Can my Virginia county or city require a special use permit, or just ban outright, the takeoff and landing of my private drone on my own property?

Subject

Whether a Virginia locality may ban private drone takeoffs and landings on private property or require a conditional or special use permit for them.

Plain-English summary

Virginia Attorney General Jason Miyares concluded that a locality may not prohibit privately owned drones from taking off or landing on private property or make those activities conditional on a special use permit or other local approval. He based that conclusion on Virginia Code § 15.2-926.3, which says that no political subdivision may regulate the use of a privately owned unmanned aircraft system within its boundaries. The statute allows a narrower exception for takeoffs and landings on property owned by a political subdivision, if the local rule also complies with state and federal law.

The opinion recognizes that localities generally have zoning authority, including authority over airspace above private land. It says that authority yields to the specific state restriction on local drone rules. The AG also compares other aircraft laws: the General Assembly expressly authorized local aircraft noise overlay zones and permits for repetitive helicopter landings, but gave no comparable authority for private drone takeoffs and landings on private land. The opinion addresses the law as it stood in January 2023 and anticipates further changes in drone regulation.

What this means for you

If you operate a privately owned drone

The opinion says a county or city cannot ban your takeoff or landing on private property or require a conditional or special use permit for that activity. It does not exempt drone use from state or federal law. If you plan to use property owned by a locality, check that locality’s takeoff and landing rules, because § 15.2-926.3 permits regulation there when the rule complies with state and federal law.

If you write or enforce local zoning rules

The AG concluded that a local ban, permit condition, or prior approval requirement for private drone takeoffs and landings on private land falls outside the statute’s exception. The opinion distinguishes that activity from takeoffs and landings on property a political subdivision owns. It does not decide what any specific local ordinance permits or prohibits under other laws.

If you own land affected by drone activity

This opinion addresses the scope of local government regulation. It says private drone use remains subject to state and federal law, but it does not identify a remedy for a particular flight or resolve any private property dispute.

Common questions

Q: Can my locality require a special use permit for a privately owned drone to take off from my land?
A: No. The AG expressly concluded that localities cannot subject those private-property takeoffs and landings to conditional or special use permits.

Q: Can a locality regulate takeoffs from property it owns?
A: Yes, within the exception in § 15.2-926.3. Any such rule must also comply with state and federal law.

Q: Does the opinion decide whether a particular flight violates federal or state law?
A: No. It addresses local power to regulate privately owned drones and says their use remains subject to state and federal law.

Background and statutory framework

The opinion quotes § 15.2-926.3: “[n]o political subdivision may regulate the use of a privately owned, unmanned aircraft system . . . within its boundaries.” It also quotes the exception allowing a political subdivision to “regulate the take-off and landing of [a drone] on property owned by the political subdivision,” provided the rule otherwise comports with state and federal law. The AG concluded that the exception does not reach takeoffs and landings on private land.

The opinion explains that Virginia local governments have powers expressly granted by the General Assembly, powers fairly implied by those grants, and powers essential to them. Although localities generally may regulate land use through zoning, their ordinances must be consistent with state law. The AG treated § 15.2-926.3 as controlling over the general zoning power in this situation.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/22-046-Leftwich-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

COMMONWEALTH OF VIRGINIA

Office of the Attorney General

Jason S. Miyares
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

January 26, 2023

The Honorable James A. Leftwich, Jr.
Member, House of Delegates
Pocahontas Building, Room W232
900 East Main Street
Richmond, Virginia 23219

Dear Delegate Leftwich:

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

Issues Presented

You inquire regarding the scope of a locality's authority to regulate the takeoff and landing of privately-owned unmanned aircraft systems ("drones") on private property. You more specifically ask whether a locality may prohibit completely such drone takeoffs and landings within its jurisdiction or subject such takeoffs and landings to conditional or special use permits or other approval requirements.

