LEGAL Q&A: What is Preemption?

Kate Miller, UNH School of Law Intern

Q:  What is Preemption?

A:  Ever wonder what to do when your municipality’s ordinances clash with state statutes? It’s a fair question. Conflicts between municipal and state and state and federal laws naturally arise as new laws are made and modified at each level of government.  Under Article VI, Clause 2 of the U.S. Constitution, perhaps better known as the Supremacy Clause, “This Constitution…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Essentially, this means that when a state law contradicts a federal law, the federal law trumps the state law. This is called preemption. Preemption can apply to municipal law as well: when a municipal ordinance or regulation contradicts a state or federal law, the state or federal law trumps it. Broadly speaking, a higher level of government may reserve the regulation of a given field of issues for itself and prohibit a lower level of government from regulating issues within that field.

Q:  What is “Home Rule?”

A:  Some states, such as Massachusetts and Connecticut, are “home rule” states, meaning that to a certain degree, their municipalities hold inherent power and preemption of municipal regulation by state law is less prevalent. New Hampshire, however, is not a “home rule” state, meaning that all powers held by municipalities are afforded to them by the State and they do not have any independently (though it is not uncommon for state statutes to allow or encourage municipalities to make further regulations on a given issue, they must do so explicitly). In New Hampshire, if a municipal regulation conflicts with a state regulation, the state regulation preempts it.

One of New Hampshire’s most salient preemption cases and one of the rare New Hampshire cases that have made it all the way up to the United States Supreme Court is Dan’s City Used Cars, Inc. v. Pelkey. In this case (begun in 2007 and eventually settled in 2013), Robert Pelkey of Manchester fell ill for several months and was unable to move his car from his apartment building’s parking lot, where it was required that tenants move their cars to allow for snow clearing. Pelkey’s landlord had his car towed by Dan’s City Used Cars, Inc., representatives of which tried to notify Pelkey that they had his car. However, the notification was not received, as Pelkey was hospitalized and could not receive mail. Several months later, Dan’s City scheduled Pelkey’s car for auction and even though Pelkey’s lawyer contacted Dan’s City to stop the auction and pay any charges on the car, Dan’s City traded the car away without notice. Pelkey then sued Dan’s City for violation of the New Hampshire Consumer Protection Act (RSA 358-A:2), specifically RSA 262:31-40,  which provides regulations for the towing, storing, and disposal of vehicles. Dan’s City asserted that this state law was preempted by the Federal Aviation Administration Authorization Act of 1994 (FAAAA), which prohibits States from regulating the “price, route, or service of any motor carrier…with respect to the transportation of property.” 49 U.S.C. §14501(c)(1). If Dan’s City’s trading away of Pelkey’s car was in fact “transportation of property”, then the FAAAA would preempt the state statutes, exonerating Dan’s City. However, the actual transportation of Pelkey’s car by Dan’s City occurred well prior to its trading, and Pelkey was suing Dan’s City for the trading, not the towing. Because of this and because the intention behind the FAAAA was to regulate transportation related to interstate commerce and neither of the statutes involved in Pelkey’s case affected interstate commercial transportation, the Supreme Court held that the FAAAA did not preempt the state statute.

Q:  Is There a New Hampshire Specific Case Regarding Municipal Preemption?

A:  An example of a case in which a municipal regulation was preempted by New Hampshire State law is Lakeside Lodge, Inc. v. New London from 2008. In this case, Lakeside Lodge, Inc.’s property on the bank of Lake Sunapee in New London included a private dock, which its residents had used since the 1980s. In 1991, New London enacted a zoning ordinance which zoned the lot on which Lakeside has its property as part of a “Shore Land Overlay District” and imposed limitations on use of waterfront common areas. Years later, in 2002, New London informed Lakeside that its use of the dock violated this ordinance; Lakeside argued that it had used the dock the same way since well before the 1991 ordinance was made and it had never been an issue. Lakeside applied for an exemption with the New London Select Board; when this failed, it applied to the Zoning Board of Adjustment arguing that Lakeside’s use did indeed predate the ordinance. Finally, in 2007, the Zoning Board issued a decision that allowed for more expansive use of the dock by users and their guests, but intimated that renting dock space exceeded the scope of the “personal” use claimed by Lakeside’s three owners; this was affirmed by the Superior Court. On appeal of this issue to the New Hampshire Supreme Court, Lakeside argued that New London’s hairsplitting about its compliance with the 1991 ordinance was erroneous because the state legislature had preempted municipal regulation of waterfront property use. RSA 233-A, RSA 270, RSA 271, and RSA 438-B delineate the State authority over boating and docking regulations on public water; the State does give municipalities authority to regulate public docks in RSA 47:17, VII, but not private docks. Because of this, the Court held that State law did indeed preempt the ordinance and ruled in favor of Lakeside.

Q:  Is There a More Recent Case of Preemption?

A:  For a more recent example of a preemption issue that affects many municipalities, under RSA 430:49, the State of New Hampshire’s Pesticide Control Board holds the power to regulate the use of pesticides exclusively, preempting any municipal ordinances that could potentially conflict with the statute. This means that all municipal ordinances and rulings regarding pesticide use must comply with State regulations. Some towns have ordinances or town meeting votes attempting to prohibit utility companies’ use of certain defoliant pesticides, which they spray on rights-of-way across the state at routine intervals to reduce overgrowth. However, as seen in Salisbury v. New England Power Co., the State law allowing and regulating this spraying (NH Admin Code Pes 505.01) trumps town ordinances prohibiting it. The Pesticide Control Board does require that utility companies notify residents living near the rights-of-way being sprayed along with the town officials no fewer than forty-five days in advance of spraying (Pes 505.06). If any official or resident strongly opposes the spraying of defoliants, RSA 430:44 allows for aggrieved parties to appeal to the board for review, with the board then having the power to potentially affirm, deny, or alter the plan.

Katherine (Kate) Miller served as NHMA’s summer intern from the University of New Hampshire School of Law.  If you have questions about local ordinances and their relationship with State statutes, reach out to