Attorney General: Honorable Donald E. Williams, Jr., Senate President Pro Tempore, Honorable Martin M. Looney, Senate Majority Leader, Formal Opinion 2006-009, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

April 17, 2006

The Honorable Donald E. Williams, Jr.
Senate President Pro Tempore
The Honorable Martin M. Looney
Senate Majority Leader
Legislative Office Building
300 Capitol Avenue
Hartford, CT 06106

Dear Senators Williams and Looney:

 

You have asked this Office whether Section 32-664(b) of the Connecticut General Statutes preempts the City of Hartford’s Living Wage Ordinance, Ord. No. 17-99, Art. XII, Sec. 2-761-744, as that ordinance may apply to the operations of the Marriott Hartford Downtown Hotel (the “Hotel”).  For the reasons that follow, I interpret Section 32-664(b) as applying solely to the construction and development phase of the downtown Hotel and not to the subsequent operations of the Hotel as a private enterprise.  As a result, I conclude that the preemptory language contained in Section 32-664(b) does not preclude application of Hartford’s Living Wage Ordinance to the Hotel’s ongoing, post-construction operations.1

     

Hartford’s Living Wage Ordinance requires companies that receive city property tax benefits or grants to pay their employees a “living wage,” as that term is defined in the ordinance.  Like most local ordinances, the Living Wage Ordinance was adopted by the City of Hartford pursuant to its general police powers.  As the Connecticut Supreme Court has repeatedly recognized, “[t]here is no doubt that [a] town has a right to regulate a business, pursuant to its police power, in the interest of protecting public safety or the welfare of its inhabitants. . . .”  Modern Cigarette, Inc. v. Town of Orange, 256 Conn. 105, 118 (2001) (quoting Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 22-23 (1987)). 

 

There may be times when municipal efforts to regulate a business are  preempted by state law.  “[I]n determining whether a local ordinance is preempted by a state statue, [courts] must consider whether the legislature has demonstrated an intent to occupy the entire field of regulation on the matter or whether the local ordinance irreconcilably conflicts with the statute.”  Modern Cigarette, Inc., 256 Conn. at 119. 

 

If application of Hartford’s Living Wage Ordinance to the operations of the Hotel were to interfere with the State’s intent to occupy this field of regulation or if that ordinance were to irreconcilably conflict with a state statute, it would be preempted and prohibited by state law.  I conclude that Section 32-664(b) presents no such barrier to application of the City of Hartford’s Living Wage Ordinance to the ongoing, privately conducted operations of the Hotel. 

 

Section 32-664 was originally approved, as part of Public Act 99-241, in order to facilitate a streamlined, orderly and uniform process for the oversight, development and construction phases of certain facilities comprising the Adriaen’s Landing project.  In particular, subsection (b) of that statute sets forth the particular state officials to whom applications shall be made for licenses, permits, approvals and administrative actions required or permitted to be issued in connection with certain aspects of the development and construction of the project.  It also specifically provides that no ordinance, law or regulation adopted by, or authority granted to, any municipality or any other political subdivision of the state shall apply to the “overall project.” 

 

Thus, 32-664(b) provides that:

 

Each license, permit and approval required or permitted to be issued and each administrative action required or permitted to be taken pursuant to the general statutes in connection with the overall project shall be issued or taken upon application to the particular commissioner or commissioners having the jurisdiction over such license, permit, approval or other administrative action or such other state official as such commissioner shall designate.  No agency, commission, council, committee, panel or other body whatsoever other than such commissioner shall have jurisdiction over or cognizance of any licenses, permits, approvals or administrative actions concerning the overall project.  No notice of any tentative determination or any final determination regarding any such license, permit, approval or administrative action and no notice of any such license, permit, approval or administrative action shall be required except as expressly provided in this section.  No ordinance, law or regulation adopted by, or authority granted to, any municipality or any other political subdivision of the state shall apply to the overall project, except that the stadium facility and the stadium facility project shall comply with the provisions of any local noise ordinance that embraces the ambient noise standard, as provided in section 22a-69, except that such local noise ordinance shall not apply to The University of Connecticut sporting events.  Any enforcement action shall be based on objective scientific measurements.

 

Conn. Gen. Stat. § 32-664(b) (Emphasis added).

 

Section 32-651(22) of the Connecticut General Statutes, in turn, defines the term “overall project” as follows:

 

"Overall project" means the convention center project, the stadium facility project and the parking project, or one or more of the foregoing as more particularly described in the master development plan, including all related planning, feasibility, environmental testing and assessment, permitting, engineering, technical and other necessary development activities, including site acquisition, site preparation and infrastructure improvements.  As used in sections 32-664, 32-665 and 32-668,  and subdivision (1) of section 12-412, subsection (a) of section 12-498 and subdivision (1) of section 22a-134, and section 32-617a, "overall project" also includes the development, design, construction, finishing, furnishing and equipping of the on-site related private development.

 

Conn. Gen. Stat. § 32-651(22) (Emphasis added).

