Part One

The Essentials of Preemptions

In order to appreciate the significance of preemptions to land use planning, an understanding of how they are legally defined and how they evolved from constitutional law is essential.


Legal experts define the concept of preemptions as follows:

(1) "A doctrine according to which legislation by the national government explicitly displaces or conflicts with state legislation or has so pervaded a particular area or topic of regulation as to preclude state legislation on the same subject."

(2) "[The d]octrine adopted by the U.S. Supreme Court holding that certain matters are of such a national, as opposed to local, character that federal laws pre-empt or take precedence over state laws. As such, a state may not pass a law inconsistent with the federal law. Examples are federal laws governing interstate commerce."

Simply stated, a land use preemption is the legal authority of a higher level of government to supersede or displace a subordinate local government's land use regulation through statutory means, case law precedent, or other preemptive authority, such as a regulation.

Constitutional Background

One of the legal foundations for preemptions is the U.S. Constitution's "Supremacy Clause" which declares that the Constitution, as well as all laws and treaties made under U.S. authority, is the "supreme law of the land" and thus enjoys legal superiority over any conflicting provision of a state constitution or law (Article VI, Section 2).

In evaluating challenges to a state statute under the Supremacy Clause, courts use a standard avenue of inquiry:
". . . (the court's) inquiry is directed to whether Congress intended to prohibit states from regulating in such a manner . . . (starting) with the assumption that the states' police powers were not to be superseded unless that was the clear and manifest purpose of Congress." Pacific Legal Foundation v. State Energy Resources Conservation and Development Commission, (9th Cir. 1981) 659 F.2d 903, at 919, citing Rice v. Santa Fe Elevator Corp., (1947) 331 U.S. 218, 230.
Thus, the Supremacy Clause is supreme when the federal statute is clearly known to overrule the state statute with which it conflicts.

The Supremacy Clause operates in tandem with the "Property Clause" to establish the authority for preemptions. Article IV, section 3 grants Congress the authority to regulate federal property. Under the Supremacy Clause and the Property Clause of the U.S. Constitution, the Congress has preemptive power over state and local control of federal lands. Mayo v. United States, (1943) 319 U.S. 441.

Another important constitutional foundation of preemptions is the concept of "sovereignty." Sovereignty is defined as "(t)he supreme, absolute . . . power by which any independent state is governed; supreme political authority; paramount control of the constitution and frame of government and its administration." When the sovereign power of a governmental body pervades any given field of legislation, including planning and zoning law, the government is said to "occupy the field."

The concept of sovereignty suggests a hierarchy of governmental authority that has the federal government at its apex, then moves downward to state government, and follows to local governments, such as cities, counties, villages, and townships.

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Current Federal Judicial Standards

Status of Preemption Law

A U.S. District Court decision issued in December 1988 summarizes the status of federal judicial standards used to determine when federal regulations preempt state laws:

"There are essentially three ways in which a federal law may preempt a state law: (1) the federal law may contain an explicit preemption provision (express preemption); (2) the federal legislation may be sufficiently comprehensive to create the inference that Congress intended to occupy an entire field of regulation [i.e., the preemption could be inferred from a comprehensive scheme of federal regulation that left no room for supplementary state regulation] (implied preemption); and (3) although the federal law does not entirely displace state law, the particular state regulation actually conflicts with the federal law ..." Ogden Environmental Services v. City of San Diego, 88 Daily Journal D.A.R. 15264, 15266-15267.

Although this case manifests three distinct ways of judicial identification of preemptions, federal case law over the years has established several other corollaries that supplement these three judicially created preemptions.

1. Express Preemptions

" . . . Congressional intent to preempt must be unambiguous and cannot be inferred from (the) mere fact that (the) federal statute is detailed and complex or because state legislation touches an area of predominantly national concern." Pacific Legal Foundation v. State Energy Resources Conservation and Development Commission, (9th Cir. 1981) 659 F.2d 903.

2. Implied preemptions

". . . When a federal statute does not explicitly prohibit state regulation in the same field, congressional intent to preempt may be inferred from nature of federal regulatory scheme or from subject matter being regulated . . . (Pacific Legal Foundation).

" . . in a preemption test the fundamental inquiry is whether local legislation will conflict with national policy . . .; if the activity is of predominantly local interest then state action may be permissible, but if a uniform national rule is necessary then federal preemption will be implied." California v. Zook, (1949) 336 U.S. 725, 728 [93 L.Ed. 1005, 1008, 69 S.Ct. 841.

3. Conflicts with Federal Law

" . . . a conflict between state and federal law . . may arise when the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, (1941) 312 U.S. 52, 67, 6 S.Ct. 399, 404, 85 L.Ed. 581, as cited in Ogden Environmental Services v. City of San Diego, 88 Daily Journal D.A.R. 15264, 15266-15267.

" . . . Even if Congress did not intend to preempt all state legislation in a given field, a state law must be held invalid to (the) extent that it actually conflicts with federal law . . . (Pacific Legal Foundation, supra.).

