A | B | C | D | E | F | G | H | I | J | K | L | M | N | O | P | Q | R | S | T | U | V | W | X | Y | Z | AA | AB | ||
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1 | SAFE Cities Resource: State-by-state Assessment of US City and County Powers | ||||||||||||||||||||||||||||
2 | Summary | Home Rule, Dillon's Rule, Zoning | Constraining factors | Other factors | |||||||||||||||||||||||||
3 | State | Good state for local government policies that restrict fossil fuel infrastructure and accelerate electrification? | Summary Thoughts | Municipal Home Rule | County/ Borough Home Rule | State has Dillon's Rule, which affirms the previously held, narrow interpretation of a local government's authority, in which a substate government may engage in an activity only if it is specifically sanctioned by the state government | Notes about Dillon's rule | Municipal zoning powers? | County/borough zoning powers? | Legal Roadblocks? | Details of roadblocks, including existing Super-Preemption Laws https://www.nlc.org/wp-content/uploads/2017/02/NLC-SML-Preemption-Report-2017-pages.pdf | State-specific quirks that might present potential roadblocks or opportunities | State-Specific Utility Regulations - some enabling, some constraining See Appendix A: Gas-Line-Extension Activities in Nine States: https://pubs.naruc.org/pub.cfm?id=B377212B-EFB0-EAB3-E524-88AB6D4332A6 | Additional resources - articles, research links | |||||||||||||||
4 | AK | Yes | Major cities have home rule and state has no Dillon's rule. Ranked 5th on Brooking's report of states ranked by degree of local discretionary authority. Seems like a good state for SAFE policies. | Y 11 of 19 organized burroughs are charter/home rule burroughs https://ballotpedia.org/Cities_in_Alaska https://en.wikipedia.org/wiki/List_of_boroughs_and_census_areas_in_Alaska | 10 of 144 municipalities are charter/ home rule cities https://ballotpedia.org/Cities_in_Alaska | N https://en.wikipedia.org/wiki/List_of_boroughs_and_census_areas_in_Alaska | Article X, Section 1 of the Alaska Constitution abrogates Dillon's Rule for all municipalities. Liberati v. Bristol Bay Borough, 584 P.2d 1115 (Alaska, 1978). | Y http://dot.alaska.gov/creg/planning/assets/Planning_Power_for_Alaskan_Communities.pdf | Y | M | Alaska is 61% federal land, which may pose some potential roadblocks for state-wide legislation | AK has one unincorporated borough that incorporates nearly half of the state's land area. This vast area has no local government other than that of school districts and municipalities within its limits. Many of the villages do have tribal governments, however. Except within some incorporated cities, all government services in the Unorganized Borough, including law enforcement, are provided by the state or by a tribal government. https://en.wikipedia.org/wiki/Unorganized_Borough,_Alaska | |||||||||||||||||
5 | AL | No | Alabama is basically a no-go zone for SAFE Cities and Counties, with virtually all home rule held by state gov't. "Instead, most counties in the state must lobby the Local Legislation Committee of the state legislature to get simple local policies approved, ranging from waste disposal to land use zoning." | N | Extremely limited (2 of 67 counties) | Y for counties | J. Michael Allen, "Alabama Constitutional Reform", 53 Alabama Law Review 1 | N | N | Y | |||||||||||||||||||
6 | AR | Maybe | Act 1187 of 2011 repealed Dillon’s Rule and extended certain powers granted to cities of the first class (>2500 people) to all municipalities. ACA § 14-43-602 gives a municipality the authority to “perform any function and exercise full legislative power in any and all matters of whatsoever nature pertaining to its municipal affairs including, but not limited to, the power to tax.” ACA § 14-43-601 defines “municipal affairs” as “all matters and affairs of government germane to, affecting, or concerning the municipality or its government except state affairs subject to the general laws of the State of Arkansas,” which are listed in §14-43-601(a)(1). In other words, municipalities and counties in Arkansas theoretically have legal local authority, though this has not been tested because there do not exist any charter cities or counties in Arkansas. https://static.ark.org/eeuploads/arml/MayorCouncil_Guidebook_2015_WEB.pdf | Y (charter cities are allowed but thus far inexistent) | Y (charter cities are allowed but thus far inexistent) | Y | In 1971 the state passed a Home Rule Act that purportedly freed Arkansas cities from the rigors of the so-called Dillon Rule, which was said to severelcircumscribe municipal power. Dictum in Paragould Cablevision Inc. v. City of Paragould, 305 Ark. 476, 809 S.W.2d 688, Util. L. Rep. P 26,093 (1991) states that Arkansas' home rule statute amounts to "limited home rule" (referring to the fact that the provision is not contained in the state constitution) and does not address ultra vires acts by municipalities. The dictum suggests that the Arkansas Supreme Court will continue to use Dillon's Rule to construe grants of authority under home rule provisions. The earlier case of Tompos v. City of Fayetteville, 280 Ark. 435, 658 S.W.2d 404 (1983) suggests that home rule abrogates Dillon's Rule | Y | Y | N | Arkansas formerly banned cities and towns from building high-speed internet networks, but passed a bill in 2019 to repeal that law: https://www.citylab.com/life/2019/04/arkansas-internet-municipal-broadband-preemption-laws/587263/ | ||||||||||||||||||
7 | AZ | No | Local city/county zoning laws vary: https://www.mandglawgroup.com/2019/05/06/understanding-zoning-and-land-use-in-arizona/ | Y 19 of 91 municipalties have home rule | Y (but inexistent) | Y | City of Scottsdale v. Superior Court, 103 Ariz. 204, 439 P.2d 290 (1968) | Y | Y | Y | Arizona in 2016 passed the "mother of all local preemption bills" which withholds funds from localities that pass regulations or ordinances that contradict state law and leaves making that distinction to the state attorney general https://www.governing.com/topics/transportation-infrastructure/gov-climate-change-states-cities-preemption.html | Arizona passed HB 2686 in February, 2020, which prevents cities or towns from imposing greater fees or restricting permits for buildings that use certain utilities, like natural gas | https://www.phoenixnewtimes.com/news/natural-gas-protection-bill-southwest-gas-arizona-legislature-11442203 https://legiscan.com/AZ/bill/HB2686/2020 | ||||||||||||||||
