Planopedia

State preemption is a term used to describe the legal powers of state governments to create regulations that supersede local regulations. State preemption is usually assessed in oppositional relationship to local control—the latter locates legal power at the city or county level of governance, and sometimes even at the council district or neighborhood level.

State preemption is invoked in cases where state and local laws conflict, which in the case of land use regulation can occur in a number of circumstances. According to a post on the California Land Use Blog, state and local laws can conflict when local laws duplicate state laws, when local laws contradict state laws, and when local laws enter into legal areas already covered by state laws. The legal powers of states versus local governments are a subject of frequent, constant, and ongoing litigation. Federal powers can also preempt both state and local powers, adding an additional level of complexity to the relationship.

In recent years, state preemption has played an increasingly important role in land use regulation as states have stepped in to exert legal power over local governments on issues like zoning of single-family neighborhoods, marijuana legalization, the informal economy, traffic safety technology, and electric bikes and scooters.

In the contemporary land use planning context, the use of state preemption to override the precedent set by local single-family zoning codes offers perhaps the most relevant and informative example of the state preemption concept. In 2019, Oregon made history by becoming the first to pass a statewide law (House Bill 2001) requiring cities to allow the development of duplexes, triplexes, fourplexes, and "cottage clusters" on land previously reserved for single-family houses. Since Oregon passed House Bill 2001 in June 2019, numerous other states have explored similar preemption of local land use power to open single-family neighborhoods to other forms of residential construction, including Maryland, Virginia, Nebraska, California, and Washington. More and more frequently, statewide reforms of local land use regulations are considered a tool for addressing rising housing costs and automobile dependency.

State preemption is always a controversial proposition, but especially so in matters of land use regulation, where property owners and communities tend to coalesce around local control as a tool of self-determination. It's important to recognize, however, the dual-edged sword of state preemption: while in some instances it has been used to loosen local regulations, like in the land use examples above, state preemption can also be used to impose higher levels of regulation. Counterintuitively, statewide laws can also have the effect of providing local governments and individuals with more power to determine outcomes in land use—such as the state laws requiring environmental review (e.g., the California Environmental Quality Act and the Washington State Environmental Policy Act). Because state preemption and local control are viewed as either desirable or pernicious depending on their utility relative to specific issues, expressing an ideological preference for either fails to anticipate the potential for hypocrisy in the future.