Preemption of Municipal Regulation by the Commonwealth

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Preemption of Municipal Regulation by the Commonwealth

Source: Pennsylvania Legislator’s Municipal Deskbook, Third Edition (2006)
Pennsylvania General Assembly * Local Government Commission Page 17

As discussed previously in this publication,1 under Dillon’s Rule, municipalities generally do not have inherent power to act but must rely on delegated authority from the Commonwealth. In most cases, if municipalities are otherwise authorized to act, pursuant to their subordinate police power, they may promulgate regulations even though the state has also acted in that area. These municipal regulations can be supplemental or additional to those of the Commonwealth, and they must be reasonable and not offensive to the spirit of the state’s regulatory provisions. Even where local regulation is authorized, if it contains provisions that contradict or are inconsistent with state law, those provisions would be superseded.

Thus, one can say that the mere fact that the state has legislatively regulated a particular field does not mean that the state has completely preempted the field, thereby preventing any municipal regulation of that same subject matter. The doctrine of “preemption,” as denominated by the courts, effectively provides that certain legislation of the Commonwealth will disallow municipal regulation of the same subject or activities, even though such local regulation would otherwise be proper in the absence of a statewide scheme. The rationale for the legislative preemption of local action can be said to be based on the fact that municipalities are creatures of the Commonwealth, and their powers are derived from the Commonwealth. As such, municipalities have no inherent or independent authority to act contrary to the laws of the Commonwealth.
The Commonwealth may achieve legislative preemption of local regulation in one of two ways: (1) by explicit language within a statute establishing a statewide scheme of regulation; or (2) by implication when the state and local powers actually and materially conflict.
When there is no explicit preemption, and one is attempting to establish that preemption is to be implied, the courts look to legislative intent. To ascertain legislative intent with regard to preemption of a statewide statutory scheme over a local ordinance, the courts will consider the following pertinent questions:
(1) Does the ordinance conflict with state law, either because of conflicting policies or operational effect? (e.g., Does the ordinance forbid what the Legislature has permitted?)
(2) Was the state law intended expressly or impliedly to be exclusive in the field?
(3) Does the subject matter reflect a need for uniformity?
(4) Is the state scheme so pervasive or comprehensive that it precludes coexistence of
municipal regulation? and
(5) Does the ordinance stand as an obstacle to the accomplishment and execution
of the full purposes and objectives of the Legislature?3

Courts have found an intent to totally preempt local regulation in areas including alcoholic beverages,
banking, and anthracite strip mining. Also, an example of an explicit preemption, for both political subdivisions and home rule municipalities, exists in Chapter 5 (Nutrient Management and Odor Management) of the Agricultural Code,4 where the statute provides that it is of statewide concern, and that it is to occupy the whole field of nutrient management to the exclusion of all local regulation.

1 See Deskbook article entitled, “Dillon’s Rule – State Primacy Over Local Governments.”
2 For example, local zoning ordinances are subordinate to the Municipalities Planning Code, 53 P.S. § 10101 et seq. (MPC), and, thus, to the extent that a zoning ordinance is inconsistent with the MPC, the MPC takes precedence over and invalidates the zoning enactments. See 53 P.S. § 10103.
3 See Liverpool Township v. Stephens, 900 A.2d 1030, 2006 WL 1667455 (Pa. Cmwlth. 2006); Commonwealth of Pennsylvania v. Brandon,
872 A.2d 239 (Pa. Cmwlth. 2005); Klein v. Straban Tp., 705 A.2d 947 (Pa. Cmwlth. 1998).
4 3 P.S. § 501 et seq.
5 3 P.S. § 519.