8 | CA | Yes | CA state law explicity allows municpalities to set local buliding codes that have higher energy efficiency standards than state codes. https://insideclimatenews.org/news/12122019/natural-gas-ban-cities-legal-cambridge-brookline-massachusetts-state-law-berkeley-california CA also considers oil and gas operations as land-use issues that are handled by the local city or county. | Y 361 of 482 municipalities are charter/home rule cities | Y 121 of 361 municipalities are charter/home rule cities | Y (except charter cities) | Charter cities enjoy broad home rule powers with no Dillon's Rule limitations. However, California courts employ Dillon's Rule to interpret the authority of counties and general law cities (Albuquerque; Mezzetta v. City of American Canyon, 78 Cal.App.4th 1087, 93 Cal.Rptr.2d 292 (2000); Irwin v. City of Manhattan Beach, 415 P.2d 769 (Cal. 1966) | Y (for charter cities) | Y | M | CA Senate Bill 330 prevents local agencies from putting up new barriers to housing production https://www.californialandusedevelopmentlaw.com/2019/10/22/new-california-law-restricts-municipalities-ability-to-limit-housing/ | ||||||||||||||||||
9 | CO | Yes | Colorado has a variety of different types of cities/towns with and without home rule. Need a place by place consideration. https://en.wikipedia.org/wiki/List_of_cities_and_towns_in_Colorado#Home_rule_municipality | Y 99 of 172 cities are subject to charter/home rule | Y 2 of 62 counties are subject to charter/home rule | Y (for statutory cities and towns and all counties) | Colorado courts use Dillon's Rule with respect to statutory cities and towns, and all counties. Board of County Commissioners v. Love, 470 P.2d 861 (Colo. 1970). City of Sheridan v. City of Englewood, 609 P.2d 108 (Colo. 1980). Article XX, Section 6 of the Colorado Constitution (giving charter home rule authority to cities and towns) altered the relationship created by Dillon's Rule in Colorado (for charter cities and towns). Fraternal Order of Police, Lodge No. 27 v. City and County of Denver, 926 P.2d 582 (Colo., 1996) | Y | Y | Formerly | Overturned earlier ban on municipal control over fracking: https://www.cpr.org/2019/04/16/polis-signs-colorados-oil-and-gas-overhaul-into-law-now-comes-the-hard-part/ Super interesting background on the whole thing here, related to SAFE: https://www.cpr.org/2019/04/08/meet-the-guy-who-helped-outlaw-fracking-bans-in-colorado-by-banning-fracking/ | ||||||||||||||||||
10 | CT | Yes | "Connecticut has a strong history and a rich tradition of home rule" https://www.stamfordadvocate.com/opinion/article/Op-ed-A-Connecticut-power-grab-6176108.php | Y 104 of 179 municialities are charter/home rule cities | Connecticut has no county governments | Y | Taxpayers Ass'n v. Board of Selectmen of Town of Windham, 662 A.2d 1281 (Conn., 1995) | Y Local authority to develop green infrastructure
https://portal.ct.gov/DEEP/Water/Watershed-Management/Low-Impact-Development-and-Green-Infrastructure-Municipal-Outreach | Y | N | |||||||||||||||||||
11 | DE | Yes | Municipalities can use laws and regulations, such as zoning and land development ordinances, to improve the quantity and quality of their water resources https://www.dvrpc.org/WaterQuality/MunicipalActions/ | Y 55 of 57 municipalities are charter/home rule cities | Y (but inexistent) | Y | State ex rel. Dept. of Transp. v. Penn Central Corp., 445 A.2d 939 (Del.Super.,1982). | Y | Y | N | |||||||||||||||||||
12 | FL | No | Y All 410 municipalities are charter/home rule cities | Y 20 of 46 counties are subject to charter/home rule | UNK | Yes: Barry v. Garcia, 573 So.2d 932 (Fla.App. 3 Dist.,1991). No: Article VIII, Section 2(b) of the Florida Constitution rejects Dillon's Rule. City of Boca Raton v. State, 595 So.2d 25, 17 Fla. L. Weekly S142 Fla., Feb 27, 1992 | Unknown | Unknown | Florida passed a "super-preemption" law in 2016 regarding firearms that holds city officials personally responsible for passing a bill contravening state law https://academic.oup.com/publius/article-abstract/47/3/403/3852645?redirectedFrom=fulltext | ||||||||||||||||||||
13 | GA | Maybe | Georgia passed a state bill to govern fracking that allows local governments to adopt zoning or land use ordinances that limit the location or timing of drilling and fracking activities: https://www.southernenvironment.org/news-and-press/news-feed/georgia-passes-modern-day-fracking-protections-into-law | Y All 535 municipalities are charter/home rule cities | Y | Y | City of Atlanta v. McKinney, 454 S.E.2d 517 (1995) used Dillon's Rule almost verbatim to construe municipal home rule authority | Y | Y | M | The Georgia general assembly has enacted a preemption statute barring local municipalities from enacting gun control https://giffords.org/lawcenter/state-laws/preemption-of-local-laws-in-georgia/ | ||||||||||||||||||
14 | HI | Yes | Hawaii is one of four states with a constitutional provision creating the right to a clean environment | Hawaii has no separately incorporated municipalities | Y 4 of 4 counties are charter/home rule | Y | In re Pacific Oil Transp. Co., 17 Haw. 575 (Haw.Terr., 1906) | Y | Y | N | |||||||||||||||||||
15 | IA | Yes | Y 5 of 947 municipalities are charter/home rule cities | Y (but inexistent) | N | An article of the Iowa Constitution rejected Dillon's Rule. City of Clinton v. Sheridan, 530 N.E.2d 690 (1995). However, the Iowa Supreme Court's opinion in Goodall v. Humboldt County, 575 N.W.2d 486 (Iowa, 1998) raises doubt in some minds as to whether Dillon's Rule has been resurrected in Iowa. | Y | Y | N | ||||||||||||||||||||
