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Legal Q & A

Matthew Weng
Matthew Weng
League Staff Attorney

Preemption Law and the Difference Between an Initiative and a Referendum

Q As local officials, we often run into situations where we attempt what we believe to be a novel approach to a unique local situation, only to later discover that our ordinance was preempted by state action. Can you give me a general overview of preemption law and a rundown of when state statutes preempt local ordinances?

A The general guidelines for when an issue is preempted were set out in a 1976 Supreme Court case, Overlook Terrace Management Corp. v. Rent Control Board of Town of West New York, 71 N.J. 451.

The pertinent questions to ask, according to the Supreme Court, are:

  1. Does the ordinance conflict with state law, either because of conflicting policies or operational effect (that is, does the ordinance forbid what the Legislature has permitted or does the ordinance permit what the Legislature has forbidden?)
  2. Was the state law intended, expressly or impliedly, to be exclusive in the field?
  3. Does the subject matter reflect a need for uniformity?
  4. Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation?
  5. Does the ordinance stand ‘as an obstacle to the accomplishment and execution of the full purposes and objectives' of the Legislature?

To put it another way, “legislative intent to preempt a field will be found either where the state scheme is so pervasive or comprehensive that it effectively precludes the coexistence of municipal regulation or where the local regulation conflicts with the state statutes or stands as an obstacle to a state policy expressed in enactments of the Legislature.”

However, “it is not enough that the Legislature has legislated upon the subject, for the question is whether the Legislature intended its action to preclude the exercise of the delegated police power.” Instead, the “ultimate question is whether, upon a survey of all the interests involved in the subject, it can be said with confidence that the Legislature intended to immobilize the municipalities from dealing with local aspects otherwise within their power to act.” Summer v. Teaneck Twp. 53 N.J. 548, 554-555, (1969).


Q As a newly elected official I often confused by the difference between an initiative and a referendum, and when each should be used. Can you clear that up for me?

A In his guide to Municipal Law, Michael Pane concisely defines the difference between the two: “Initiative is the power to place local legislative proposals on the ballot for adoption by the voters. When adopted by the voters these proposals have the same effect in law as municipal ordinances enacted by the municipal governing body.

Referendum is the power to place enacted ordinances on the ballot for ratification by the voters.”

It is important to remember that only citizens in those municipalities that have adopted forms of government under either the Faulkner Act or the Walsh Act have the ability to use binding initiatives or referenda. In all other municipalities, most referenda are non-binding; they are essentially a way to take the pulse of the electorate on an issue. (Under certain circumstances all municipalities, Faulkner/Walsh and charter, have the ability to use referendum procedures for limited purposes, such as pay raises for elected officials.)

In Faulkner/Walsh Act towns, there are two ways an ordinance will come before the voters to be approved or disapproved (referendum). The council can do this themselves, after duly passing an ordinance, or a petition can be filed by a member of the public to challenge an ordinance. Almost any ordinance can be initiated.

There are exceptions, however. Statutes and case law have made some types of ordinances inapplicable to either process. For example, neither the budget nor land use procedures may be subject to initiative.

This column is for informational purposes only, and is not intended as legal advice.


First published in New Jersey Municipalities, Volume 90, Number 1, January 2013

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