Federal Preemption Railroads City

By Shafroth, Frank | Nation's Cities Weekly, September 22, 1997 | Go to article overview

Federal Preemption Railroads City


Shafroth, Frank, Nation's Cities Weekly


While the federal government continues to A about the devolution of power and authority back to cities, the reality is that the big dog bites first and bites hard.

So learned the city leaders of the small city of Austell, Georgia, when a U.S. District Court added result to injury by denying the city's motion to even argue in court against federal preemption of its land use and zoning authority

In still another federal preemption blow against traditional and historic local authority, a federal court ruled in favor of a railroad against the small, residential Georgia city. The court said that Congress preempted municipal land use and zoning authority as it applies to railroads as part of legislation enacted in 1995 to eliminate the Interstate Commerce Commission. The action came after the city refused the railroad's request to rezone property and denied the railroad a land use permit for construction, development, and operation of an intermodal facility The far-reaching interpretation by the court has caused widespread anger in the community, but so far has drawn little reaction from the Congress.

Although Congress made clear in that 1995 law that it specifically intended to preempt traditional state and local tax authority as it related to railroad Property and state and local authority to regulate tow trucks, there was never any debate in Congress about its intent to preempt traditional municipal land use and zoning authority. As the volume of rail freight traffic has expanded, the issue of safety and local authority to protect citizens has increased in dozens of smaller cities across the country.

Nevertheless, the federal court last month interpreted a specific preemption clause in the law to apply broadly to any regulation of rail transportation. Noting that the federal law grants exclusive jurisdiction to the Surface Transportation Board over "construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if located entirely in one state," the court ruled that the language of the Act expresses Congress' unambiguous and dear intent to preempt the City of Austell's authority to regulate and govern the construction, development, and operation of the railroad's intermodal facility via the instant zoning ordinance and land use permitting requirement. …

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