Roma, III, Ltd. v. Board of Appeals of Rockport

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SJC-12278
ROMA, III, LTD. vs. BOARD OF APPEALS OF ROCKPORT.
Suffolk. September 6, 2017. - January 8, 2018.
Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker,
JJ.
Municipal Corporations, By-laws and ordinances. Zoning,
Validity of by-law or ordinance, Private landing area.
Federal Preemption.
Civil action commenced in the Land Court Department on
March 12, 2015.
The case was heard by Robert B. Foster, J., on motions for
summary judgment.
The Supreme Judicial Court granted an application for
direct appellate review.
Jackie Cowin for the defendant.
Nicholas Preston Shapiro (Robert K. Hopkins also present)
for the plaintiff.
Maura Healy, Attorney General, & Elizabeth N. Dewar, State
Solicitor, for division of aeronautics of the Department of
Transportation, amicus curiae, submitted a brief.
GANTS, C.J. A judge of the Land Court barred the town of
Rockport (town) from enforcing a zoning bylaw that prohibited
2
the use of land for a private heliport without some form of
approval, variance, or special permit because the bylaw had not
been approved by the division of aeronautics of the Department
of Transportation (division). The issue on appeal is whether
cities and towns may exercise their zoning authority to
determine whether land in their communities may be used as a
noncommercial private restricted landing area, here a heliport,
or whether they may do so only with the approval of the division
because the exercise of such zoning authority is preempted by
the State's aeronautics statutes, G. L. c. 90, §§ 35-52
(aeronautics code). We hold that there is no clear legislative
intent to preempt local zoning enactments with respect to
noncommercial private restricted landing areas, and that a city
or town does not need the prior approval of the division to
enforce a zoning bylaw that requires some form of approval,
variance, or special permit for land to be used as a private
heliport.1
Background. Roma, III, Ltd. (plaintiff), is the owner of
1.62 acres of oceanfront property in Rockport (property). The
property, improved by a single-family residence, is located in
1
We acknowledge the amicus brief submitted by the division
of aeronautics of the Department of Transportation (division).
We also note that, although G. L. c. 90, §§ 35-52 (aeronautics
code), makes reference to the "commission," the Transportation
Reform Act of 2009, St. 2009, c. 25, § 150 (4), transferred the
powers and duties of the former aeronautics commission to the
division.
3
what is classified as a residential A zoning district.
Ron Roma (Roma) is licensed as a helicopter pilot and
regularly uses the helicopter he owns to travel to his various
family homes, business engagements, and other activities. Roma
does not operate his helicopter for any commercial purpose. In
September, 2013, following Roma's request for a determination of
airspace suitability for a private helicopter landing area on
the property, the Federal Aviation Administration recognized the
property as a licensed private use heliport. Roma also received
approval following an airspace review from the division. The
heliport on the property is a flat section of lawn near the
ocean with a windsock installed to indicate the direction of the
wind. Roma stores his helicopter in a hangar located at the
Beverly Airport.
On November 14, 2014, Roma flew his helicopter to the
property. Later that month, the town building inspector issued
an enforcement order stating that "a heliport is not allowed,
either as a principal use of the property or an accessory use,
in any zoning district in the [t]own," and that the use of the
property for the landing of a helicopter is in violation of the
town's bylaw. The town building inspector ordered "that the
landing of helicopters on the property be stopped immediately"
and that the "[f]ailure to comply with this order may result in
fines of up to $300 per day."
4
The plaintiff filed an appeal from the enforcement order to
the board of appeals of Rockport (board). After a public
hearing, the board voted unanimously to deny the appeal. It
later issued a written decision noting that, under § I.B of the
town zoning bylaw, uses that are not expressly permitted are
deemed prohibited. That section states that "[n]o parcel of
land in any district shall be used for any purpose other than
those authorized for the district in which it is located." The
board found that, because neither the table of permitted uses in
§ III.B of the bylaw nor any other section of the bylaw
authorizes the use of land for a heliport, the private heliport
on the plaintiff's land was not permitted. Nor, the board
concluded, is the heliport allowed as a "customarily incidental"
accessory use or as an accessory use normally associated with a
one-family detached dwelling that is not detrimental to a
residential neighborhood. Consequently, the heliport would
require "some form of approval, variance and/or special permit"
after a separate hearing. The board found that "[h]elicopter
landings in a dense[,] village-style neighborhood are neither a
minor nor an insignificant event" and that "[t]he vibration and
noise resounding in this neighborhood[,] even when an over-ocean
approach path would be utilized would, in the judgment of this
[b]oard, be detrimental."
