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 require a special use permit for, or completely prohibit, drone takeoffs and landings on private property.

Plain-English summary

Delegate Jay Leftwich asked the AG a question several Virginia counties had already started flirting with: can they zone out drone takeoffs and landings on private property? Some had been considering ordinances that would either ban such takeoffs and landings entirely or require a conditional or special use permit.

AG Jason Miyares said no. Virginia Code § 15.2-926.3, originally enacted to set state-level rules for unmanned aircraft systems, contains an explicit preemption: "[n]o political subdivision may regulate the use of a privately owned, unmanned aircraft system . . . within its boundaries." The statute carves out exactly one exception: a locality may regulate takeoffs and landings on property the locality itself owns. Takeoffs and landings on private land are off-limits to local regulation, and the AG read the statute as meaning what it says.

The opinion did the cross-check that Virginia statutory interpretation usually requires. Where the General Assembly wanted to give localities aircraft-related zoning authority, it did so explicitly. Aircraft noise overlay zones (§ 15.2-2295) are explicitly authorized. Special use permits for repetitive helicopter landings on the same parcel (§ 15.2-2293.2) are explicitly authorized. The legislature knows how to grant local aircraft zoning authority. It chose not to grant any for private drones beyond the one carve-out.

Under the Dillon Rule, which Virginia applies strictly, localities only have the powers the General Assembly explicitly grants. With drones, the General Assembly explicitly took the power away. A locality cannot adopt a complete prohibition, cannot require a special exception or conditional use permit, and cannot otherwise regulate the takeoff or landing of privately-owned drones on private property.

The AG closed by acknowledging that drone law is evolving fast and that federal, state, and local rules will likely shift over time. But under the law as it stood when the opinion was issued, the local-zoning lane is closed.

What this means for you

If you operate a drone (recreational or commercial) in Virginia

Your local government cannot ban your drone takeoffs and landings on your own property, and cannot require you to get a county permit before flying. If a locality has been telling you otherwise, this opinion is direct authority pushing back. State law preempts.

That said, you are not unregulated. Federal Aviation Administration rules continue to apply (Part 107 for commercial use, recreational pilot rules under § 44809, registration, controlled airspace restrictions, line-of-sight requirements, the under-400-feet limit for hobbyists). State criminal laws apply (peeping, harassment, trespass by drone). And the carve-out for locally-owned property means your local park, school, or government building may have its own rules for takeoffs and landings on those properties. If you are operating from someone else's private land, you need their permission as a property law matter, but the locality cannot make that arrangement contingent on a zoning permit.

If you are a county zoning administrator or planning commission member

If your locality has adopted (or is considering) a drone takeoff/landing ordinance applicable to private property, this opinion likely makes it unenforceable. The exception is narrow: § 15.2-926.3(B) permits regulation only on locally-owned property, and even there, regulation must comply with state and federal law.

Your locality can still address related concerns through other authorities. Aircraft noise overlay zones (§ 15.2-2295) cover noise. The state statute itself (§ 15.2-926.3(D)) preserves some local enforcement of state-level drone rules. And if a particular drone use rises to a public nuisance or violates state criminal law, those tools remain. What you cannot do is impose a permitting or zoning regime targeting private drone takeoffs and landings on private property.

If you are a city or county attorney

The opinion gives you a clean answer to deliver to clients pressing for drone zoning. The Dillon Rule analysis is straightforward, and the comparison with aircraft noise overlay zoning and helicopter special use permits makes the legislative choice clear. If your locality has adopted an unenforceable ordinance, advise withdrawal or amendment. If a property owner sues to enjoin enforcement, this opinion plus the plain text of § 15.2-926.3 should win.

If you are a real estate or commercial drone operator (delivery, photography, surveying, agriculture)

You have statewide consistency. There is no patchwork of county-by-county takeoff and landing rules to navigate as you cross jurisdictions. FAA rules and state law are your governance frame, not local zoning. This is meaningful for businesses that operate across multiple counties; you do not have to compile a database of local drone ordinances.

For takeoff and landing on locally-owned property (a county park, a city plaza), check whether the locality has adopted a § 15.2-926.3(B) regulation. Those are valid.

If you are a neighbor concerned about drone activity

Local zoning is not the lever. Your remedies are state law (peeping, harassment, trespass to chattels if a drone hits your property), nuisance theory (if the use rises to common law nuisance), and FAA reporting (if the operation violates federal rules around your home, near an airport, or above 400 feet). Asking your county to zone the activity will not work.

