G.S. 20-118(8)?

     

Conclusion: 1. No. Although the municipality has authority under the provisions of G.S. 160A-296 and 300 to restrict and regulate traffic on municipal streets, including authority for the issuance of special permits for the purpose of the licensing of overweight passenger buses under the provisions of

 

G.S. 20-118(8).

2. Yes. The Department of Transportation has the authority to issue special permits for overweight passenger buses in order that the applicant may obtain a license to operate the passenger bus on both the state-maintained and city-maintained streets pursuant to the provisions of G.S. 20-118(8).

The City of Charlotte has on order thirty-four new passenger buses for use by its public transit system, which, when fully loaded, will exceed the statutory weight limits established by G.S. 20-118(8). G.S. 20-115 provides that the maximum size and weight of vehicles specified in the article shall be lawful throughout the State and local authorities shall have no power or authority to alter said limitations except as express authority shall be granted in this Article. The foregoing restriction raises the question of the authority of a municipality to grant special permits for the operation of overweight vehicles on municipal streets as G.S. 20-119 provides that municipalities may grant permits in writing authorizing the applicant to move a vehicle over the streets of the city or town, the size or width exceeding the maximum expressed in the article. We find no express authority in the Article for municipalities to alter the weight limitations nor to issue special permits for the operation of overweight vehicles on the streets.

The municipality has specific statutory authority to adopt such ordinances for the regulation and use of its streets as it deems best for the public welfare of its citizens and to provide for the regulation and diversion of vehicular traffic upon its streets. Genes, Inc. v. Charlotte, 259 N.C.118, 120 (1963). G.S. 160A-296 provides that a city shall have general authority and control over all public streets which includes but is not limited to (1) the duty to keep public streets in proper repair; (5) the power to regulate the use of public streets. G.S. 160A-300 provides that a city may by ordinance prohibit, regulate, divert, control and limit pedestrian or vehicular traffic upon the public streets, sidewalks, alleys and bridges of the city. Unless otherwise restricted by State law, the municipality has the authority to regulate the weight of vehicles using its streets and to issue permits for the operation of overweight vehicles on municipal streets under the authority of those statutes. 75 ALR 2d 396 Anno. Highways - Weight Limitations.

The foregoing cited statutes authorizing municipalities to regulate streets and traffic have been in effect since 1919. Chapter 136, 1919 Session Laws. These statutes however were rewritten and reenacted in 1971. Chapter 978, 1971 Session Laws. G.S. 20-115 and G.S. 20-119 were originally passed 1927. At that time the language in the first sentence of G.S. 20-119 authorized local governments and the State Highway Commission to issue special permits for oversize or overweight vehicles. The 1927 Statute provided in part as follows:

"The State Highway Commission and local authorities in their respective jurisdiction may in their discretion, upon application in writing and good cause being shown therefore, issue a special permit in writing authorizing the applicant to operate or move a vehicle of its size or weight exceeding the maximum specified in this Act upon any highway under the jurisdiction for the maintenance of which the body granting the permit is responsible." Chapter 148, Section 38, 1927 Session Laws.

However, after the county road system was taken over by the State Highway Commission, the 1937 Legislature rewrote the motor vehicle statutes. G.S. 20-119 was amended by deleting the foregoing underlined portion which authorized local governments to issue overweight permits. The purpose was apparently an attempt to reflect the change in the jurisdiction over county roads. The proviso as now appears was added, which provides that municipalities may issue special permits to move a vehicle over the streets of the municipalities may issue special permits to move a vehicle over the streets of the municipality, the size or width exceeding the maximum expressed in the Act. Chapter 407, Section 83, 1937 Session Laws. This left G.S. 20-115 somewhat ambiguous. The use of the term "size or width" in the proviso, rather than "size or weight" may also have been an oversight. An unsuccessful attempt was made in 1957 to clarify

G.S.
20-119 by the passage of Chapter 1129 of the 1959 Session Laws. That session law is entitled "An act to clarify the issuance by the State Highway Commission of special permits for vehicles of excessive size or weight." It was still ambiguous after the amendment. A further review of the legislative history for the purpose of this opinion would serve no purpose except to show that G.S. 20-119 was ambiguous when rewritten in 1937 and is still ambiguous after an attempted clarification in 1959. Municipalities have the duty and authority to maintain the Municipal Street System and the Department of Transportation has the duty and authority to maintain the State Highway System.
G.S.
136-66.1. Both are given authority to regulate traffic and the use of public streets. The Department of Transportation is given express authority to (1) classify county roads as light traffic roads and to post those roads, G.S. 20-118(5); (2) to establish truck routes and to prohibit

trucks from using certain routes, G.S. 20-116(h), G.S. 20-141(i); (3) to issue special permits for overweight vehicles, G.S.20-119; (4) and to restrict load limits on bridges on the State Highway System, G.S.136-72. Express authority is not given to municipalities to limit the load limits on bridges, to post and restrict roads, to establish truck routes over municipal streets, nor to issue special permits for overweight vehicles. A review of the legislative history of the municipal laws and G.S. 20-119 and G.S. 20-116 does not indicate an intent to exclude municipal regulations in these areas. This Office has in the past advised that State law does not prohibit municipalities (1) from posting weight limits on bridges on the Municipal Street System; (2) from restricting trucks on certain streets to prevent damage or destruction by vehicles carrying the legal load limit; (3) and from establishing truck routes, so long as the regulations are reasonable. This Office is of the opinion that municipalities have authority to issue special permits for the movement of overweight vehicles over municipal streets, and that the issuance of such permits is not an alteration of the weight limits in contravention of G.S. 20-115. However, the municipality has no authority to issue such special permits for operation of overweight passenger buses for the reasons hereinafter discussed.

The licensing of "passenger buses" for operation on the highways of the State is handled differently from the licensing of other vehicles. A certification as to the weight of a passenger bus is required before it can be licensed to operation on the highways. Prior to the 1978 Amendment by the General Assembly, G.S. 20-118(8) prohibited the issuance of a special permit for the operation of a passenger bus exceeding the statutory weight limits. The 1977 General Assembly on June 16, 1978, amended G.S. 20-118(8) by repealing the prohibition against the issuance of overweight permits for passenger buses, and by providing that "Unless the applicant holds a special permit from the Department of Transportation, no license shall be issued to any passenger bus", for operation on the highways, which exceeds the weight limits specified therein. Chapter 1178, 1977 Session Laws. The license issued by the Commissioner of Motor Vehicles authorizes the operation of the "passenger bus" upon the highways of the State, including those maintained by the municipality. A permit from the Department of Transportation is a prerequisite for the licensing of "passenger buses", which will exceed the weight limits in G.S. 20-118(8). Therefore, this Office is of the opinion that the State has preempted the issuance of special permits for overweight passenger buses for the purpose of licensing under the provisions of G.S. 20-118(8).

Rufus L. Edmisten Attorney General

Eugene A. Smith Special Deputy Attorney General