Preemption, within the scope of local ordinances, simply means that some matters are of state importance rather than local importance. Why could preemption affect you? Preemption can affect where certain lawsuits are held and which laws are applied – ultimately affecting the likelihood of your lawsuit succeeding.
For example, in Maple BPA, Inc., v. Charter Township of Bloomfield, the plaintiff property contained a mixture of land uses, including fuel pumps and a convenience store. The plaintiff wished to sell packaged alcohol on its property and applied to the Michigan Liquor Control Commission (the Commission). The Commission merely requires that alcohol be sold at least 50 feet from where gasoline is pumped.
However, shortly after plaintiff’s application, the Township of Bloomfield passed a resolution that it did not want to allow “gas stations to sell beer and wine” and that Maple BPA’s registers were too close to where customers dispensed fuel. The Commission denied plaintiff’s application, finding that plaintiff did not comply with Bloomfield Township’s zoning ordinance. Plaintiff appealed.
State law preempts a local regulation if (1) the local regulation directly conflicts with a state statute, or (2) the statute completely occupies the field that the local regulation attempts to regulate.[1] The Michigan Supreme Court has established four guidelines to determine whether a statute completely occupies a field:
- First, where the state law expressly provides that the state’s authority to regulate in a specified area of the law is to be exclusive, there is no doubt that municipal regulation is pre-empted.
- Second, pre-emption of a field of regulation may be implied upon an examination of legislative history.
- Third, the pervasiveness of the state regulatory scheme may support a finding of pre-emption. While the pervasiveness of the state regulatory scheme is not generally sufficient by itself to infer pre-emption, it is a factor, which should be considered as evidence of pre-emption.
- Fourth, the nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to serve the state’s purpose or interest.[2]
First, the state law does not expressly provide the Commission exclusive control over the sale of alcoholic beverages since Commission states that an application for a liquor license “shall be denied if the commission is notified, in writing, that the application does not meet all appropriate…local…zoning…ordinances…”[3] In the same breath, the Commission’s decision to recognize local ordinances strongly suggests that the Legislature did not intend to preempt every local zoning statute that concerns alcoholic beverage sales.
Additionally, the state law and Township’s ordinance are not in conflict since the ordinance is not more restrictive – it does not provide any further constraint, or prohibit what the statute permits. For these reasons, the Michigan Court of Appeals concluded that the state law does not preempt the field of liquor control regulation.
Whether a local ordinance is preempted by state law is generally a question of law and it is recommended that an experienced lawyer be consulted where the issue can potentially arise.
This article was authored by law clerk Roger Leshinsky. Please contact Demorest Law Firm for more information.