The plaintiff filed a timely complaint appealing from the
5
board's decision to the Land Court, followed by two amended
complaints, and the parties thereafter cross-moved for summary
judgment. The judge concluded that he was "constrained to
apply" the Appeals Court's holding in Hanlon v. Sheffield, 89
Mass. App. Ct. 392 (2016), which interpreted G. L. c. 90, § 39B,
to indicate that a town may not enforce a zoning bylaw that
would prohibit a private landowner from creating a noncommercial
private restricted landing area on his or her property, unless
the relevant bylaw had been approved by the division.2 Because
the town zoning bylaw had not been approved by the division, the
judge granted summary judgment to the plaintiff.3 We granted the
board's application for direct appellate review.
Discussion. Because the judge concluded that his decision
was dictated by the controlling authority in Hanlon, which
interpreted § 39B, we begin by discussing that statute. Section
39B, as enacted in 1946, consisted of what currently comprises
the first, third, fourth, and sixth paragraphs of the statute,
followed shortly thereafter by the insertion of the second
paragraph in 1948. In essence, as relevant here, the first
through third paragraphs provide that, before a city or town
2
The judge noted that the decision in Hanlon v. Sheffield,
89 Mass. App. Ct. 392 (2016), "may merit revisiting."
3
Because he granted the motion for summary judgment filed
by Roma, III, Ltd. (plaintiff), based on the holding in Hanlon,
the judge did not reach the other claims advanced by the
plaintiff.
6
acquires any property to construct, enlarge, or improve "an
airport[4] or restricted landing area,"5 it must first apply to
the division for a certificate of approval of the site.
However, the fourth paragraph of § 39B provides:
"This section shall not apply to restricted landing
areas designed for non-commercial private use, nor to any
airport, restricted landing area or other air navigation
facility owned or operated within the commonwealth by the
federal government; provided, that each person[6]
constructing or maintaining a restricted landing area for
non-commercial private use shall so inform the [division]
in writing; and provided, further, that such person shall
construct and maintain said restricted landing area in such
manner as shall not endanger the public safety."
As a result of the fourth paragraph, a private landowner who
wishes to establish a noncommercial private restricted landing
area does not need prior division approval; the landowner simply
needs to inform the division in writing of its establishment,
4
An "[a]irport" is defined as "any area of land or water
other than a restricted landing area, which is used, or intended
for use, for the landing and take-off of aircraft, and any
appurtenant areas which are used, or intended for use, for
airport buildings or other airport facilities or rights-of-way,
together with all airport buildings and facilities located
thereon." G. L. c. 90, § 35 (e).
5
A "[r]estricted landing area" is defined as "any area of
land or water other than an airport which is used, or is made
available, for the landing and take-off of aircraft; provided,
that the use of such an area may be restricted from time to time
by the [division]." G. L. c. 90, § 35 (f).
6
A "[p]erson" is defined as "any individual, firm,
partnership, corporation, company, association, joint stock
association; and includes any trustee, receiver, assignee or
other similar representative thereof." G. L. c. 90, § 35 (o).
This definition excludes cities, towns, and other government
entities.
7
and ensure that it is not built or maintained in a manner that
would endanger the public safety.
In 1985, § 39B was amended to add a fifth paragraph, which
provides:
"A city or town in which is situated the whole or any
portion of an airport or restricted landing area owned by a
person may, as to so much thereof as is located within its
boundaries, make and enforce rules and regulations relative
to the use and operation of aircraft on said airport or
restricted landing area. Such rules and regulations,
ordinances or [bylaws] shall be submitted to the [division]
and shall not take effect until approved by the
[division]."
Under this provision, a city or town may enact rules and
regulations governing "the use and operation of aircraft" at an
airport or restricted landing area, but these rules and
regulations cannot become effective until the division has
approved them. On its face, the fifth paragraph applies to all
restricted landing areas; unlike the fourth paragraph, it is not
limited to noncommercial private restricted landing areas.
However, because the fourth paragraph declares that "[§ 39B]
shall not apply to restricted landing areas designed for non-
commercial private use," the defendants in Hanlon and the board
here contended that the language of the fifth paragraph that
requires division approval of all "rules and regulations
relative to the use and operation of aircraft on said . . .
restricted landing area" does not apply to noncommercial private
restricted landing areas.