If you are a Virginia legislator considering follow-up

The AG's opinion explicitly invites legislative action. The 2020 amendment that added the takeoff/landing carve-out (§ 15.2-926.3(B)) and the enactment clause directing the Virginia Department of Aviation to develop rules (2020 Va. Acts ch. 345) suggest the General Assembly intends for drone regulation to happen at the state level. If localities should have more authority over drone activity, that needs an explicit grant. The current statutory structure forecloses it.

Common questions

Q: Can my locality regulate drone takeoffs from a public park?
A: Yes. Section 15.2-926.3(B) lets the locality regulate takeoffs and landings on property the locality owns. A public park ordinance restricting drone takeoffs from the park is within local authority, subject to compliance with state and federal law (including First Amendment limits on filming public spaces).

Q: Can the locality require me to register my drone with them?
A: No. Registration is regulation of "the use of" the drone, which the locality is generally barred from imposing. Federal registration with the FAA is a separate matter.

Q: Can the locality ban drone use over private residential neighborhoods?
A: This is functionally an attempt to regulate drone use beyond a locally-owned property, which § 15.2-926.3 prohibits. State and federal restrictions on flight (privacy laws, FAA rules) apply, but local zoning does not extend here.

Q: What if the drone is used for commercial purposes?
A: The statutory preemption is not limited to recreational use. "Privately owned, unmanned aircraft system" includes commercial operators. The locality cannot impose a takeoff/landing zoning regime on commercial drones either.

Q: What about aircraft noise overlay zoning?
A: That is separately authorized under § 15.2-2295. A locality can adopt a noise overlay zone for areas around airports or other significant noise generators. Drones are not generally subject to those overlays unless the locality includes them, and even then, the takeoff/landing regulation portion is preempted by § 15.2-926.3.

Q: My homeowners association has rules about drones in my subdivision. Are those affected?
A: No. The AG opinion is about what political subdivisions (counties, cities, towns) may do, not what private parties or HOAs may do. HOA covenants are private contractual restrictions and remain enforceable through the HOA's mechanisms.

Q: Are there any takeoff/landing rules I should follow even though my locality cannot enforce them?
A: Yes. FAA rules apply: maintain visual line of sight, fly under 400 feet for recreational use, do not fly over people or moving vehicles without authorization, do not fly within five miles of an airport without notification (Part 107) or LAANC authorization, do not fly in restricted or prohibited airspace. State criminal laws on peeping, harassment, and trespass apply. Operate sensibly.

Background and statutory framework

Virginia adopted § 15.2-926.3 to preempt local drone regulation as drones became widely available. The original statute (before the 2020 amendment) was a flat preemption: localities could not regulate private drone use. The 2020 amendment added subsection (B), the narrow exception allowing localities to regulate takeoffs and landings on locally-owned property, and an enactment clause directing the Virginia Department of Aviation to develop rules and regulations specific to takeoffs and landings in consultation with industry stakeholders and localities.

The Dillon Rule, codified in Tabler v. Bd. of Supvrs. and reaffirmed in Sinclair v. New Cingular Wireless, holds that Virginia local governments have only the powers explicitly granted by the General Assembly. The rule is "strictly construed," meaning any doubt about local authority is resolved against the locality. This makes the affirmative grant of local authority in § 15.2-926.3(B) the maximum extent of local power.

The statutory comparison the AG used (aircraft noise overlay zoning under § 15.2-2295; helicopter special use permits under § 15.2-2293.2) is a standard Virginia interpretive move. When the legislature has used specific language in one place and omitted it in another, the omission is presumed intentional. Zinone v. Lee's Crossing Homeowners Ass'n is the canonical citation.

The supremacy of state law over local ordinances is codified in § 1-248 and reinforced in Rowland v. Town Council of Warrenton. Local ordinances cannot conflict with state statutes; where they do, the state statute prevails.

Citations and references

Statutes:
- Va. Code Ann. § 15.2-926.3 (drone preemption)
- Va. Code Ann. § 15.2-2280 (zoning enabling)
- Va. Code Ann. § 15.2-2293.2 (helicopter special use permits)
- Va. Code Ann. § 15.2-2295 (aircraft noise overlay zones)

Cases:
- Tabler v. Bd. of Supvrs. of Fairfax Cnty., 221 Va. 200 (1980) (Dillon Rule)
- Rowland v. Town Council of Warrenton, 298 Va. 703 (2020) (state statute prevails over conflicting ordinance)
- Zinone v. Lee's Crossing Homeowners Ass'n, 282 Va. 330 (2011) (omitted language presumed intentional)

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