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 Virginia Code § 15.2-926.3, originally enacted to set state-level rules for unmanned aircraft systems, contains an explicit preemption: "[n]o political subdivision may regulate the use of a privately owned,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

Under the opinion, your local government cannot ban drone takeoffs and landings on private property and cannot require a conditional or special use permit for them. The opinion reads § 15.2-926.3 as a general bar on local regulation of private drone use, with one exception: a locality may regulate takeoffs and landings on property the locality itself owns. The opinion states that private drone use remains "subject only to state and federal law," but it does not catalog the specific federal or state rules that apply.

If you are a county zoning administrator or planning commission member

The opinion concludes that an ordinance prohibiting, conditioning, or requiring approval of private drone takeoffs and landings on private land falls outside the one exception in § 15.2-926.3 and is therefore prohibited. The exception allows regulation only of takeoffs and landings on locally-owned property, and even there only when the regulation "comports with state and federal law." The opinion contrasts this with aircraft noise overlay zones (§ 15.2-2295) and helicopter special use permits (§ 15.2-2293.2), where the General Assembly did expressly grant local authority.

If you are a city or county attorney

The opinion rests on the Dillon Rule: Virginia localities have only the powers the General Assembly expressly grants, and the General Assembly granted local drone-regulation authority only for locally-owned property. The opinion treats the omission of any grant for private-land takeoffs and landings, set against the explicit grants for noise overlays and helicopter landings, as intentional.

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

The opinion holds that the preemption is not limited to recreational use; "privately owned, unmanned aircraft system" reaches commercial operators, so a locality cannot impose a takeoff/landing zoning regime on commercial drones either. For takeoffs and landings on locally-owned property (a county park, a city plaza), the locality may have a valid regulation under the § 15.2-926.3 exception.

If you are a neighbor concerned about drone activity

The opinion holds only that local zoning cannot reach private drone takeoffs and landings on private property. It notes that private drone use remains subject to state and federal law, but it does not identify particular remedies a neighbor could use.

Common questions

Q: Can my locality regulate drone takeoffs from a public park?
A: Yes. The opinion reads § 15.2-926.3 as letting a locality regulate takeoffs and landings on property the locality owns, provided the regulation comports with state and federal law. A public park is locally-owned property, so an ordinance restricting drone takeoffs from the park falls within that exception.

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: The opinion addresses only what political subdivisions (counties, cities, towns) may do under § 15.2-926.3. It does not address private covenants or HOA rules, which are not local-government regulation.

Background and statutory framework

Section 15.2-926.3 provides that "[n]o political subdivision may regulate the use of a privately owned, unmanned aircraft system . . . within its boundaries," while allowing a political subdivision to "regulate the take-off and landing of [a drone] on property owned by the political subdivision," provided the regulation comports with state and federal law. The opinion reads that text as a general bar on local regulation of private drone use with a single, narrow exception for locally-owned property.

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