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

Delegate Bulova asked whether the Fairfax County Park Authority may bar drone use in its parks except with written permission in designated areas. The Authority owned the parks it maintained and intended to regulate drone launch and landing there, not flights over the parks by drones launched elsewhere.

The AG concluded that the Authority may adopt such rules. Virginia law barred a "locality" from regulating privately owned drones. The opinion quotes the statutory definition of locality as "a county, city, or town." A park authority is instead "a body politic and corporate" created by a locality, so the restriction on localities does not extend to it.

The AG also quoted a park authority's power "[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." He concluded that a rule protecting public safety by controlling launch and landing within park property falls within that power.

The opinion lists other types of governmental entities as examples of bodies distinct from localities. It does not decide whether any of those entities may regulate drones.

What this means for you

If you operate a park authority

The opinion concludes that a park authority may regulate drone takeoff and landing on its park property to protect the property and people there. It analyzes the Authority's stated launch-and-landing rule, not drone overflight from outside the parks.

If you fly drones

The opinion says the statute restricting locality drone regulation does not apply to park authorities. The Fairfax County Park Authority's written-permission and designated-area rule is the practice described in the request.

Currency note

The opinion was issued in 2018. Check current law and later authority before applying it to a present drone rule.

Common questions

Why is a park authority different from a locality under this statute? The AG quotes the definition of locality as "a county, city, or town." A park authority is a separately created body politic and corporate, so the AG did not read the statutory restriction as covering it.

Does the opinion decide whether a park authority may regulate overflight? No. The Authority stated that it intended to regulate launch and landing in its parks, not overflight by drones launched and landed elsewhere.

Can airport commissions or other authorities regulate drones? The opinion lists several governmental entities as examples that are not localities. It does not analyze their drone-regulation authority.

Background and statutory framework

The opinion addresses two parts of Virginia law: the statutory restriction on drone regulation by localities and the separate statutory power of a park authority to adopt rules for property under its control. Because the General Assembly used "locality" in the former provision and granted park authorities property-management powers in the latter, the AG concluded that a public park authority may make rules for drone operation in its parks.

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