16 | ID | No | N (but one city, Bellevue, has retained a charter granted to it by the Territorial Legislature before the Idaho Constitution was adopted) | Y (but inexistent) | Y | Sun Valley Co. v. City of Sun Valley, 109 Idaho 424, 708 P.2d 147 (1985), O'Bryant v. City of Idaho Falls, 78 Idaho 313, 303 P.2d 672 (1956). | Unknown | Unknown | M | Idaho passed a state law forbidding localities from regulating the sale or use of plastic bags https://www.governing.com/topics/transportation-infrastructure/gov-climate-change-states-cities-preemption.html | Idaho is 61% federal land, which may pose some potential roadblocks for state-wide legislation | ||||||||||||||||||
17 | IL | Yes | Illinois is one of four states with a constitutional provision creating the right to a clean environment | Y 209 of 1298 municipalities are charter/home rule cities | Y (but inexistent) | Y (non-home rule municipalities only) | Illinois used Dillon's Rule to construe grants of authority to non-home rule municipalities, but Dillon's Rule is abrogated for home rule municipalities. Northern Illinois Home Builders Association, Inc. v. City of St. Charles, 297 Ill. App. 3d 730, 697 N.E. 2d 442, 231 Ill.Dec. 888 (2d District 1988). Village of Wauconda v. Hutton, 291 Ill.App.3d 1058, 684 N.E.2d 1364, 226 Ill.Dec. 161 (2d Dist. 1997). "Dillon's Rule of strictly construing legislative grants of authority to local governmental units has been abrogated by section 10 of Article VII of the 1970 Constitution [of Illinois] when local governments voluntarily cooperate to share services on a partnership or joint venture basis." County of Wabash v. Partee, 241 Ill.App.3d 59, 181 Ill.Dec. 601, 608 N.E.2d 674 (Ill. App. 5 Dist., 1993). About 10 percent of municipalities and only one county have home rule. The remainder are subject to Dillon's Rule (Krane, Rigos, and Hill, 128) | Unknown | Unknown | ||||||||||||||||||||
18 | IN | No | Dillon's rule applies to townships only | Y (but inexistent) | Y (but inexistent) | Y (townships only) | Osborne v. State, 439 N.E.2d 677 (Ind.App. 1 Dist., 1982). Dillon's Rule does not apply to other municipalities (Ind.Code §§ 36-1-3-2, 36-1-3-3, 36-1-3-4 and 36-1-3-5) | N | N | Y | "State-level legistlation has chipped away at local government authority within Indiana in recent years..." https://mckinneylaw.iu.edu/ilr/pdf/vol51p471.pdf | ||||||||||||||||||
19 | KS | Unknown | Dillon's rule doesn't apply to cities or counties | Y (but inexistent) | Y (but inexistent) | Y (not for cities and counties) | Applies only to the 304 school districts, 1360 townships, and 1369 special districts (Mckenzie, 2000). The 627 cities and 105 counties in Kansas enjoy home rule power (Mckenzie, 2000). "Home rule abolished the ‘Dillon Rule' under which cities were considered creatures of the legislature and could only exercise that authority conferred by statute" (Bigs v. City of Wichita, 23 P.2d 855, 863 (Kan. 2001)) | Unknown | Unknown | M | K.S.A. 2011 Supp. 12-16,124 preempts local zoning regulations that prohibit home-based businesses engaged in the sale of firearms or ammunition over the internet | ||||||||||||||||||
20 | KY | Yes | Y (but inexistent) | Y 1 of 120 counties are charter/home rule | Y | Krane, Rigos and Hill, 166. City of Bowling Green v. T & E Elec. Contractors, Inc., 602 S.W.2d 434 (Ky., 1980). Hardin County v. Jost, 897 S.W. 592 (Ky. App. 1995) appears to use Dillon's Rule. | Y | Y | "If a city has adopted zoning, it may provide for the zoning or land use regulation
of the area proposed for annexation before adopting the annexation ordinance as prescribed (KRS 100.209)." https://legislature.ky.gov/LRC/Publications/Informational%20Bulletins/ib145.pdf | ||||||||||||||||||||
21 | LA | No | Dillon's rule applies to charter munis establ. before 1974 | Y 31 of 272 municipalities are charter/home rule | Y 23 of 64 counties are charter/home rule | Y (for pre-1974 charter municipalities) | Powers of pre-1974 charter municipalities are apparently still interpreted under Dillon's Rule. Polk v. Edwards, 626 So.2d 1128 (La. 1993). Charters of post-1974 charter municipalities are liberally construed. | N | N | Y | In June 2016 the Louisiana Supreme Court blocked St. Tammany Parish's attempt to use zoning ordinaces to block a state drilling permit, citing preemption by state oil and gas regulations https://www.nola.com/news/crime_police/article_79ccc332-a9e1-5261-ab99-aa61ad82bc79.html | ||||||||||||||||||
22 | MA | Maybe | Some cities (e.g. Cambridge) are weighing a ban on natural gas but worried that their measures won't hold up in court because MA state govt regulates building codes and utilities. https://insideclimatenews.org/news/12122019/natural-gas-ban-cities-legal-cambridge-brookline-massachusetts-state-law-berkeley-california | Y 90 of 351 cities/towns are home rule charter municipalities and another 60 are governed under a special act charter, granted by the state legislature | Y 1 of 5 counties are charter/home rule | N | Home Rule Amendments of 1966. However, Dillon's Rule is used when construing powers granted to quasi-municipalities. Cohen v. Board of Water Com'rs, Fire Dist. No. 1, South Hadley, 411 Mass. 744, 585 N.E.2d 737 (1992) (construing powers granted to a board of water commissioners). | Y | Y | M | There haven't yet been any official challenges to MA cities (e.g. Brookline) banning natural gas infrastructure but the solicitor for the city of Cambridge said that if the bans were to be challenged in court they likely would be found to be preempted by state law | MA BIll H.4568 mandates requirements for utilities to source a specified portion of their electricity from renewable sources | https://malegislature.gov/Bills/189/House/H4568 https://www.northeastern.edu/climatereview/?p=294 | ||||||||||||||||
23 | MD | No | Maryland banned fracking state-wide in 2017 https://www.foodandwaterwatch.org/news/historic-maryland-fracking-ban-finally-real-whats-next | Y (but inexistent) | Y 9 of 23 counties are governed under a charter and an additional 6 have home rule powers | Y | Tidewater/Havre de Grace, Inc. v. Mayor and City Council of Havre de Grace, 98 Md. App.218, 632 A.2d 509 (1993). | N | N | Y | The Maryland Court of Appeals found state environmental law preempts local zoning authority with respect to solar energy generating stations. https://www.greenbuildinglawupdate.com/2019/07/articles/solar-panel/state-law-trumps-on-location-of-solar-panels/ | ||||||||||||||||||
