Earlier this year, the Supreme Judicial Court (SJC) issued a relatively straightforward decision concerning heliports, home rule authority, and preemption – Roma, III, Ltd. v. Board of Appeals of Rockport (pdf). The decision held that a municipality could exercise its home rule authority to regulate private heliports and other non-commercial aircraft landing areas, and that neither state nor federal law preempts this local control. At the time, Roma did not seem blog-worthy. This is Massachusetts. Home rule is important.
And who could consider it sound policy to prohibit municipalities from regulating private aircraft landing activity, especially in industrial and commercial zoning districts? Not even a zealous Aeronautics Commission would want the responsibility of reviewing – and then approving, revising, or denying – proposed regulations for private landing areas in each of Massachusetts’ 351 towns and cities.
But then I thought about it differently. Allowing a municipality to regulate – even prohibit – a private heliport makes sense. It’s a loud, potentially obnoxious, potentially hazardous use. But what about allowing a municipality to regulate or prohibit a drone landing area? The statute at issue in Roma – G.L. c. 90, §§ 35, et seq. – defines “Aircraft” as “any contrivance now known, or hereafter invented, used or designed for navigation of or flight in air.” There is no requirement that it be manned. Taken literally, this definition encompasses drones. And a “restricted landing area” is simply “any area of land or water other than an airport which is used, or is made available, for the landing and take-off of aircraft…”
Just last September, the U.S. District Court struck down drone regulations adopted by the City of Newton in Singer v. City of Newton. The U.S. District Judge held that those local regulations were preempted by federal law. But those regulations imposed burdensome registration requirements and purported to regulate the drones in flight. Roma emphasizes the difference between regulating the flight of aircraft and regulating the landing of aircraft, and upheld the latter against federal and state preemption arguments. It begs the question, can municipalities regulate drones through the use of traditional land use and zoning laws? That relatively straightforward decision I did not write about before may have far less straightforward implications.