The Doctrine of Preemption in the Context of Municipal Ordinances and Regulations

Town Meeting season is in full swing.  Every year questions arise regarding the legality of proposed ordinances, or amendments to ordinances, in the context of the preemption doctrine.    This article will succinctly explain the doctrine of preemption in the context of municipal ordinances and regulations and site a recent Supreme Court of New Hampshire decision regarding the same.

Generally speaking, towns and cities in New Hampshire are subdivisions of the state and only have the powers which are expressly or impliedly granted to them by the legislature.  See JTR Colebrook, Inc. v. Town of Colebrook, 149 N.H. 767, 772-73 (2003).  It is well settled law that towns cannot regulate a field that is preempted by the state.  Town of Hooksett v. Baines, 148 N.H. 625, 627 (2002).  Preemption may be express or implied.  Implied preemption could be found where the comprehensiveness of the state statutory scheme indicates a legislative intent to supersede a local regulation.  N. Country Envtl. Servs. V. Town of Bethlehem, 150 N.H. 606 (2004).  Accordingly, a conflict could exist where a municipal ordinance permits something that the state statute prohibits, or vice versa.  Id.  Such an ordinance would be expressly preempted.  On the contrary, a municipal ordinance would be impliedly preempted if it frustrated a state statute’s purpose or sought to regulate a field which was already comprehensively regulated by the state.  Id.  Both types of ordinances would be susceptible to challenge in the courts.

To add context, over the last few years, individuals, community organizations and legislators alike have led efforts to address the possession, use and sale of synthetic drugs in New Hampshire.  These efforts have come in response to an increase in the number of overdoses linked to the ingestion of synthetic drugs in the state, like the 44 reported overdoses related to people smoking or ingesting “Smacked” which led Governor Hassan to declare a state of emergency in August of 2014.  Despite the well-intentioned effort to further regulate synthetic drugs by many municipalities, New Hampshire’s Controlled Drug Act (RSA 318-B), which addresses “analog” or “synthetic” drugs, could be interpreted by a court as a comprehensive statute regulating the possession, sale, and use of these types of drugs such that municipalities are foreclosed from regulating similar conduct.  This specific issue has not yet been litigated in the New Hampshire Supreme Court.  Some municipalities have smartly limited the application of their ordinances, in this context, to possession and use on public property.

On the other hand, the New Hampshire Supreme Court could very well determine that due to the nature of synthetic drugs  (which are continually being chemically modified and altered by their manufacturers in an effort to frustrate legislative efforts to ban them), the state’s statutory scheme does not preempt local regulation.  After all, there is a legitimate argument that local legislative bodies are better suited to quickly assess and address issues like synthetic drug use when juxtaposed to the slow legislative process at the state level.  It follows that such legislative efforts at the local level could be interpreted as appropriate extensions of the state’s statutory scheme in a complicated and ever evolving are of law.

In the recent case of Prolerized New England Company v. City of Manchester, (Decided August 28, 2014), the Supreme Court determined that the City’s ordinances regulating junk and scrap metal dealers were not preempted by the state’s statutory scheme found in RSA 322.  The City’s ordinances, aimed at combating the growing problem of scrap metal theft, required, among other things, that scrap metal dealers 1) prepare transaction records electronically; 2) forward said electronic records to the Police Department within 24 hours of making the transaction; and 3) keep data to include digital photographs of the scrap metal seller and all items sold in the transaction.  The Court held that RSA 322, which delegates to local authorities the general regulation of junk and scrap metal dealers, did not constitute a comprehensive and detailed state regulatory scheme evincing an intent to occupy the field.

Ultimately, the fundamental question when analyzing the efficacy of any potential municipal ordinance or amendment thereto is: 1) whether the provisions of the new ordinance or regulation would directly conflict with an existing state statute; 2) whether the provisions of the new ordinance or regulation would frustrate a state statute’s purpose; and 3) whether an existing state statutory scheme evinces an intent to occupy the area sought to be regulated.  Municipalities and individuals authoring petition warrant articles alike should be leery if the answer to any of those questions is “yes.”