24 | ME | Yes | Y 75 of 413 municipalities are charter/home rule cities | Y 3 of 16 counties are charter/home rule | Y | State v. Fin and Feather Club, 316 A.2d 351 (Me., 1974). | Y | Y | N | A federal court ruled that South Portland's "Clear Skies" ordinance prohibiting bulk loading of crude oil tankers does not voilate the U.S. Constitution https://apnews.com/0d85e880be504c60a592bb55d4d70dbb/Judge-rules-in-favor-of-Maine-city-in-pipeline-lawsuit The case is now before the Maine Supreme Judicial Court. https://bangordailynews.com/2020/01/22/news/maines-highest-court-is-the-next-stop-for-south-portlands-contested-clear-skies-policy/ https://www.pressherald.com/2020/09/17/south-portland-pipeline-company-square-off-before-high-court/ | In Maine,many oil and propane consumers would like to convert to natural gas, and competition for operating in unserved areas has intensified. A new law signed in 2012 authorizes the Finance Authority of Maine to issue bonds for the development of the state’s natural gas infrastructure. | http://www.kjonline.com/news/gas-pipeline-pitched-in-winslow_2012-12-10.html https://pubs.naruc.org/pub.cfm?id=B377212B-EFB0-EAB3-E524-88AB6D4332A6 | |||||||||||||||||
25 | MI | Yes | Y 323 of 533 municipalities are charter/home rule cities | Y 2 of 83 counties are charter/home rule | Y | Cornerstone Investments, Inc. v. Cannon Tp., 585 N.W.2d 41 (Mich.App., 1998). | Y | Y | N | A court found that section 123.1102 does not preempt the zoning restriction because “zoning ordinances of general application merely regulate the location of certain categories of businesses, activities, or dwellings” and do not enter into the substantive field of regulation governing a particular business, activity or dwelling. https://lawcenter.giffords.org/preemption-of-local-laws-in-michigan/ | |||||||||||||||||||
26 | MN | Yes | SAFE Policies should be fine in MN that don't explicitly contradict existing state policies | Y 107 of 854 munipalities are charter/home rule cities | Y 1 of 87 counties is charter/home rule | Y | Municipal corporations are created by state law. See, e.g., Minn.St. § 410.04. Legislative authority is conferred upon them by the constitution and the laws of the state and, “as to matters of municipal concern they have all the legislative power possessed by the Legislature of the state, save as such power is expressly or impliedly withheld.” Northern States Power Co. v. City of Oakdale, 588 N.W.2d 534 (Minn.App., 1999); citing Park v. City of Duluth, 134 Minn. 296, 298, 159 N.W. 627, 628 (1916). City of St. Paul v. Whidby, 295 Minn. 129, 203 N.W.2d 823 (Minn., 1972) | Y | Y | N | Local regulation will be preempted when: • the legislature has fully and completely covered the subject matter • the legislature has clearly indicated that the subject matter is solely of state concern, or • the subject matter itself is of such a nature that local regulation would have unreasonably adverse effects on the general populace. https://www.house.leg.state.mn.us/hrd/pubs/ss/ssprempll.pdf | ||||||||||||||||||
27 | MO | Maybe | Y Missouri was the first state to institute home rule 38 of 911 municipalities are charter/home rule cities and 6 operate under a state granted special legislative charter | Y 4 of 114 counties are charter/home rule | Y | The majority in State ex rel. St. Louis Housing Authority v. Gaertner, 695 S.W.2d 460 (Mo.,1985) applies Dillon's Rule. The dissenting opinion argues that Missouri Constitution Article VI, Section 19(a) repeals Dillon's Rule | Unknown | Unknown | M | Missouri’s 2015 preemption law was vetoed by Democratic Governor Jay Nixon, but overridden by the Republican legislature. The bill, HB 722, includes additional preemptions: Localities cannot “require employee benefits that exceed federal or state requirements." The bill also prohibits political subdivisions of the state from banning or imposing a fee for the use of paper or plastic bags” (Barr 2015). Interestingly, a clause included in HB 722 stated that local wage ordinances passed before August 28, 2015, the day HB 722 passed, would not be preempted. As HB 722 was being debated, St. Louis rushed to pass its ordinance and managed to beat the clock. In February 2017, the Missouri Supreme Court found that St. Louis had acted “within its charter authority” when it passed the ordinance, allowing the city to move forward with its plans to raise its minimum wage to $11 per hour by 2018 (Bott 2017). http://defendlocal.com/wp-content/uploads/2017/10/Rise-of-State-Preemption-Laws-in-Response-to-Local-Policy-Innovation.pdf | |||||||||||||||||||
28 | MS | Maybe | Y 20 of 277 municipalities are charter/home rule cities | Y (but inexistent) | Y | Hemphill Const. Company, Inc. v. City of Laurel, 760 So.2d 720 (Miss., 2000) | Y | Y | M | Code, §§ 17-1-1 et seq. empower local governing boards, including municipalities, to adopt and enforce zoning regulations. https://extension.msstate.edu/sites/default/files/publications/publications/P3094.pdf Mississippi passed a state law forbidding localities from regulating the sale or use of plastic bags https://www.governing.com/topics/transportation-infrastructure/gov-climate-change-states-cities-preemption.html | |||||||||||||||||||
29 | MT | No | Montana is one of four states with a constitutional provision creating the right to a clean environment | Y 32 of 97 municipalities are charter/home rule cities | Y 3 of 54 counties are charter/home rule | N | Not applied to cities, towns or counties. Article XI, Section 4 of the Montana Constitution repeals Dillon's Rule. Granite County v. Komberec, 245 Mont. 252, 800 P.2d 166 (1990) (rejecting an argument that Dillon's Rule should apply to counties, even though the state constitution's language referencing counties sounds suspiciously like Dillon's Rule). | N | N | Y | Montana law does not allow local governments to make resolutions or rules that prevent the complete use, development, or recovery of any mineral, forest or agricultural resource. However, local governments can impose reasonable conditions on application approvals; land use and zoning ordinances must allow effective utilization of mineral resources (Mont. Code Ann. § 76-2-209). oilandgasbmps.org/laws/montana_law.php https://www.oilandgasbmps.org/docs/setback_rules.pdf | ||||||||||||||||||