8
The Appeals Court in Hanlon, 89 Mass. App. Ct. at 396-397,
rejected this argument, interpreting § 39B to require prior
division approval before any city or town regulation "relative
to the use and operation of aircraft" on a noncommercial private
restricted landing area becomes effective. The Appeals Court
reasoned that the sole source of a town's authority to regulate
the use and operation of aircraft derives from the fifth
paragraph of § 39B; consequently, if the fourth paragraph
eliminated this authority with respect to noncommercial private
restricted landing areas, the town would have no authority to
regulate the use and operation of aircraft in these areas. Id.
at 395. According to the Appeals Court, its decision declining
to interpret the fourth paragraph as removing this authority
conserved the authority granted to the town under the fifth
paragraph by allowing it to regulate the use and operation of
aircraft in noncommercial private restricted landing areas,
albeit subjecting that regulation to prior division approval.
Id.
The flaw in this reasoning is that, under the zoning bylaw
in the town of Sheffield, land may not be used as a
noncommercial private restricted landing area without specific
zoning board approval in the form of a variance or special
permit, which Hanlon had not obtained. The relevant question in
Hanlon, therefore, was not whether a city or town may regulate
9
"the use and operation of aircraft" on what was already a
noncommercial private restricted landing area. Rather, the
relevant question was whether a city or town may regulate the
use of land within its community through a zoning bylaw, and
therefore determine whether a private landowner may use his or
her land to establish a noncommercial private restricted landing
area. In short, what was at issue in Hanlon was not the "use
and operation of aircraft," the regulation of which was governed
by § 39B, but the use of land, the regulation of which has
traditionally been within the domain of cities and towns through
their zoning authority. Accordingly, 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.7
The Legislature has long bestowed broad authority on cities
and towns to regulate the use of land through various zoning
enactments. See generally M. Bobrowski, Handbook of
Massachusetts Land Use and Planning Law § 2.03 (3d ed. 2011).
Article 89 of the Amendments to the Massachusetts Constitution,
ratified in 1966 and known as the Home Rule Amendment, provides
7
We note that the town of Sheffield did not advance any
arguments on appeal in Hanlon and that no party in that case
argued that the town's authority to determine whether land may
be used as a noncommercial private restricted landing area
rested within its traditional zoning authority.
10
that "[a]ny city or town may, by the adoption, amendment, or
repeal of local ordinances or by-laws, exercise any power or
function which the general court has power to confer upon it,
which is not inconsistent with the constitution or laws enacted
by the general court." Art. 89, § 6, of the Amendments to the
Massachusetts Constitution. See G. L. c. 43B, § 13 (Home Rules
Procedures Act, which implements Home Rule Amendment). See also
Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass.
339, 359 (1973) ("zoning power is one of a city's or town's
independent municipal powers included in [the Home Rule
Amendment's] broad grant of powers to adopt ordinances or by-
laws for the protection of the public health, safety, and
general welfare"). The authority of cities and towns to enact
zoning bylaws, however, predates the adoption of the Home Rule
Amendment. In 1954, the Legislature enacted the Zoning Enabling
Act, which, among other things, granted cities and towns the
power to restrict the use, location, and construction of
buildings through their enactment of ordinances or bylaws. See
G. L. c. 40A, §§ 1-22, inserted by St. 1954, c. 368, § 2. Under
G. L. c. 40A §§ 1-17 (Zoning Act), which replaced its
predecessor in 1975, "[a] municipality may enact zoning
provisions to deal with a variety of matters, including fire
safety; density of population and intensity of use; the adequate
provision of water, water supply, and sewerage; the conservation
11
of natural resources; and the prevention of pollution of the
environment." Sturges v. Chilmark, 380 Mass. 246, 253 (1980).
See St. 1975, c. 808, § 2A. "From the wide scope of the
purposes of [t]he Zoning Act, it is apparent that the
Legislature intended to permit cities and towns to adopt any and
all zoning provisions which are constitutionally permissible,
subject, however, to limitations expressly stated in that act
(see, e.g., G. L. c. 40A, § 3) or in other controlling
legislation." Sturges, supra. In fact, the breadth of the
zoning power is reflected in the definition of the term
"[z]oning" in the Zoning Act: "ordinances and by-laws, adopted
by cities and towns to regulate the use of land, buildings and
structures to the full extent of the independent constitutional
powers of cities and towns to protect the health, safety and
general welfare of their present and future inhabitants." G. L.
c. 40A, § 1A.
We have previously recognized the authority of a town,
through its zoning bylaw, to prohibit a noncommercial private
restricted landing area, albeit in a case where the division was
not a party and where the issue of preemption was not raised.
