Agenda - Planning Commission - 04/05/2018

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February 25, 2018 I Volume 12 I Issue 4 Zoning Bulletin The Board applied to the Supreme Judicial Court of Massachusetts for direct appellate review, which was granted. DECISION: Judgment of Land Court vacated and matter remanded. Abrogating (i.e., repealing) Hanlon v. Town of Sheffield, 89 Mass. App. Ct. 392, 50 N.E.3d 443 (2016) (abrogated by, Roma, 111, Ltd. v. Board of Appeals of Rockport, 478 Mass. 580, 88 N.E.3d 269 (2018)), the Supreme Judicial Court of Massachusetts held that cities and towns in Massachusetts may exercise their zoning authority to determine whether land in their communities may be used as a noncommercial private restricted landing area. In other words, the court held that the state aeronautics code—G. L. c. 90, § 39B—did not preempt local zoning regarding noncommercial private restricted landing areas. In reaching that conclusion, the court analyzed the statute. The court found that the first three paragraphs of § 39B required municipalities to apply to the Division for a certificate of approval before acquiring any property for "an airport or restricted landing area." Paragraph four provided that § 39B did "not apply to restricted landing areas for non-commercial private use," among other exceptions. The court found that to mean that "a private landowner who wishes to establish a noncommercial private restricted landing area does not need prior [D]ivision approval; the landowner simply needs to inform the [D]ivision in writing of its establishment, and ensure that it is not built or, maintained in a manner that would endanger the public safety." The court found that paragraph five allowed municipalities to enact rules and regulations governing "the use and operation of an aircraft at an airport or restricted land- ing area," but such rules and regulations were only effective if approved by the Division. Here, the Board had argued that since the fourth paragraph declared that § 39B did not apply to restricted landing areas designed for noncommercial private use, the fifth paragraph requiring Division approval of municipal rules and regulations on restricted areas did not apply to noncommercial private restricted landing areas. The Supreme Judicial Court agreed with the Board. In agreeing, the court acknowledged that the "use and operation of aircraft" was governed by § 39B, but emphasized that the use of land, on the other hand, was traditionally regulated by municipalities under their zoning authority. Accordingly, concluded the court, "regardless of whether § 39B is the sole source of a city or town's authority to regulate the 'use and operation of aircraft,' it plainly is not the source of a city or town's authority to regulate the use of land." Roma had contended that, nevertheless, unless approved in advance by the Division, the Town's zoning bylaw that prohibited the use of land to establish a noncommercial private restricted landing area was preempted by the state aeronautics code. Roma argued that a clear intent to preempt such local zon- ing enactments should be inferred "to prevent frustration of the legislative purpose of the aeronautics code." The court disagreed with Roma. The court explained both federal and state preemption analysis. Focusing on state law preemption, the court said that "a local regulation will not be invalidated unless the court finds a `sharp conflict' 4 © 2018 Thomson Reuters