30 | NC | No | Y (but inexistent) | Y (but inexistent) | Y | Case law is confused, to say the least. However, the authors interpret North Carolina Statutes sections 153A-4and 160A-4 as dictating liberal construction of powers granted under Chapters 153A and 160A of the North Carolina Statutes. Other grants of authority are apparently still subject to Dillon's Rule. See, e.g., Carteret County v. United Contractors of Kinston, 120 N.C. App. 336, 462 S.E.2d 816 (1995) Homebuilders Ass'n of Charlotte, Inc. v. City of Charlotte, 336 N.C. 37, 442 S.E.2d 45 (1994). | N | N | Y | Senate Bill 119 prohibits towns, cities, and counties from adopting any regulations or ordinances on natural gas drilling https://www.fayobserver.com/article/20151004/News/310049894 NC has a super-preemption law re: gun control | |||||||||||||||||||
31 | ND | Yes | Y 130 of 357 municipalities are charter/home rule cities | Y 8 of 53 counties are charter/home rule | Y | City of Bismarck v. Fettig, 601 N.W.2d 247 (N.D., 1999) | Y | Y | N | North Dakota has allowed local fracking bans without instituting state-wide preemption http://defendlocal.com/wp-content/uploads/2017/10/Rise-of-State-Preemption-Laws-in-Response-to-Local-Policy-Innovation.pdf | |||||||||||||||||||
32 | NE | Maybe | Y 2 of 530 municipalities are charter/home rule cities | Y (but inexistent) | Y | Fitzke v. City of Hastings, 582 N.W.2d 301 (Neb., 1998). | Unknown | Unknown | M | In Nebraska, state law will preempt a local law in three instances: 1) when the state explicitly conveys its intention that a law preempts local laws on the same subject; 2) when the state’s intention to preempt local law is implied by a comprehensive scheme of legislation on a particular subject; also known as “field preemption” and 3) where the local law is inconsistent with state law https://lawcenter.giffords.org/preemption-of-local-laws-in-nebraska/ | In 2012, Nebraska passed legislation to facilitate the expansion of gas lines into new areas. The legislation streamlines the regulatory review process and allows utilities to spread the costs of line extensions to all of their ratepayers. | https://pubs.naruc.org/pub.cfm?id=B377212B-EFB0-EAB3-E524-88AB6D4332A6 https://nebraskalegislature.gov/FloorDocs/102/PDF/Final/LB1115.pdf | |||||||||||||||||
33 | NH | Maybe | Y 13 of 234 muncipalities are charter/home rule cities | Y (but inexistent) | Y | Simonsen v. Town of Derry, 765 A.2d 1033 (N.H., 2000) Municipalities have only powers that are expressly granted to them by legislature and such as are necessarily implied or incidental thereto | Y | Y | M | The NH state legislature has either partially or completely preempted local land use regulation include manufactured housing, agricultural uses of land, building on class VI and private roads, workforce housing, and small wind energy systems. | |||||||||||||||||||
34 | NJ | Yes | Y 129 of 566 municipalities operate under the optional municipal charter law statutes and 11 operate under a state granted special charter | Y 6 of 21 counties operate under the optional county charter law statutes | N | Municipalities possess not only the powers granted them in express terms but also those incidental to those powers expressly conferred so long as they are not prohibited by the Constitution or by law. N.J.S.A. Const. Art. 4, § 7, par. 11. Legislative Home Rule essentially overrules Dillon's Rule. Gross v. Ocean Tp., 445 A.2d 435 (N.J. Super. A.D., 1982). | Y | Y | N | NJ Municipal Land Use Law Purpose of the act. It is the intent and purpose of this act: a. To encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare; b. To secure safety from fire, flood, panic and other natural and man-made disasters; c. To provide adequate light, air and open space; http://www.ubnj.net/ubnj/Departments/Planning%20Board/NJ%20Municipal%20Land%20Use%20Law.pdf | |||||||||||||||||||
35 | NM | Yes | Y 11 of 103 municipalities are home rule charter cities and 1 operates under a territorial charter | Y 1 of 33 counties is subject to charter/home rule as a consolidated city-county | N | Under Article X, Section 6(D) of the New Mexico Constitution, "[a] municipality ... may exercise all legislative powers and perform all functions not expressly denied by general law or charter." This Court has held that "any New Mexico law that clearly intends to preempt a governmental area should be sufficient without necessarily stating that affected municipalities must comply and cannot operate to the contrary." American Civil Liberties Union of New Mexico v. City of Albuquerque, 128 N.M. 315, 992 P.2d | Y | Y | N | Under N.M. STAT. § 3-17-1, municipalities can pass ordinances "not inconsistent with the laws of New Mexico" to discharge powers and duties and to provide for safety, health, and prosperity of residents or order of the municipality. http://www.oilandgasbmps.org/laws/new_mexico_localgovt_law.php | |||||||||||||||||||
36 | NV | Maybe | Y 12 of 19 municipalities are charter/home rule cities | Y (but inexistent) | N | City of Reno v. Saibini, 429 P.2d 559 (Nev., 1967). | Unknown | Unknown | M | Nevada is 85% federal land, which may pose some potential roadblocks for state-wide legislation NV has a super-preemption law re: gun control | |||||||||||||||||||
