Can the Fairfax County Park Authority ban drone takeoffs and landings in its parks despite a Virginia statute preempting locality regulation of private drones?

Plain-English summary

The Fairfax County Park Authority owns the parks it maintains. It had in place a rule barring drone use in those parks except in designated areas with the Authority's written permission, regulating only launch and landing on its property (not overflight). Delegate Bulova asked whether that rule is permissible given Code § 15.2-926.3, which says "[n]o locality may regulate the use of a privately owned, unmanned aircraft system ... within its boundaries."

The Attorney General said yes, the rule is permissible. The statute restricts only "localities," and Code § 15.2-102 defines that term to mean "a county, city, or town." A park authority is not a county, city, or town. Park authorities are bodies politic and corporate established under the Virginia Park Authorities Act (Code §§ 15.2-5700 to -5714), and federal district court precedent confirms they are separate and distinct public entities from the localities that create them. The General Assembly knows how to address bodies politic and corporate when it wants to, but in this statute used the narrower word "locality." Adding "park authority" to the prohibition would require courts to expand the statute beyond what the General Assembly chose to enact.

The AG also pointed to the park authority's affirmative authority. Code § 15.2-5704(17) empowers a park authority to "adopt such rules and regulations concerning the use of properties under its control as will tend to the protection of such property and the public thereon." Controlling drone takeoff and landing within park property is squarely within that grant of authority.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Code § 15.2-926.3 preempts local regulation of drones: "No locality may regulate the use of a privately owned, unmanned aircraft system ... within its boundaries." The statute was enacted to keep drone regulation primarily at the federal and state level and to prevent a patchwork of conflicting county and municipal rules. "Locality" has a precise definition in Code § 15.2-102: a county, city, or town. The statute does not mention park authorities, airport commissions, community development authorities, electric authorities, or economic development authorities, all of which are separate political subdivisions that can exist alongside (but separately from) the localities that create them.

Virginia has a long-standing structural distinction between localities and other political subdivisions. The Supreme Court of Virginia's County of York v. Peninsula Airport Comm'n (1988) confirmed the airport commission's status as a political subdivision rather than a part of the county. Federal court in Miller v. County of Rockingham (2007) confirmed the same for park authorities: "The determination that a park authority is not an arm of the Commonwealth entitled to sovereign immunity does not affirmatively establish that the Park Authority is merely a part of the Counties, rather than an independent public entity. While park authorities are indeed created by localities, the Park Authorities Act clearly establishes that, upon their creation, they operate as separate and distinct public entities."

The park authority's affirmative power source is Code § 15.2-5704(17), which authorizes a park authority to adopt rules and regulations "concerning the use of properties under its control as will tend to the protection of such property and the public thereon." The AG concluded that controlling drone takeoff and landing on park property fits comfortably within "protection of such property and the public thereon."

Common questions

Why doesn't the locality drone-preemption statute also cover park authorities?
Because the General Assembly chose the word "locality," and Code § 15.2-102 defines that term to mean only counties, cities, and towns. Park authorities are bodies politic and corporate created under a separate statutory framework. Courts are not allowed to add language to statutes; they have to apply the language the General Assembly enacted.

Can the park authority regulate drone overflight as well as takeoff and landing?
The Fairfax County Park Authority intended to regulate only launch and landing on its property, not overflight by drones launched and landed from elsewhere. The opinion addresses this limited regulation. Whether a park authority can regulate overflight likely raises distinct federal preemption issues under FAA authority over airspace, which the opinion does not analyze.

Does this mean a park authority's drone rules can conflict with state or federal drone rules?
No. Park authority rules have to be consistent with applicable state and federal law. The opinion concerns only the question of whether § 15.2-926.3's preemption of locality drone regulation reaches a park authority. It does not give park authorities a blank check.