In Harvard v. Maxant, 360 Mass. 432, 433, 435-436, 440 (1971),
we affirmed a town's application of its local zoning bylaw to
prohibit a landowner from using his property in a residential-
agricultural district as a private landing strip for aircraft
12
owned by him and his son. We concluded that a private landing
strip, if considered the primary use of the land, was not a
permissible use in that zoning district, id. at 436, and was not
"customarily incidental" to the permissible residential use.
Id. at 437-440.
The plaintiff contends, however, that, unless approved in
advance by the division, the town's zoning bylaw that prohibits
the use of land to establish a noncommercial private restricted
landing area is barred by State preemption doctrine because the
Legislature, in enacting the statutes that comprise the
aeronautics code, G. L. c. 90, §§ 35-52, intended to preclude
this exercise of local zoning power. Although the plaintiff
does not contend that Federal preemption bars enforcement of the
town's bylaw, our preemption analysis begins there because it is
important to recognize what spheres in the realm of aeronautics
are, and are not, exclusively governed by Federal regulation.
1. Federal preemption. The doctrine of preemption
originates from the supremacy clause of the United States
Constitution, which provides that "[t]his Constitution, and the
Laws of the United States which shall be made in Pursuance
thereof . . . shall be the supreme Law of the Land . . . ."
U.S. Const., art. VI, cl. 2. See Chadwick v. Board of
Registration in Dentistry, 461 Mass. 77, 84 (2011). "A Federal
statute may preempt State law when it explicitly or by
13
implication defines such an intent, or when a State statute
actually conflicts with Federal law or stands as an obstacle to
the accomplishment of Federal objectives." Boston v.
Commonwealth Employment Relations Bd., 453 Mass. 389, 396
(2009). See Hoagland v. Clear Lake, Ind., 415 F.3d 693, 696
(7th Cir. 2005), cert. denied, 547 U.S. 1004 (2006) (identifying
"three ways in which [F]ederal law can preempt [S]tate and local
law: express preemption, conflict [or implied] preemption, and
field [or complete] preemption"). The critical question in
preemption analysis is whether Congress intended Federal law to
supersede State law, see Bay Colony R.R. Corp. v. Yarmouth, 470
Mass. 515, 518 (2015), but unless Congress's intent to do so is
clearly manifested, we do not presume that Congress intended to
displace State law on a particular subject. See Boston, supra.
Under the Federal Aviation Act of 1958 (FAA), 49 U.S.C.
§§ 40101 et seq., "[t]he United States Government has exclusive
sovereignty of airspace of the United States." 49 U.S.C.
§ 40103(a)(1). "The Administrator of the Federal Aviation
Administration shall develop plans and policy for the use of the
navigable airspace and assign by regulation or order the use of
the airspace necessary to ensure the safety of aircraft and the
efficient use of airspace." 49 U.S.C. § 40103(b)(1). Federal
courts have found preemption in matters pertaining to aircraft
noise and aircraft safety, concluding that Federal regulation is
14
too pervasive in these areas to permit regulation at the State
or local level. See, e.g., Burbank v. Lockheed Air Terminal
Inc., 411 U.S. 624, 633 (1973); Abdullah v. American Airlines,
Inc., 181 F.3d 363, 367 (3d Cir. 1999); French v. Pan Am
Express, Inc., 869 F.2d 1, 6-7 (1st Cir. 1989); Pirolo v.
Clearwater, 711 F.2d 1006, 1009-1010 (11th Cir. 1983); San Diego
Unified Port Dist. v. Gianturco, 651 F.2d 1306, 1316 (9th Cir.
1981), cert. denied sub nom. Department of Transp. v. San Diego
Unified Port Dist., 455 U.S. 1000 (1982).
