Barlow: Preemption hinders local municipalities in Pennsylvania
The Borough of State College is a home rule municipality, but Pennsylvania is a Dillon’s Rule state. That means our local governments possess only those powers specifically granted to them by state law. The Commonwealth government can preempt local government from passing designated types of ordinances. Sometimes preemptions, particularly those that advance well-being and equity, make sense, other times they are simply an imposition of the values of the state legislature over the values of local citizens and their elected local government.
Pennsylvania allows municipalities to levy only a few kinds of taxes — property taxes, earned income taxes, real estate transaction taxes and certain fees. Alcohol taxes and sales taxes are not allowed. Since much of our police budget is used for alcohol-related incidents and much of that is for visitors to State College during special events, an alcohol tax makes perfect sense. Several Borough elected officials including myself and our staff have spoken to state legislators about this issue. Legislators of both major political parties have been sympathetic, but some have also pointed out that there are strong barriers in the legislature against more local taxes of any kind.
State College Borough has been hindered by other preemptions as well. The Borough Council recently passed a “Tenants Bill of Rights.” I strongly favored this, but it was weaker than it could have been because, except for code violations and violations of anti-discrimination ordinances, the Borough is preempted from regulating landlord/tenant relations.
A few years ago, the Borough was forced to repeal an ordinance on open carry of firearms in public areas because of Act 10, a preemption of any regulation of firearms. That law had an unfortunate provision that allowed anyone to sue a Pennsylvania municipality over a firearms law even if it were not enforced on them and even if they could not show any legal injury. Fortunately, the state Supreme Court struck down that part of Act 10. In 2019, the legislature prohibited municipalities from passing ordinances banning or restricting the use of plastic bags after several municipalities passed such ordinances. That prohibition has since expired.
Whereas Colorado municipalities are allowed to have municipal broadband, preemptions in Pennsylvania law make that a practical impossibility. Fortunately, private companies are now offering fiber optic connections in Centre County, but that was years later than other similar communities.
Pennsylvania used to be one of the worst states for preemption, but, at a National League of Cities meeting last year, I saw that other states are racing ahead. In Florida, any homeowner or business can challenge any local ordinance on the grounds that it is preempted by the state constitution or state law absent ordinary legal standing rules. A new law in Texas bars cities and counties from creating ordinances that go farther than does state law in areas including labor, natural resources and finance. That includes local ordinances requiring water breaks for construction workers. Laws similar to Pennsylvania’s Act 10, prohibiting local regulation of firearms, have been enacted by many states and some go much farther. This is part of a recent trend that began accelerating around 2010 of mostly conservative state legislatures imposing their values on progressive local governments.
State legislatures in Pennsylvania and elsewhere need to reverse this irresponsible trend of preemption and partner with local governments instead of trying to replace the will of our citizens with their own preferences.
Jesse Barlow is the State College Borough Council president.