What about airport commissions, community development authorities, and economic development authorities? Can they also regulate drones?
The opinion suggests yes, by analogy: those are also separate bodies politic and corporate that the General Assembly distinguished from "localities" in other statutes. Each authority's specific drone rule would still have to be supported by its own enabling statute, but the locality-preemption statute does not block them.

Does the park authority have to designate areas where drones are permitted?
That is a policy choice, not a legal requirement. The opinion confirms the legal authority to adopt rules; the form of the rules (categorical ban, designated zones, permit requirement) is up to the authority.

What is the "body politic and corporate" structure?
It is a Virginia statutory category for public entities that are legally separate from the localities that create them, with their own powers, ability to sue and be sued, and (sometimes) sovereign immunity. Park authorities, airport commissions, community development authorities, electric authorities, and various economic development authorities all fall in this category.

Citations

• Va. Code § 15.2-926.3 (locality drone-preemption)
• Va. Code § 15.2-102 (definition of "locality")
• Va. Code § 19.2-60.1 (definition of "unmanned aircraft system")
• Va. Code §§ 15.2-5700 to -5714 (Virginia Park Authorities Act)
• Va. Code § 15.2-5704(17) (rule-making authority)
• County of York v. Peninsula Airport Comm'n, 235 Va. 477 (1988)
• Miller v. County of Rockingham, No. 5:06CV00053, 2007 U.S. Dist. LEXIS 58157 (W.D. Va. Aug. 9, 2007)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2018/17-047-Bulova-park_authority_regulating_drones-for_issuance.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

March 1, 2018

The Honorable David L. Bulova
Member, Virginia House of Delegates
Post Office Box 106
Fairfax Station, Virginia 22039

Dear Delegate Bulova:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of
the Code of Virginia.

Issue Presented
You ask whether the Fairfax County Park Authority may bar the use of unmanned aircraft
systems ("drones") except with the Authority's written permission, and when used in designated areas.

Background
You state that the Fairfax County Park Authority (the "Authority") was created by Fairfax County
under the Virginia Park Authorities Act. It is the titled owner of the parks it maintains. For some time, it
has had in place a rule precluding the use of drones in its parks except in designated areas with the
Authority's written permission. The Authority intends to regulate only the launch and landing of drones
in its parks, but not overflight by drones launched and landed from other locations.

Applicable Law and Discussion
By statute, "[n]o locality may regulate the use of a privately owned, unmanned aircraft system ...
within its boundaries." By its express terms, this restriction applies only to localities. The term
"locality" means only "a county, city, or town." There are numerous other types of governmental
entities under Virginia law, some of which are referred to as either political subdivisions or bodies
corporate and politic, or as both. Examples include a county health commission, an airport commission,
a community development authority, an electric authority, and an economic development authority.

Again, the statute in question restricts the authority only of "localities," i.e., counties, cities, and
towns, to regulate drones. A park authority is not a county, city, or town. It is instead "a body politic
and corporate," created by a locality pursuant to authorizing statutes duly enacted by the General
Assembly. It is "deemed to be performing essential governmental functions providing for the public
health and welfare."

We must assume that the General Assembly chose with care the words it used when enacting any
statute. Here, the key term chosen in the statute restricting the power to regulate drones was "locality"
rather than "park authority" or "body politic and corporate." Rules of statutory construction prohibit
adding language to a statute, and thus one cannot conclude that the General Assembly intended to bar
park authorities from regulating drones, as that term was not used. Only counties, cities, and towns, are
barred, but not park authorities.

Further, a park authority is statutorily empowered "[t]o adopt such rules and regulations
concerning the use of properties under its control as will tend to the protection of such property and the
public thereon." Based on this statutory grant of authority, a park authority rule protecting public safety
by controlling the launch and landing of drones within park property is legally authorized.

Conclusion
For the foregoing reasons, it is my opinion that a public park authority may adopt rules or
regulations concerning the operation of unmanned aircraft systems, commonly known as drones, in its
parks.
With kindest regards, I am
Very truly yours,

Mark R. Herring
Attorney General