Federal case law, however, has distinguished the preempted
regulation of flight operations from the permitted regulation of
aircraft landing sites. In Gustafson v. Lake Angelus, 76 F.3d
778, 783 (6th Cir.), cert. denied, 519 U.S. 823 (1996), the
court upheld a municipal ordinance prohibiting seaplanes from
landing on a lake, reasoning that Federal regulation of airspace
and the regulation of aircraft in flight is distinct from the
regulation of the designation of aircraft landing sites, "which
involves local control of land . . . use." Similarly, in Condor
Corp. v. St. Paul, 912 F.2d 215, 219 (8th Cir. 1990), the court
upheld a municipal land use decision denying a permit for the
operation of a heliport, concluding that there was "no conflict
between a city's regulatory power over land use, and the
[F]ederal regulation of airspace." See Hoagland, 415 F.3d at
696-697 (town zoning ordinance designating heliport as special
15
use requiring special permission of zoning board of appeals not
preempted by FAA); Faux-Burhans v. County Comm'rs of Frederick
County, 674 F. Supp. 1172, 1174 (D. Md. 1987), aff'd, 859 F.2d
149 (4th Cir. 1988), cert. denied, 488 U.S. 1042 (1989) ("no
[F]ederal law gives a citizen the right to operate an airport
free of local zoning control"). Within the Federal aviation
framework, land use matters are "intrinsically local,"
Gustafson, 76 F.3d at 784, and the zoning of a heliport "remains
an issue for local control." Hoagland, 415 F.3d at 697.
2. State preemption. State preemption analysis is similar
to Federal preemption analysis in that we determine whether the
Legislature intended to preclude local action, recognizing that
"[t]he legislative intent to preclude local action must be
clear" (citation omitted). Wendell v. Attorney Gen., 394 Mass.
518, 523 (1985). See Bloom v. Worcester, 363 Mass. 136, 155
(1973) (in determining under Home Rule Amendment whether local
ordinance or bylaw is "not inconsistent" with any statute, "the
same process of ascertaining legislative intent must be
performed as has been performed in the Federal preemption
cases"). Legislative intent may be "express or inferred," that
is, "local action is precluded either where the 'Legislature has
made an explicit indication of its intention in this respect,'
or where 'the purpose of State legislation would be frustrated
[by a local enactment] so as to warrant an inference that the
16
Legislature intended to preempt the field.'" St. George Greek
Orthodox Cathedral of W. Mass., Inc. v. Fire Dep't of
Springfield, 462 Mass. 120, 126 (2012), quoting Wendell, supra
at 524. "[A] local regulation will not be invalidated unless
the court finds a 'sharp conflict' between the local and State
provisions." Doe v. Lynn, 472 Mass. 521, 526 (2015), quoting
Easthampton Sav. Bank v. Springfield, 470 Mass. 284, 289 (2014).
The plaintiff does not contend that the Legislature, in
enacting the aeronautics code, explicitly indicated its intent
to preempt local zoning enactments concerning noncommercial
private restricted landing areas.8 Instead, the plaintiff argues
that we should infer a clear intent to preempt such local zoning
enactments to prevent frustration of the legislative purpose of
the aeronautics code, except where a city or town obtains
division approval of the enactment. Consequently, we must
determine whether "the local enactment prevents the achievement
of a clearly identifiable [legislative] purpose." Wendell, 394
Mass. at 524. Where there is no express legislative intent to
preempt, "[i]f . . . the State legislative purpose can be
achieved in the face of a local by-law on the same subject, the
8
As an example of explicit or express preemption, see 49
U.S.C. § 41713(b)(1) ("Except as provided in this subsection, a
State, political subdivision of a State, or political authority
of at least [two] States may not enact or enforce a law,
regulation, or other provision having the force and effect of
law related to a price, route, or service of an air carrier that
may provide air transportation under this subpart").
17
local by-law is not [held to be] inconsistent with the State
legislation." Id.
Under the aeronautics code, the division has "general
supervision and control over aeronautics." G. L. c. 90, § 39.
"Aeronautics" is defined to include, among other things,
"transportation by aircraft; the operation . . . of aircraft
. . . ; [and] the design, establishment, construction,
extension, operation, improvement, repair or maintenance of
airports, restricted landing areas or other air navigation
facilities." G. L. c. 90, § 35 (a). The purpose of the
division is to "foster air commerce and private flying within
the [C]ommonwealth." G. L. c. 90, § 40. To advance this
purpose, the division, among other things, "shall . . .
encourage the establishment of airports and air navigation
facilities." Id. The division is required to "prepare and
revise from time to time a plan for the development of airports
and air navigation facilities in the [C]ommonwealth." G. L.
c. 90, § 39A. "Such plan shall specify, in terms of general
location and type of development, the projects considered by the
[division] to be necessary to provide a system of airports
adequate to anticipate and meet the needs of civil aeronautics
within the [C]ommonwealth." Id. The division, subject to
appropriation by the Legislature, also may "construct, establish
and maintain air navigational facilities within the
18
[C]ommonwealth," and may take, by eminent domain, the property
needed to do so. Id.