Response

It is my opinion that Virginia law currently limits local authority to regulate the use of privately-owned drones; a locality may regulate the takeoffs and landings of such aircraft only on property owned by political subdivisions. It further is my opinion that a locality therefore may not adopt zoning regulations that prohibit such takeoffs and landings on private property nor subject the activity to conditional or special use permit requirements.

Applicable Law and Discussion

The powers of political subdivisions of the Commonwealth are governed by the Dillon Rule, whereby local governing bodies have only those powers that are expressly granted by the General Assembly, those that are necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable. The General Assembly has delegated to localities the authority to control land use within their boundaries through zoning. "This delegation of authority . . . is a delegation of the Commonwealth's police power to legislate" in the area of land use.

Local zoning authority generally includes the power to allow certain uses only upon a landowner meeting certain conditions, whereby a landowner first must obtain a conditional use or special use permit for that use. Although localities have broad discretion in the enactment of zoning ordinances, their zoning powers are not absolute. Adopted "ordinances must be consistent with the laws of the Commonwealth[,]" and "[w]hen a statute enacted by the General Assembly conflicts with an ordinance enacted by a local governing body, the statute must prevail."

Although the General Assembly generally has empowered localities to apply zoning ordinances to the superjacent airspace of any private land area, Virginia Code § 15.2-926.3 expressly provides that "[n]o political subdivision may regulate the use of a privately owned, unmanned aircraft system . . . within its boundaries." A political subdivision nevertheless may "regulate the take-off and landing of [a drone] on property owned by the political subdivision[,]" provided such regulation otherwise comports with state and federal law.

The plain language of the statute makes clear that a locality generally is prohibited from regulating private drone use. The statute affords only one, limited exception to the general prohibition: a locality may regulate such use only to the extent it involves takeoffs and landings on land the locality owns. By its terms, the exception does not extend to takeoffs and landings on private land. Accordingly, the General Assembly has empowered localities to adopt regulations regarding takeoffs and landings of drones on their own public property, but it has prohibited localities from otherwise regulating the use of privately-owned drones. Because the complete prohibition of and the imposition of permitting requirements on takeoffs and landings on private land are regulatory actions that fall outside this narrow exception, I conclude that any such actions by a locality are prohibited under § 15.2-926.3.

This conclusion is supported by the fact that, in other circumstances, the General Assembly specifically has authorized greater local regulation of aircraft. In particular, a locality may adopt aircraft noise overlay zones and "local zoning ordinances may require a special exception, special use permit, or conditional use permit for repetitive helicopter landings and departures on the same parcel of land in some or all zoning districts." Generally, when the legislature "has used specific language in one instance, but omits that language or uses different language when addressing a similar subject elsewhere in the Code, we must presume that the difference in the choice of language was intentional." Had the General Assembly intended to authorize a locality to subject private drone use to such regulation, it could have done so.

The language of § 15.2-926.3 evinces an overall intent of the General Assembly to permit the private use of drones, subject only to state and federal law. I therefore conclude that current law precludes local governing bodies from taking any action regulating the use for the takeoff or landing of privately-owned drones on private property within their respective jurisdictions, to include adoption of ordinances that completely prohibit, impose conditions on, or require prior approval of drone takeoffs and landings on private property.

I note that drones are an evolving technology, with a multitude of recreational, commercial, law enforcement, and public safety applications. The rapid growth and expansion of the technology has prompted legislation on the federal, state, and local levels to adapt to the still-developing technology, attempting to enable the many valuable uses of drones while prohibiting inappropriate or dangerous uses. I expect that new legislation and regulation on all levels will continue to change the regulatory landscape as the technology continues to evolve.

Conclusion

Accordingly, it is my opinion that, because Virginia law currently limits local authority to regulate the use of privately-owned drones to the regulation of takeoffs and landings of such aircraft on property owned by political subdivisions, a locality may not adopt zoning regulations that prohibit the takeoff and landing of privately-owned drones on private property, nor subject the activity to conditional or special use permit requirements.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General