Agenda - Planning Commission - 12/07/2017

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November 10, 2017 I Volume 11 I Issue 21 Zoning Bulletin City of Newton (the "City"). Singer was a Federal Aviation Administration ("FAA") -certified small unmanned aircraft ("drone") pilot and owned and operated multiple drones in the City. In December 2016, "[i]n order to prevent nuisances and other disturbances of the enjoyment of both public and private space," the City adopted an ordinance (the "Ordinance") regulating drone use in the City. Among other things, the Ordinance imposed registration require- ments on drone owners. It also banned the use of drones; below an altitude of 400 feet over private property without the express permission of the owner of the private property; over public property without prior permission from the City; and "beyond the visual line of sight of the Operator." Singer sued the City, challenging those requirements of the Ordinance. He argued that those provisions of the Ordinance were preempted by federal law —namely FAA regulations, which extensively control much of the field of aviation. Newton defended the Ordinance, contending that it was not preempted by federal law because it fell "within an area of law that the FAA expressly carved out for local governments to regulate." Newton pointed to FAA regulations that provide that "[c]ertain legal aspects concerning small UAS [i.e., unmanned aircraft systems such as drones] use may be best addressed at the State or local level," including those related to "land use, zoning, privacy, trespass, and law enforcement operations." (See 81 Fed. Reg. 42063 § (III)(K)(6).) DECISION: Judgment for Singer. The United States District Court, D. Massachusetts, held that those sections of the City's Ordinance that were challenged by Singer conflicted with federal regulation of drones and therefore were preempted by FAA'regulations. In so holding, the court explained that the Supremacy Clause of the United States Constitution provides that "federal laws are supreme." (U.S. Const. art. VI, cl. 2.) Thus, said the court, federal laws preempt any conflicting state or local regulations. Where Congress has not expressly preempted an area of law, federal law will preempt state or local law where field or conflict preemption is evident. Field preemption, explained the court, "occurs where federal regulation is so pervasive and dominant that one can infer Congressional intent to occupy the field." Conflict preemption "arises when compliance with both state and federal regulations is impossible or if state law obstructs the objec- tives of the federal regulation." Here, the court determined that since the FAA explicitly contemplated state or local regulation of pilotless aircraft such as drones, the City's Ordinance was not preempted under the principles of field preemption. However, the court found that the sections of the City Ordinance that were challenged by Singer did conflict with FAA regulations and were therefore preempted under the principles of conflict preemption. Specifically, the court found that the FAA had explicitly indicated "its intent to be the exclusive regulatory authority for registration of pilotless aircraft." (See State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet) ("FAA UAS Fact Sheet"). Accordingly, the court concluded that the City's drone registration requirements were preempted. 10 © 2017 Thomson Reuters