Section 39B provides that no city or town may acquire
property for the purpose of constructing or enlarging an airport
or restricted landing area without the division's approval of
the site. See G. L. c. 90, § 39B. However, § 39B also provides
that no such approval is required where a private landowner
seeks to create a noncommercial private restricted landing area.
Id. All that is required is that the person constructing or
maintaining this type of landing area notify the division in
writing and operate the landing area in a manner that does not
jeopardize the public safety. Id. Under the aeronautics code,
as long as safety is not threatened, it is inconsequential
whether the noncommercial private restricted landing area is
located in a densely populated residential neighborhood, or
whether noise, vibrations, fumes, dust, and wind arising from a
heliport will interfere with the neighbors' enjoyment of their
property. Consequently, if local zoning bylaws are preempted by
the aeronautics code, a city or town will be unable to protect
its residents from any of the potential harms and deleterious
consequences that may arise from the location of a noncommercial
private restricted landing area, unless the division agrees to
the proposed restriction. The plaintiff (and the division in
its amicus brief) contend that, if cities and towns are allowed
19
without division approval to enact zoning bylaws that will
prevent private landowners from establishing noncommercial
private restricted heliports or landing areas on their property,
the division's legislative mandate, under G. L. c. 90, § 40, to
"foster . . . private flying within the [C]ommonwealth" will be
so frustrated that we can infer a legislative intent to prohibit
such zoning restrictions. We are not persuaded by this argument
for two reasons.
First, the legislative purpose of "foster[ing] . . .
private flying" does not suggest a legislative intent to
encourage the development of private heliports and landing areas
so that persons may land their helicopters and aircraft on their
own private property. The Legislature, in directing the
division to prepare and revise plans for the development of
airports and air navigation facilities in the Commonwealth,
specifically required that the plan focus on projects needed "to
provide a system of airports" adequate to meet the needs of
civil aeronautics. See G. L. c. 90, § 39A. The Legislature did
not direct the division to focus on providing a system of
noncommercial private restricted landing areas to meet those
needs. This suggests that the Legislature recognized that
private flying may be effectively fostered through the
construction and expansion of airports and, perhaps, commercial
restricted landing areas; the record is devoid of any suggestion
20
that the Legislature considered noncommercial private restricted
landing areas to be necessary, or even central, to the
division's mission of fostering private flying. Therefore, even
if every city and town were to enact zoning bylaws that would
prohibit the use of land for noncommercial private restricted
landing areas without some form of approval, variance, or
special permit, and even if this were to cause some persons to
cease private flying if they cannot land their helicopter or
aircraft on their own property, this consequence is insufficient
to warrant a finding of preemption where it would not
significantly impair the State's legislative purpose of
fostering private flying. See Bloom, 363 Mass. at 156
(existence of legislation on subject "is not necessarily a bar
to the enactment of local ordinances and by-laws" affecting that
subject if State legislative purpose can still be achieved).
Second, in determining whether the Legislature intended to
preempt local ordinances and bylaws, it is appropriate to
consider whether the subject matter at issue has traditionally
been a matter of local regulation. See Easthampton Sav. Bank,
470 Mass. at 289, citing Wendell, 394 Mass. at 525. Where land
use regulation has long been recognized by the Legislature to be
a prerogative of local government, we will not infer that the
enactment of the aeronautics code reflects a clear legislative
intent to preempt all local zoning bylaws that might affect
21
noncommercial private restricted landing areas based on the risk
of frustrating the legislative purpose of fostering private
flying.
Nor are we persuaded that the Legislature, by granting the
division "general supervision and control over aeronautics,"
G. L. c. 90, § 39, intended to preempt all local land use
regulation that might affect the use of land for private
heliports. If local zoning authorities must depend on division
approval to protect their residents from the types of harm or
nuisances that might arise from the establishment of a
noncommercial private restricted landing area, cities and towns
will be unable to ensure that their residents will be adequately
protected from these harms and nuisances. If the Legislature
wishes to preempt local zoning regarding noncommercial private
restricted landing areas, it must provide a clearer indication
of such intent.9
Conclusion. For the reasons stated, the judgment below is
vacated and the matter is remanded to the Land Court for further
proceedings consistent with this opinion.
So ordered.
9
Nothing in this opinion is intended to disturb either the
notice and safety requirements for noncommercial private
restricted landing areas mandated under G. L. c. 90, § 39B,
fourth par., or the continuing authority of the division under
the aeronautics code over aircraft landing areas that do not
fall within the narrow definition of a noncommercial private
restricted landing area.