Reference Library

Preemption and Governmental Immunity

• Preemption of Municipal Regulation: 'Who's in Charge Here, Anyway?'
  New Hampshire Town and City, June 2011
  Municipal regulations and ordinances in New Hampshire must pass two familiar tests to be enforceable. First, they must be authorized by a state law. Second, they have to be constitutional, meaning they don't violate either the United States Constitution or our New Hampshire Constitution. These two requirements get a lot of attention, but there is a third test. Even when it appears that one state statute has generally authorized municipal regulation of a subject, another state statute or federal law may "preempt" municipal regulation. The idea that the state or federal government prohibits towns and cities from regulating certain areas in this fashion comes as a surprise to many local officials.
• RSA 674:54
• See "Because Uncle Sam and Aunt Concord Say So …"
  Presenters: Attorney Daniel D. Crean and Attorney Kerrie L. Diers
  NHMA law lecture #2, Fall 1997
• See "Preemption of Local Regulation: Ejected from Your Own Game!"
  Presenters: Attorney Matthew R. Serge, Upton & Hatfield, LLP
  Attorney C. Christine Fillmore, New Hampshire Local Government Center
  NHMA law lecture #2, Fall 2011
  Even when it appears that one state statute has authorized municipal regulation of a subject, another state statute or federal law may preempt municipal regulation. This lecture explores the developing reach of state and federal preemption in a variety of land use areas such as hazardous waste, landfills, wind power, transmission lines and environmental regulation.
• Do local governments have to follow their own rules?
• Do public buildings need a building permit?
• TOWN OF CARROLL v. WILLIAM RINES Argued: June 13, 2012 Opinion Issued: November 9, 2012
  The local excavation regulation was so broadly worded that it did not provide for exceptions for permit-exempt excavations under the statute and thus was found to be prempted by RSA 155-E.

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