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MEDIUM RARE by Jim Rarey
March 18, 2000

STATE AND FEDERAL PREEMPTION OF LOCAL AUTHORITY

There is a disturbing trend across the country in which the federal government and state governments are taking away powers from local communities that were once thought to belong at the lowest level of government.

In Michigan, state law has recently taken control of agricultural zoning and the distribution of fines resulting from local enforcement of weight and load restrictions on trucks. The legislature is currently considering legislation that would deny local powers except those specifically named in each piece of new legislation.

Together, state and federal agencies can place waste disposal facilities against the opposition of local residents and city governments. Garbage and hazardous wastes flood in from Canada (and from Mexico in southwest U.S.) permitted by federal laws resulting from the North American Free Trade Agreement (NAFTA).

Just last Thursday, the House of Representatives in Washington, D.C. passed a bill that could take many zoning appeals directly to federal courts, completely bypassing city councils and state courts.

On the other hand, abuses by some cities have provided excuses for taking powers away from all cities. In some locations, enforcement of truck restrictions is looked on as a source of revenue, not just a safety measure. One of the extreme examples cited was a $500 fine for an "unsecured load" consisting of an empty windshield washer fluid bottle.

Another source of abuse is the "special use approval" built into many zoning ordinances. This provision is so loosely worded that it gives city councils room to deny almost any project (or developer) they don’t like. Planning commissioners and council members become instant architects, traffic and landscaping experts and defenders of the status quo.

Without question, some developers are jacked around by city governments until the project becomes too expensive or permission is ultimately denied. Proponents of the federal preemption of zoning appeals cited cases that took up to ten years to be resolved in state courts. The Romulus injection well controversy may well exceed that time line.

To counter the movement toward preemption of their local powers, cities need to establish simplified and consistent guidelines for developers that do not depend on the whims of local officials.

Permission is granted to reproduce this article in its entirety.

The author is a free lance writer based in Romulus, Michigan. He is a former newspaper editor and investigative reporter, a retired customs administrator and accountant, and a student of history and the U.S. Constitution.

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