37 | NY | Yes | Just completed a draft legal analysis with the PACE law school climate centre detailing pathways to SAFE policies in New York, along with sample ordinances that local governments can pass | Y 62 of 1550 municipalities are charter/home rule cities | Y 19 of 57 counties are subject to charter/home rule | Y | Village of Webster v. Town of Webster, 705 N.Y.S.2d 774 (N.Y.A.D. 4 Dept., 2000). N.Y. Const., Art. IX, § 3[c] expressly repudiates the prevailing rule (Dillon's rule) mandating strict judicial construction, but only for powers granted under Article IX of the N.Y. Const. Article IX includes a Bill of Rights for Local Governments. However, "[L]awmaking authority of a municipal corporation, which is a political subdivision of the State, can be exercised only to the extent it has been delegated by the State." Albany Area Builders Association v. Town of Guilderland, 74 N.Y.2d 372, 547 N.Y.S.2d 627, 546 N.E.2d 920 (1989) (Kaye, J.); see also, City of New York v. State of New York , 76 N.Y.2d 479, 561 N.Y.S.2d 154, 562 N.E.2d 118 (1990). | Y | Y | M | New York Environmental Conservation Law states that the state law "shall supersede all local laws or ordinances relating to the regulation of the oil, gas, and solution mining industries" but NY state is generally liberal in both listening to local demands and regulating oil and gas infrastructure. Gov. Cuomo banned fracking state-wide in 2014. https://heinonline.org/HOL/LandingPage?handle=hein.journals/nre27&div=54&id=&page= | New York Codes, Rules and Regulations 16 CRR-NY 230.2 state's utility obligation to provide gas service, including financing up to 100 feet of main installation: (d) Residential applicant—heating. If an applicant requests residential heating service, the corporation shall furnish, place and construct all mains, service lines, service connections and appurtenant facilities necessary to render the service requested. The cost and expense which the corporation must bear shall include: (1) the material and installation costs relating to: (i) up to 100 feet of main and appurtenant facilities; and (ii) up to 100 feet of service line measured from the centerline of the public right-of-way (or the main if it is closer to the customer and development will be limited to one side of the right-of-way for at least 10 years), service connections and appurtenant facilities; but not less than the length of service line necessary to reach the edge of the public right-of-way; and (2) the amounts legally imposed by governmental authorities for obtaining required work permits and for repairing or replacing disturbed pavement. (e) Nonresidential applicant. | https://govt.westlaw.com/nycrr/Document/I505bd382cd1711dda432a117e6e0f345?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default) | ||||||||||||||||
38 | OH | No | Y 234 of 936 municipalities are charter/home rule cities | Y 2 of 88 counties are subject to charter/home rule | N | Northern Ohio Patrolmen's Benev. Assn v. City of Parma, 61 Ohio St.2d 375, 402 N.E.2d 519, 15 O.O.3d 450 (1980). | N | N | Y | The state of Ohio has the exclusive authority to regulate oil and gas drilling https://www.americanbar.org/groups/litigation/publications/litigation-news/top-stories/2013/oil-and-gas-regulation-sole-domain-of-state/ | |||||||||||||||||||
39 | OK | No | Y 86 of 594 municipalities are charter/home rule cities | Y (but inexistent) | Y | Morland Development Co., Inc. v. City of Tulsa, 596 P.2d 1255, 1979 OK 96 (1979) | N | N | Y | Senate Bill 809 prevents towns, cities, and counties from banning fracking. https://stateimpact.npr.org/oklahoma/2015/06/01/gov-fallin-signs-bill-to-prevent-towns-cities-and-counties-from-banning-fracking/ Oklahoma has also adopted a bill stating that NOAA's resources should be dedicated to improvements in weather forecasting, not studying climate change. The legislature proposed a resolution to prohibit certain regulatory actions relating to greenhouse gases and air quality requirements by the EPA and considered a bill to prohibit municipalities and counties from implementing rules that do not conform to state statutes--these last two efforts failed. https://www.governing.com/topics/transportation-infrastructure/gov-climate-change-states-cities-preemption.html | |||||||||||||||||||
40 | OR | Maybe | Y 111 of 241 municipalities are charter/home rule cities | Y 9 of 36 counties are subject to charter/home rule | N | Rorick v. Dalles City, 12 P.2d 762 (Or., 1932) When power is given to municipality by statute, everything necessary to make it effectual is given by implication. | N | N | M | The prohibition against genetically engineered crops in Oregon’s Josephine County has been struck down by a judge who ruled the ordinance is pre-empted by state law https://www.capitalpress.com/state/oregon/judge-strikes-down-gmo-ban-in-oregon-s-josephine-county/article_5a3d1cda-51e9-5dfd-89cf-71e3b80f9dbe.html | Oregon is 53% federal land, which may pose some potential roadblocks for state-wide legislation | ||||||||||||||||||
41 | PA | Yes | Pennsylvania is one of four states with a constitutional provision creating the right to a clean environment | Y 65 of 2561 municipalities are charter/home rule cities | Y 7 of 67 counties are subject to charter/home rule | Y | Naylor v. Township of Hellam, 773 A.2d 770 (Pa.,2001); McHenry v. Clark , 87 Pa. D. & C. 348, 1954 WL 4408 (Pa.Com.Pl. 1954) | Y | Y | N | PA Commonwealth Court ruled in favor of the Allegheny Township in 2019 in a case opposing the construction of a fracking well pad PA has a super-preemption law re: gun control | ||||||||||||||||||
42 | RI | Maybe | Y (but inexistent) | Rhode Island does not have county governments | Y | Dancliff Realty Corp. v. Miller, 225 A.2d 52 (R.I., 1966) Municipal corporation does not have power by implication which would be contrary to express grant | Y | Y | M | State laws with statewide applicability will preempt municipal ordinances addressing the same subject if “the legislature intended that they thoroughly occupy the field.” Certain Rhode Island statutes authorizing state agencies to adopt environmental regulations or issue environmental approvals provide for concurrent jurisdiction with municipal authorities, either expressly or by inference. Other environmental statutes and regulations expressly state that the applicable state agency shall have exclusive authority to regulate a certain subject or jurisdictional area. https://www.hinckleyallen.com/wp-content/uploads/2017/06/Chapter-9-and-10_A-Practical-Guide-to-Land-Use-Law-In-RI.pdf | |||||||||||||||||||
