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.
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with the assumption that the states' police powers were not to be superseded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.
" . . . 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,
" . . . 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,
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 ordinance duplicates state law;
- The ordinance contradicts a state statute which expressly
occupies the field; and,
- The state occupies the legislative area by implication.
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:
- The general scheme of a subject's state regulation must be so detailed
and thorough that it indicates an intent to preclude local regulation. Chavez
v. Sargent, (1959) 52 Cal.2d 162, 177, as cited in In re Lane,
(1962) 58 Cal.2d 99, at 102.
- Implied preemption occurs when the field that the local ordinance
covers is deemed fully occupied by the state, even though the ordinance's
language might not expressly conflict with state law. In re Lane,
(1962) 58 Cal.2d 99, at 108.
- Where matters of statewide concern are involved, home rule charter
cities remain subject to and controlled by applicable general state laws,
regardless of their charters' provisions. Committee of Seven Thousand
v. Superior Court, (1988) 45 Cal.3d 491, 505, citing Bishop v. San
Jose, (1969) 1 Cal.3d 56, 62-63.
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
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."
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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
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
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.
Next: PART TWO -- LOCAL LAND USE PREEMPTIONS
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State of California
Governor's Office of Planning and Research
1400 Tenth Street
Sacramento, CA 95814