" . . . State regulations are preempted when a conflict would arise if compliance with both federal and state regulations were impossible or if state regulations stood as an obstacle to achievement of congressional objectives . . . (Pacific Legal Foundation, supra.) and;

" . . . Courts are not to seek out conflicts between state and federal regulation where none clearly exist" (Pacific Legal Foundation, supra.)

Interaction Between Preemptions and Other Laws

On occasion other federal laws will interact with preemption principles to create nuances in the way courts treat preemptions. The following are two examples of these nuances.

First, one well-settled principle holds that the federal government has preemptive power over state and local regulatory control of federal land. However, this power is not so complete and overpowering that the federal government may summarily dismiss or ignore other federal laws. For example, one federal court ruled that certain laws like the National Environmental Policy Act (NEPA) require close scrutiny of federal projects deviating from local land use regulations. Maryland National Parks and Planning Commission v. Postal Service, (D.C. Cir. 1973) 487 F.2d 1029.

Another instance of federal laws interacting with preemption principles is found in the Intergovernmental Cooperation Act, which encourages cooperation with local zoning and land use practices. (40 U.S.C. sec. 531; 42 U.S.C. sec. 4231 and 6506).

This act also requires federal agencies to consider state and local building regulations to the fullest extent possible in planning federal projects. Of course, the question of what constitutes a federal project arises occasionally. For example, in a recent California ruling, the California Court of Appeal refused to define as a federal project a private developer's construction of an office, automotive shop, and a radio shop on private property but designed to U.S. Forest Service specifications, and intended for lease to that agency. The developer sought damages for delays encountered after being forced to obtain county discretionary permits. He asserted that the Intergovernmental Cooperation Act preempted county regulations. The court found no merit in his assertion, and refused damages. Smith v. County of Santa Barbara, (1988) 203 Cal.App.3d 1415. Citing an earlier precedent, the court held that "[u]nless a state regulation places a prohibition on the federal government, a regulation that merely touches the activities of the federal government is not barred by the supremacy clause of the United States Constitution." Hancock v. Train, (1976) U.S. 167, at 179.

So far, no case law has emerged yet to create a third nuance-one which would test the Federal Urban Land Utilization Act (40 U.S.C. 531-535). This statute is a congressional directive designed "to promote more harmonious intergovernmental relations and encourage sound planning, zoning, and land use practices" through federal compliance with local zoning.

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The California Perspective

Just as the U.S. Constitution forms the basis for Federal case law on preemptions and legal principles therein, the California Constitution forms the basis for California case law on preemptions. As with federal case law, the sovereignty doctrine figures heavily in the evolution of California law.

The state constitution authorizes cities and counties to enact "and enforce . . . all local police, sanitary and other ordinances and regulations not in conflict with general laws." (Article XI, section 7). However, another constitutional provision, (Article XI, section 5(a)) tempers this authority by enabling charter cities to enact regulations "in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters and in respect to all other matters they shall be subject to general laws . . ."

California's legal test for determining if state law preempts a local regulation consists of deciding whether the regulation in question is of "statewide concern" or "just" another "municipal affair." If a regulation is a matter of statewide concern, then it is not a municipal affair, and thus is considered to conflict with general laws.

Determining a "statewide concern" entails a three-prong test. A local regulation would be preempted if the court were to find that any one of the following three circumstances fit: Duplication of State Law

The first of these three tests of statewide concern is fairly clear, and one California Supreme Court decision remains a leading guide, Abbott v. City of Los Angeles, (1960) 53 Cal.2d 674. This case held: "The denial of power to a local body when the state has preempted the field is not based solely on the superior authority of the state. It is a rule of necessity, based upon the need to prevent dual regulations which could result in uncertainty and confusion."

Contradiction of State Law

Three cases provide guidance on contradictions between a local ordinance and a state statute.

Ex parte Daniels
held that a local ordinance is invalid if it prohibits what state statutes expressly permit ((1920) 183 Cal. 636, 647).

In re Portnoy
held that a local ordinance is preempted if it permits what state statutes expressly prohibit ((1942) 21 Cal.2d 237, 241).

People v. Moore
held that a local ordinance is preempted if the legislature expressly provided in statutory language that there should be no more legislation in the field ((1964) 229 Cal.App.2d 221, 226-27 964).

Preemption by Implication

Preemption by implication requires more explanation, as observers agree it is confusing. California courts tend to regard local land use regulations as generally not preempted by implication if the local interest at issue is one that may vary or differ from one jurisdiction to the next. Nevertheless, case law has shown that a court may declare an implied preemption to be a bona fide preemption without much precedent. The following ground rules concerning preemption by implication have evolved in California:

Determining Statewide Concern

Commentator David McLeod noted some examples of statewide concern that earlier California court decisions have provided:
For example, some of the areas considered to be of statewide rather than local importance are: the control of public streets and highways; . . . elimination of railroad grade crossings; . . . registration of criminals; . . . requirements of a loyalty oath at a university; . . . and, ironically, the creation of a city charter. Some matters which have been considered not to be of statewide concern and thus subject to local regulation were: the construction and maintenance of streets; . . . building regulations concerning construction, improvements or alterations; . . . and procedures for issuance of bonds for public park acquisition . . .