43 | SC | Yes | Y (but inexistent) | Y (but inexistent) https://my.lwv.org/sites/default/files/home_rule_2011.pdf | N | Article VIII, section 17 of the South Carolina Constitution provides that "all laws concerning local
government shall be liberally construed in their favor. Powers, duties, and responsibilities granted local government subdivisions by this Constitution and by law shall include those fairly implied and not prohibited by this Constitution." The provision seeks to abrogate restrictions on the exercise of local autonomy such as Dillon's Rule and effectively abolished Dillon's Rule. D.W. Flowe & Sons, Inc. v. Christopher Constr. Co., 326 S.C. 17, 482 S.E.2d 558 (1997). | Y | Y | M | Where an ordinance is not preempted by State law, the ordinance is valid if there is no conflict with State law. In order for there to be a conflict between a State law and a municipal ordinance, both must contain either express or implied conditions that are inconsistent and irreconcilable with each other. If either is silent where the other speaks, there is no conflict. | |||||||||||||||||||
44 | SD | Yes | Y 10 of 310 municipalities are charter/home rule cities | Y 2 of 66 counties are subject to charter/home rule | Y (but doesn't mention Dillon's rule explicitly by name) | Pennington County v. State, ex rel.Unified Judicial System, 641 N.W.2d 127 (S.D., 2002).
"[A municipality] has only such powers as are expressly conferred upon it by statute and such as may be reasonably implied from those expressly granted." | Y | Y | M | South Dakota delegates land use planning to municipal and county planning commissions. 11-2 S.D. § 1 et seq., County Planning and Zoning; 11-4 S.D. § 1 et seq., Municipal Planning and Zoning; 11-6 S.D. § 1 et seq., Comprehensive City Planning. However, the South Dakota Public Utilities Commission (SDPUC) may determine that a permit to construct a transmission facility within a designated area supersedes or preempts any county or municipal land use, zoning, or building rules, regulations, or ordinances upon finding that such rules, or regulation, or ordinance, as applied to the proposed route, are unreasonably restrictive. 49-41B S.D. § 28. https://openei.org/wiki/RAPID/Roadmap/1-SD-a | |||||||||||||||||||
45 | TN | No | Dillon's rule applies only to non-home rule munis | Y 229 of 345 municipalities are charter/home rule cities | Y 2 of 92 counties are subject to charter/home rule | Y (only non-home rule municipalities) | Southern Contractors, Inc. v. Loudon County Board of Education, 58 S.W.3d 706 (Tenn. 2001). "As in many jurisdictions throughout the nation, Dillon's Rule has been applied in this state for more than a century to determine the scope of local government authority." (Ibid, at page 710). "…the Rule has been consistently applied to all forms of local government, including those of cities, counties, and special districts." (Ibid, at page 711). However, Dillon's Rule not applied to home rule municipalities (Southern Contractors). See Tenn. Const. Article XI, Section 9. | N | N | Y | Republican legislators have moved to preempt local government: https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2012/03/19/republican-legislatures-move-to-preempt-local-government TN has a super-preemption law re: gun control | ||||||||||||||||||
46 | TX | No | Cities may adopt home rule once their population exceeds 5,000 and the voters adopt a city charter (the provisions of which cannot be inconsistent with either the Texas Constitution or general law); if the population subsequently falls below 5,000 the charter remains in force and may be amended.[5] Otherwise, cities with populations of 5,000 or less are governed by general law only.[6] School districts are generally governed by general law; a district may adopt a home rule charter,[7] but no district has chosen to do so.[8] Counties and "special districts" (other special-purpose governmental entities besides cities and school districts) are governed solely by general law and prohibited from adopting home rule. | Y 352 of 1214 municipalities are charter/home rule cities | Y (but inexistent) | Y | Texas River Barges v. City of San Antonio, 21 S.W.3d 347 (Tex. App. San Antonio, 2000). | N | N | Y | House Bill 40 prevents municipalities from taking action that interferes with the business/profits of fossil fuel companies, esp. on drilling for gas/oil HB 3557 Criminalized pipeline protest SB 4 is a "super-preemption" law banning sanctuary cities | ||||||||||||||||||
47 | UT | Yes | Y 1 of 245 municipalities are charter/home rule cities | Y (but inexistent) | N | The Utah Supreme Court emphatically abandoned Dillon's Rule in State of Utah v. Hutchinson, 624 P.2d 1116 (Utah, 1980). | Y | Y | M | Utah grants local governments the authority to supplement the state and federal laws with its own regulations for oil and gas development. Utah authorizes counties to enact any ordinance necessary to carry forth its duties so long as they are not repugnant to state law. UCA § 17-53-223(1)(a) (2010). Several counties have adopted extensive requirements including permitting and BMPs. http://www.oilandgasbmps.org/laws/utah_localgovt_law.html | Utah is 65% federal land, which may pose some potential roadblocks for state-wide legislation | Utah bill H.B. 411 (passed in 2019) has allowed 20 Utah communities including Salt Lake City to demand 100% renewable energy from their utilities by 2030 | https://www.sierraclub.org/press-releases/2019/12/2019-wrap-20-utah-communities-committed-100-renewable-energy https://le.utah.gov/~2019/bills/static/HB0411.html | ||||||||||||||||
