Municipalities, Cities, and States Can Regulate Drone Use
Our recent article on South Elgin’s drone ordinance prompted a few people to contact our firm. In a couple of instances, we received erroneous suggestions that state and local governments could not regulate (eg enact laws) governing the use of drones within their political boundaries. While federal law preempts the regulation of federal airspace, and while local and state governments need to be careful in crafting drones laws, they may lawfully enact regulations governing the use of drones.
Although the federal government possesses “exclusive sovereignty over United States airspace” through the Federal Aviation Act, this does not preclude municipalities from exercising some control over their air space. Under the ancient doctrine cujus est solum ejus est usque ad coelom, ownership rights in land extended to the periphery of the universe. United States v. Causby, 328 U.S. 256, 260-61, 66 S. Ct. 1062, 1065 (1946). However, the Supreme Court eventually constrained this doctrine given the advent of aviation. Id. Nonetheless, “the orthodox common law rule . . . that any intrusion into the air space above the land of another amounts to a trespass,” Holt v. Crest Lincoln Mercury, Inc., No. 283667, 1990 Conn. Super. LEXIS 1957 (Super. Ct. Dec. 10, 1990) (citing 75 Am. Jur. 2d, Trespass, Sec. 13), maintains its viability at least to the extent that property owners own – and thereby control – that portion of the space above their ground that they can occupy or use. Kramer v. Angel’s Path, LLC, 2007-Ohio-7099, ¶ 26, 174 Ohio App. 3d 359, 370, 882 N.E.2d 46, 54 (2007 Ohio) (citing Chance v. BP Chemicals, Inc. (1996), 77 Ohio St. 3d 17, 25, 670 N.E.2d 985); see also Willoughby Hills v. Corrigan (1972), 29 Ohio St.2d 39, 50, 278 N.E.2d 658).
Interestingly, trespass of airspace still remains codified in the few states in which the Uniform State Aeronautics Law remains good law. In Delaware, § 304 of the Aeronautics Law states:
Flight in aircraft over the lands and waters of this State is lawful, unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath.
2 Del. C. § 305 (1993). As articulated in Rodgers v. Erickson Air-Crane Co., 740 A.2d 508, 511 (Del. Super. Ct. 1999), “§ 304 makes flight lawful, unless such flight amounts to a nuisance, trespass or otherwise poses a danger to persons or property on the ground.” Moreover, “low flight during landing, taking off, or otherwise, is expressly outside of the statutory definition of lawful flight; and being an unprivileged intrusion in the space above the land, such flight is a trespass.” Vanderslice v. Shawn, Del. Ch., 26 Del. Ch. 225, 27 A.2d 87, 90 (1942).
Based on the foregoing, a property owner may have claims against a drone operator for nuisance and/or trespass where the drone flights over that portion of the airspace that an owner may occupy or use. A municipality may also control such airspace as it occupies or uses. Indeed,
where signs or other devices project over public property or encroach upon the air space over it, the law is clear that the municipality may regulate them without regard to the public safety, welfare, and morals, and may do so on the theory that no one has a right to appropriate to himself that which belongs to the public.
Cong. Hotel Co. v. Samuel, 66 Pa. D. & C. 418, 422 (C.P. 1948). In fact, a municipality may regulate property it does not own under its designated police power, such as signs on buildings. Id.
Thus, although the federal government possesses “exclusive sovereignty over United States airspace” through the Federal Aviation Act, state and local governments still may regulate land use. Aviation Cadet Museum, Inc. v. Hammer, 373 Ark. 202, 283 S.W.3d 198 (2008). To be sure, the regulation of land use does not conflict with that of federal regulation of federal airspace. Condor Corp. v. St. Paul, 912 F.2d 215 (8th Cir. 1990); Emerald Dev. Co. v. McNeill, 82 Ark. App. 193, 198, 120 S.W.3d 605, 609 (2003); Thul v. State, 657 N.W.2d 611 (Minn. Ct. App. 2003) (citing Condor). Under this interpretation and balance between land use and federal airspace, courts have upheld local regulation of heliports, id., and preclusion of operation of helicopters on private land. Boch v. Tomassian, 23 LCR 175 (Mass. Land Ct. 2015).
In the Seventh Circuit, the Court held that a local ordinance prohibiting landing areas did not preempt federal law. Hoagland v. Town of Clear Lake, 415 F.3d 693, 697 (7th Cir. 2005). Hoagland follows precedent affirming that federal law does not preempt local government regulation on the placement of aeronautical facilities “even where land use regulations may have some tangential impact on the use of airspace.” Gustafson v. City of Lake Angelus, 76 F.3d 778, 786-787 (6th Cir. 1996); see also Faux-Burhans v. County Comm’rs of Frederick County, 674 F. Supp. 1172, 1174 (D.Md.1987), aff’d, 859 F.2d 149 (4th Cir. 1988), cert. denied, 488 U.S. 1042, 109 S. Ct. 869, 102 L. Ed. 2d 992 (1989). And, courts have also since followed Hoagland. See Twp. of Readington v. Solberg Aviation Co., 409 N.J. Super. 282, 305, 976 A.2d 1100, 1113 (Super. Ct. App. Div. 2009).
Extending this principle, federal aviation law does not preempt municipalities from exercising their land use powers to regulate ground activities and require permits for engaging in certain aeronautical related activities “even if it has a bearing on where federally regulated aeronautical activities may be conducted.” Skydive Or., Inc. v. Clackamas Cty., 122 Or. App. 342, 345 857 P.2d 879, 882 (1993) (citing Condor).
Based on the foregoing, just as local and state governments may determine where helicopters operate and require persons to obtain permits to engage in aeronautical related activities within their jurisdiction, they also have the ability to regulate where drone enthusiasts and commercial drone operators may use drones.