When Regulations Are Not Preemptions

Not only have California courts developed two tests for determining when preemptions exist, they have also developed two approaches for determining when local regulations are not preempted. The two approaches are known as the (1) balancing of state and local interests, and (2) characterization of the subject matter.

The Balancing Test

In the balancing test, the local regulation must be shown to reflect a strong local interest which will prevail when balanced against a state regulation with which it conflicts. Its California precedent, People v. Jenkins, (1962) 207 Cal.App.2d 904, held that local regulation of certain subjects is valid if it demonstrates a strong local interest that justifies the regulation. The court noted that a Los Angeles ordinance prohibiting persons from carrying guns in a car was justified because Los Angeles is so densely populated as to have a strong local interest which needed protection.

Characterization of the Subject Matter

When using this approach, courts characterize the subject matter in question as a field that the state does not preempt. In People v. Lindenbaum, (1970) 11 Cal.App.3d 1, the leading case that represents this approach, the court upheld a local ordinance that dealt with the licensing of employee conduct in cocktail lounges, a field not occupied by state law. The court recognized that this regulation was not the same as a regulation which would regulate the criminal aspects of other activities that may occur in such establishments. Regulation of criminal aspects of such activities, on the other hand, are preempted by state law. Thus, local regulation can achieve the desired effect of regulating a type of activity by coming close enough to an occupied field so as not to conflict with it. David McLeod deems the characterization approach stronger of the two.

Recent California case law has presented the following corollary. Implied preemption by legislative intent cannot occur if the Legislature has expressed its intent to permit local regulations. By the same token, there can be no implied preemption when the statutory scheme recognizes local regulations. People ex rel. Deukmejian v. County of Mendocino, (1984) 36 Cal.3d 476, 485.

A more recent case, Casmalia Resources, Ltd. v. County of Santa Barbara, (1987) 195 Cal.App.3d 827, has supported this corollary. The case held that there cannot be an implied preemption when a reasonable statutory construction indicates that the Legislature intended to permit local regulation in the given arena of land use. "The language of [Government Code] section 25149 indicates that reasonable local regulation will be tolerated. Where, as here, the [sic] a reasonable construction of a statute is that the Legislature intended to permit local regulation, no implied preemption will be found." Casmalia Resources.

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Classifying Preemptions

If anything is evident from the preceding sections, it is that the body of case law and statutes concerning preemptions is finely dispersed, yet confusing decisions are plentiful. That is, case law uncovers a wide diversity of circumstances where courts have found preemptions to occur. Also plentiful is the range of subject matter that preemptions cover, both judicial and statutory.

To help keep track of preemptions, planners might attempt to categorize them according to their characteristics. There are at least four ways to distinguish and categorize the ways in which preemptions operate. One method of classifying a preemption is to study its degree of impact-is it a full preemption in which sovereign legislation fully occupies the field, or is it only a partial preemption controlling only a part of subject area? For example, community care facilities are exempt to a degree from local zoning ordinances because state law permits them to be located in residential zones. Yet, local governments still have the authority to place restrictions on building heights, setbacks, lot dimensions, or sign placement.

Another method is to classify a preemption according to its level of governmental origin. That is, does it emanate from the federal government or the state? By now it is obvious that both levels of government are sources of many statutory preemptions.

A third way is to classify the preemption according to the type of official authority that created it. Preemptions are generally created by statute, but on occasion they are created by case law or by regulatory authority. The State Office of Administrative Law publishes administrative regulations in the form of the California Administrative Code. Such administrative regulations have the same effect as law, and are considered to be tantamount to statutory law. The same holds true for federal agency regulations or rulemakings, i.e. the Code of Federal Regulations published in the Federal Register. Thus, the key questions to ask are: Is it a statutory preemption, or is it founded in case law? Is its source a California Attorney General's Opinion or an agency regulation? It is important to be aware that official Opinions of the California Attorney General have no legal effect, for they merely reveal what line of reasoning the Attorney General would take on a legal issue if it were to be argued in court. Nevertheless, when arriving at decisions, courts generally accord substantial weight to Attorney General's Opinions. Mountain View Union High School District of Santa Clara County v. City Council of Sunnyvale, (1959) 168 Cal.App.2d 89.

Fourth, preemptions may be classified by the general type of land use within which they fall. Part Two lists many preemptions in this manner by alphabetical order. For example, preemptions relating to health facilities for psychiatric care fall within the health services category.


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Prepared by:
State of California
Governor's Office of Planning and Research
1400 Tenth Street
Sacramento, CA 95814