48 | VA | Yes | Y All 229 of 229 municipalities are charter/home rule cities | Y 3 of 95 counties are subject to charter/home rule | Y | Winchester v. Redmond, 93 Va. 711 (1896), Virginia is a stalwart Dillon's Rule State | Y | Y | N | VA has allowed local fracking bans without preempting them under state authority http://defendlocal.com/wp-content/uploads/2017/10/Rise-of-State-Preemption-Laws-in-Response-to-Local-Policy-Innovation.pdf The state legislature is exploring a fracking ban. | Virginia has passed legislation that will facilitate the recovery of costs for eligible gas-line extensions that promote economic development Virginia also passed the Virginia Clean Economy Act in March 2020 that requires the state’s biggest utilities to deliver electricity from 100 percent renewable sources by 2045, sets a timeline for closing old fossil-fuel plants and mandates gains in energy efficiency. | http://leg1.state.va.us/cgi-bin/legp504.exe?121+sum+HB559. https://pubs.naruc.org/pub.cfm?id=B377212B-EFB0-EAB3-E524-88AB6D4332A6 https://www.washingtonpost.com/local/virginia-politics/virginia-dominion-energy-bill/2020/03/06/4524cd20-5fc1-11ea-b29b-9db42f7803a7_story.html | |||||||||||||||||
49 | VT | Yes | Vermont is one of only two statest that the NLC identified no preemption laws in https://www.nlc.org/sites/default/files/2017-03/NLC-SML%20Preemption%20Report%202017-pages.pdf | Y 68 of 282 municipalities are charter/home rule cities | Y (but inexistent) | Y | Vermont has "consistently adhered to the so-called Dillon's rule that a municipality has only those powers and functions specifically authorized by the legislature, and such additional functions as may be incident, subordinate or necessary to the exercise thereof." Petition of Ball Mountain Dam Hydroelectric Project, 154 Vt. 189, 576 A.2d 124, 119 P.U.R.4th 575 (1990). Brennan Woods Ltd. Partnership v. Town of Williston, 2001 WL 1173475 (Vt., 2001) | Y | Y | N | State statutes that authorize local land use regulation grant broad authority to municipalities, although there are several restrictions and required provisions intended to protect landowners, promote housing and renewable energy, among other purposes. https://vnrc.org/community-planning-toolbox/land-use-law/ | Vermont has allowed its only gas utility (Vermont Gas Systems) to use ratepayer monies to start planning for line extensions that could save households and businesses large sums of money in the future. The Vermont Public Service Board reasoned that the potential benefits from expanding gas service in the state outweigh any concern over ratepayers funding development and planning costs in the near term. The Board identified these benefits as the reduction in greenhouse gases and increased economic development | https://pubs.naruc.org/pub.cfm?id=B377212B-EFB0-EAB3-E524-88AB6D4332A6 | ||||||||||||||||
50 | WA | Yes | Seattle signed the C40 Fossil-Fuel-Free Streets Declaration: Electric buses by 2025, ICE vehicles banned by 2030 https://theclimatecenter.org/wp-content/uploads/2018/10/Survey-on-Global-Activities-to-Phase-Out-ICE-Vehicles-FINAL-Oct-3-2018.pdf | Y 11 of 281 municipalities are charter/home rule cities | Y 6 of 39 counties are subject to charter/home rule | Y | Washington State Courts use Dillon's Rule to construe Home Rule grants of authority. Tacoma v. Taxpayers of the City of Tacoma, 108 Wash. 2d 679, 743 P.2d 793 (1987). Sundquist Homes, Inc. v. Snohomish County Public Utility Dist. No. 1, 997 P.2d 915 (Wash., 2000) Municipal authorities cannot exercise powers except those expressly granted, or those necessarily implied from granted powers. | Y | Y | N | |||||||||||||||||||
51 | WI | No | Y 1 of 595 municipalities (Milwaukee) is governed under a private charter | Y (but inexistent) | Y | Willow Creek Ranch, L.L.C. v. Town of Shelby, 611 N.W.2d 693 (Wis.,2000). Municipal bodies have only such powers as are expressly conferred upon them by the legislature or are necessarily implied from the powers conferred. However, Wisc. St.. section 62.04 provides that powers granted under the general charter law are liberally construed. | Y | Y | Y | A new law signed by Governor Walker makes major changes to how private property can be regulated in Wisconsin including changes to conditional use permits and preemption of clauses that merge substandard lots. https://www.staffordlaw.com/blog/municipal-law/2017-wisconsin-act-67-makes-major-changes-to-wisconsin-land-use-law | |||||||||||||||||||
52 | WV | No | Dillon's Rule was effectively abolished in the 1969 Municipal Code, §7, Article 1. *The state has conducted a home rule pilot program which is due to stop by the middle of 2019. | Y 108 of 232 municipalities are charter/home rule cities | Y (but inexistent) | N | Calabrese v. City of Charleston, 515 S.E.2d 814 (W.Va.,1999). The West Virginia Supreme Court has continued to apply Dillon's Rule despite language in West Virginia Code Section 8-1-7 that directs liberal construction of at least certain grants of authority. | N | N | Y | In June 2016, a federal judge struck down Fayette County's fracking waste disposal ban on the grounds that it was preempted by state and federal law https://www.fayettetribune.com/news/judge-rules-fayette-fracking-ban-invalid/article_93b96d58-335e-11e6-8dc4-5b9d344e6415.html | ||||||||||||||||||
53 | WY | Maybe | 7 of 99 municipalities are charter/home rule cities | N | Y | Coulter v. City of Rawlins, 662 P.2d 888 (Wyo.,1983) A municipality is not necessarily limited to those powers expressly conferred, but may also exercise powers fairly and necessarily implied from grant contained in statute or constitutional provision. (Citing McQuillen). | Y | N | M | In Wyoming, cities and towns have the power to regulate oil and gas through the zoning power granted by state statute (WSA § 15-1-601 (2010). Under the statute, they may divide the city or town into districts and within those districts may regulate and restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land (WSA § 15-1-601(a)(i)(E) (2010)). This power is, however, limited for counties as WSA §18-5-201 (2010) expressly prohibits county zoning resolutions or plans from preventing use or occupancy of lands necessary for mineral extraction. Without a similar prohibition, cities have started to regulate oil and gas development. WY has a super-preemption law re: gun control | |||||||||||||||||||
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