On May 13, 2016, the Appeals Court issued its decision in Hanlon v. Town of Sheffield, 89 Mass. App. Ct. 392 (2016), wherein it concluded that in order to regulate "the use and operation of aircraft or [an] airport or restricted landing area" for both commercial and noncommercial private purposes, the Town of Sheffield was required, first, to seek and obtain approval of such regulations from the Aeronautics Division of the Massachusetts Department of Transportation (the "Aeronautics Division"). The decision gives clarity to an awkwardly framed statute, and fresh hope to aeronautics enthusiasts across the Commonwealth for the establishment of private landing areas for their aircraft. It will also cause headaches for cities and towns around the Commonwealth because their regulatory authority over the use and operation of aircraft or landing areas in their communities is now entirely subject to review and approval by the Aeronautics Division. Municipal regulation, absent such pre-approval, is void.
In Hanlon, the Plaintiff John Hanlon owned approximately thirty-eight acres of land in Sheffield, MA, zoned in the Rural District under the Sheffield Zoning Bylaw, and which was improved with single-family residence and various accessory structures. Since at least 2006, Hanlon mowed an 80 x 1,250 foot area in one of his hayfields to create a makeshift airstrip for his personal airplanes. A portion of Hanlon's property was also registered with the Federal Aviation Administration as a helipad. That helipad was registered, too, with the Aeronautics Division as a non-commercial private restricted landing area (a "NCPRLA"). However, Hanlon had never sought nor received any permits or other permission from Sheffield for this aeronautic use of his property.
In November 2011, the Sheffield Building Inspector issued Hanlon a cease and desist order, asserting that his aeronautic use was not allowed under the Zoning Bylaw. The Zoning Bylaw in Sheffield, like so many in Massachusetts, is "restrictive"; that is, it acts to prohibit any uses that are not specifically enumerated therein as allowed or otherwise permitted. The Sheffield Zoning Board of Appeals upheld the cease and desist order. Hanlon then appealed to the Land Court.
On summary judgment in the Land Court, Hanlon argued that Sheffield cannot enforce any rules or regulations regarding aeronautics because G.L. c. 90, § 39B, ¶ 5 requires that any such regulation must be approved by the Aeronautics Division before it can be put into effect. Paragraph 5 states
"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 by-laws shall be submitted to the commission and shall not take effect until approved by the commission."
Although this paragraph appears straightforward, it is complicated by the preceding Paragraph 4, which states, in relevant part "[t]his section shall not apply to restricted landing areas designed for non-commercial private use..." Reading these paragraphs together (along with other attendant statute provision and administrative regulations), the Land Court found that the phrase "this section" in Paragraph 4 meant that Paragraph 4 applied to every paragraph in §39B, including Paragraph 5, which was added to the statute nearly forty years after it was first enacted. As such, the Land Court ruled that the Aeronautics Division's "mandate explicitly excludes regulation by the [Aeronautics Division] of [NCPRLA's]", as set forth in the "plain language" of Paragraph 4; thus, upholding the decision of the Zoning Board.
The Appeals Court was less certain about the clarity and "plain language" of §39B, stating "[t]he application of the fourth paragraph to the fifth paragraph of §39B creates a serious incongruity." Moreover, the Appeals Court observed that were it to apply the Paragraph 4's exemption provision to Paragraph 5, it would "eliminate the only statutory basis for a town's regulation of private noncommercial landing areas." That is, the Appeals Court realized that the Land Court only read-out a portion of Paragraph 5 - the Aeronautics Division's approval mechanism. However, if Paragraph 4 operated as the Land Court found, then no portion of Paragraph 5 could survive in regards to noncommercial landing areas; cities and town could not regulate them at all, because it is Paragraph 5 forms the basis for local regulation in the first place.
As such, employing seldom used canons of statutory construction ("[o]n the infrequent occasions when we are presented with this level of statutory incongruity, our cases instruct 'that we should not accept the literal meaning of the words of a statute without regard for that statute's purpose and history.'"), the Appeals Court reversed the Land Court, holding:
"we interpret the word 'section' in the fourth paragraph of G.L. c. 90, § 39B, to refer to those provisions of the § 39B in effect at the time the fourth paragraph was added to the statute in 1946, but not to the fifth paragraph, here at issue, which was added to the statute in 1985, almost four decades later. As a result, any part of § 3.1 of the town zoning by-law that purports to regulate 'the use and operation of aircraft on [an] airport or restricted landing area' cannot take effect until 'submitted to the [division] and ... until approved by the [division].'"
Although this language may sound innocuous, it is like a jet engine blast. Now, cities and towns across Massachusetts have no authority to regulate any aeronautics use on a private landing area without both, enacting specific bylaw provisions regulating such use and then having those proposed regulations approved by the Aeronautics Division for approval. And since the mandate of the Aeronautics Division involves the "general supervision and control over aeronautics" in the Commonwealth including "for the purpose of developing and promoting aeronautics within the commonwealth..." (emphasis added) it appears that the ability to blanket-ban heliports and landing areas is a thing of the past.
From the aeronautics enthusiasts' perspective, the Hanlon decision finally brings much needed order to and relief from decades of wildly inconsistent local regulation, regularly consisting of complete prohibitions. A private airplane or helicopter owner, who simply wished to land at his/her property could be completely blindsided, as Mr. Hanlon was, by local authorities years after the activity commenced, even when in compliance with all FAA and Aeronautics Division regulations. A simple abutter complaint could, and often did, ground perfectly safe and unobtrusive flight activities, based on nothing more than a "restrictive" zoning bylaw. No longer will a pilot be faced with such uncertainty. This may be the beginning of a golden age in Massachusetts aeronautics.
Written by Robert K. Hopkins, Esq. on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2014 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.