 

The development and construction phases of the Hotel appear to fall within the broad definition of “overall project” set forth in Section 32-651(22) of the General Statutes.  In particular, the Hotel, which itself is defined as the “Convention center hotel” in Section 32-600(5) of the General Statutes,2 appears to be part of the “overall project” that “includes the development, design, construction, finishing, furnishing, and equipping of the on-site related private development.”  Conn. Gen. Stat. § 32-651(22).  By defining the “overall project” as it did, the legislature appears to have intended that the design, development and construction phase of the Hotel, which was part of the “on-site related private development” of the Adriaen’s Landing project, would be part of the “overall project” for purposes of Section 32-664 of the General Statutes.

 

As set forth supra, Section 32-664, entitled “Jurisdiction over and application for licenses, permits, approvals and administrative actions,” creates an exclusive state jurisdictional scheme for the construction and development phases of the “overall project.”  In addition to vesting in the respective state commissioners authority over the issuance of licenses and permits required or permitted to be issued in connection with the construction of the “overall project,” Section 32-664(b) also expressly provides that “[n]o ordinance, law or regulation adopted by, or authority granted to, any municipality or any other subdivision of the state shall apply to the overall project. . . .”  Conn. Gen. Stat. § 32-664(b).

 

This preemptory language does not apply to the subsequent, post-construction operations of the facilities that comprise the Adriaen’s Landing project.  To the contrary, Section 32-664(b), by its terms, applies only to the “overall project.”  The “overall project,” in turn, is defined in terms that make  clear that the legislature meant only to preempt such local ordinances that relate to the development, design and construction phases of the various facilities that comprise the overall project -- not the post-construction operations of those facilities.

 

Indeed, the specific “projects” that the legislature used to define “overall project” are themselves statutorily defined and limited to the development and construction phase of those projects, and not the subsequent operations of those facilities.  The “convention center project,” for instance, is defined in Section 32-600(6) of the General Statutes as “the development, design, construction, finishing, furnishing and equipping of the convention center facilities and related site acquisition and site preparation.”  Similarly, the “stadium facility project” and the “parking project,” the other two specific terms used to define the “overall project,” are defined by statute to refer solely to the development phase of those facilities.  See Conn. Gen. Stat. § 32-651(23) & (35).

 

Section 32-664(b), itself, when viewed in the context of the broader statute, appears to have been intended to address only the pre-operational phases of the various projects it regulates. Although other statutorily defined terms describe the post-construction operations of the facilities that comprise the Adriaen’s Landing project, see, e.g., Conn. Gen. Stat. § 32-651(11) (describing “stadium facility operations”), the legislature chose not to include these terms in the definition of the “overall project”.  Additionally, in Section 32-665(b) of the Connecticut General Statutes, the legislature expressly made certain public components of the overall project -- specifically the convention center, the  stadium facility and the related party facilities -- subject only to applicable ordinances, laws and regulations relating to state facilities.  In contrast, the legislature did not limit in any way the applicability of ordinances, laws and regulations to privately owned and operated on-site facilities, such as the Hotel.  

 

In short, nothing in the definition of “overall project” or the text, title or context of Section 32-664(b) indicates that the legislature intended to preempt all local ordinances, laws and regulations that might otherwise apply to the subsequent operations of the facilities that comprise that project, including privately owned and operated commercial facilities such as the Hotel.  If the legislature had intended such a far-reaching result, it could have, and presumably would have, clearly indicated that intent in the legislation it passed in connection with the “overall project.

 

Instead, the legislature clearly limited its definition of “overall project,” and thus the legislation that regulates the various facilities that comprise that term, to the construction and design phase of those facilities.  This point is especially clear with respect to the Hotel, which only falls within the definition of “overall project” by virtue of the legislature’s inclusion in Section 32-651(22) of “the development, design, construction, finishing, furnishing and equipping of the on-site related private development.” 

 

The preemptory language contained in Section 32-664(b) of the Connecticut General Statutes was not intended to occupy the entire field of regulation in this area and does not irreconcilably conflict with the Living Wage Ordinance.  We conclude, therefore, that the statute does not preclude the City of Hartford from applying its Living Wage Ordinance to the operations of this privately owned facility.

 

I trust this opinion responds to the questions raised in your letter.    

 

Very truly yours,

 

 

RICHARD BLUMENTHAL

ATTORNEY GENERAL

Robert W. Clark

Assistant Attorney General



1 This Office expresses no view as to whether or how the Living Wage Ordinance, as presently drafted, actually applies to the operations of the Hotel.  Rather, this Opinion is intended to address only whether, if the Living Wage Ordinance were construed to apply to the Hotel’s operations, it would be preempted by Section 32-664(b) of the Connecticut General Statutes.  

2 Conn. Gen. Stat. § 32-600(5) provides that: “‘Convention center hotel’ means the privately developed hotel required to be constructed and operated in conjunction with the convention center, as more particularly described in the master development plan, as defined in section 32-651, including the second phase of the convention center hotel as therein described.”

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