My family was enjoying a sunny Southern California day in our new expansive backyard with a sparkling pool and secluded privacy when, all of a sudden, a drone hovered overhead. It appeared to be watching and taunting us as one of my sons-in-law made a lewd gesture skyward and we all yelled at it to go away.
I’m not a gun owner, but the feeling of having no control over the invasion of my property made me appreciate how someone (such as my older brother who does own guns) might feel compelled to shoot down the unmanned aircraft. How can such a trespass be allowed? As a property professor, the concept of owning the air rights above my property in addition to my surface rights seems to be debatably sacrosanct – cujus est solum ejus usque ad coelum – other than as limited by federal aviation requirements or other police power necessities.
Professor Troy A. Rule in his article Drone Zoning identifies the wide variety of complex regulatory challenges engendered by the increasing attractiveness of civilian drones. He addresses questions as to whether drone activity should be regulated at the state or local level rather than at the federal level and how municipal governments should develop drone policies for their communities.
In thinking of a title for this jot about Professor Rule’s thought-provoking article, I was reminded of the phrase “Zoning for Dollars” (a not-so-subtle take off of the 1970s television show Bowling for Dollars), which Jerold S. Kayden used to describe “incentive zoning.” With incentive zoning, municipalities grant developers the right to avoid certain zoning restrictions in return for the developer’s voluntary agreement to provide needed community infrastructure and amenities.1
Professor Rule explains how to design an efficient drone zoning law at the local level, and he provides charts to illustrate the use of principles of economics to develop these laws. For example, a cost-benefit analysis would show that “drone use should be legally permissible only when and where its net social benefits are greater than zero.” (P. 186.)
However, couldn’t a municipality permit drones where the net social benefits of the drone activity are less than zero so long as the person or company is willing to provide community benefits in the form of “incentive zoning” for drones? Such an approach could allow municipalities to “supply the flexibility and local participation needed to optimally balance drone use with landowner safety and privacy in communities” (P. 200), while at the same time obtaining community amenities to offset the social costs of permitting drones.
State and local governments need to be proactive nationally to ensure that they have a strong and unified voice as to the regulatory framework needed to control civilian drone use. As Professor Rule so crucially points out, the Federal Aviation Administration has, so far, chosen to regulate drones on its own instead of “actively inviting state and local governments to join in forming a coordinated drone regulatory system.” (P. 143.) Federal regulation is important for restricting drone activity near sensitive areas such as airports, military facilities, and higher-altitude airspace; managing nationwide drone registration programs; and establishing uniform drone manufacturing and performance standards.
Nevertheless, the potential for local impacts as well as national benefits makes drone regulation ripe for a combined regulation framework at the federal, state, and local levels. A similar longstanding debate about the division of authority among federal, state, and local governments over communications services has resulted in national regulation under the Federal Communications Commission with very limited state and local control. However, communication services, which are now wireless in many geographic areas, are not as locally intrusive as low-flying drones and may not serve as a viable model of federalism.2
Drone zoning is certainly a local function if viewed from a land use zoning model founded on the state’s delegation of its police power. Professor Rule’s writings on drones and local government should spur state and local action to address the increasing use of civilian drones in our communities.3
Other models of regulation should be considered in addition to local zoning, national preemptive authority, and common law actions such as nuisance and trespass. Perhaps we should restrict drones to overflight of public roads and highways to avoid trespass claims and maintain residential privacy? Individual, temporary permits could be granted to private owners wishing to fly drones over their own property for purposes such as wedding photos or real estate marketing videos.
This permitting method for individual flexibility is the same as Professor Rule’s suggestion for drone zoning exceptions in residential areas. Commercial operations may also consider granting easements over their private properties in exchange for payment by civilian drone users such as Amazon and the newly announced Google X.
Yes, property rules are ancient and convoluted at times, but they should be explored for purposes of regulating civilian drone use in the same way that they have been used for other new ideas and technologies such as intellectual property and “cyberspace.”
- See Jerold S. Kayden, Zoning for Dollars: New Rules for an Old Game? Comments on the Municipal Art Society and Nollan Cases, 39 Wash. U. J. Urb. & Contemp. L. 3 (1991).
- See, e.g., T. Randolph Beard et al., Developing a National Wireless Regulatory Framework: A Law and Economics Approach, 16 CommLaw Conspectus 391 (2008).
- See also Troy A. Rule, Airspace in an Age of Drones, 95 B.U. L. Rev. 155 (2015).