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Wednesday, January 7, 2015

Troubling Preemption Case Suggests Life-Safety Codes Inapplicable to State-Licensed Uses

Affordable Recovery Housing (“ARH”) is faith-based, Christian organization that provides housing and recovery services to adult men with alcohol addiction.  ARH rents five buildings to run its services and wanted to house recovering alcoholics in two of these buildings.  On May 24, 2012, the City’s fire chief ordered ARH to vacate the premises, in part because the buildings lacked sprinkler systems in violation of the 2012 National Fire Protection Association’s Life Safety Code, which the City had adopted.  ARH moved its residents off-premises, but applied for and obtained a state license to operate a Recovery Home. Under a state law (the Alcoholism and Other Drug Abuse and Dependency Act), the Department of Human Services, a state agency, provides licensure requirements for recovery home services.

ARH filed suit against the City of Blue Island, arguing that that because DHS enacted a comprehensive regulatory scheme regarding Recovery Homes, the City was preempted from enforcing its local ordinance requiring sprinkler systems.  The District Court agreed, holding that the DHS regulations that allow recovery homes preempted the City’s Life Safety Code and ordered the City to cease enforcing its sprinkler requirements against ARH. Affordable Recovery Housing v.City of Blue Island, 2014 WL 6461596 (ND IL 11/17/2014)

This case is concerning as it appears to expand the preemption doctrine to restrict local powers well beyond the purpose of this doctrine.  The court based its holding on two previous preemption cases, one involving local noise regulations and the other day care zoning restrictions.  While there is some reason to the noise regulation preemption case (the state has comprehensive noise regulations in place and the case involved enforcement of local noise ordinances that were inconsistent with state regulations), neither the day care case nor this particular case involve inconsistent regulations.  Blue Island did not establish a local licensing requirement for recovery home services that were inconsistent with the state's licensing scheme.  Instead, Blue Island was simply enforcing its generally applicable life-safety codes.  These life-safety regulations apply to all types of uses (not simply home recovery services).  Many of these uses may be licensed or regulated by the state.  Does this case mean that any time a use or business receives any type of state license or permit, then the local government has no building or zoning authority over that business?  May a state-licensed business refuse to comply with building code requirements?  Or refuse to apply for zoning relief, and argue that once the state has licensed the business, it must be allowed to operate and any local requirements are simply not applicable.  That seems unreasonable, and certainly not what the preemption doctrine is intended to address.  

Post Authored by Julie Tappendorf


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