Plaintiff John R. Hanlon, Jr., appealed from summary judgment entered in favor of the defendants, ruling that the town of Sheffield was authorized to regulate the plaintiff’s use of his property as a private noncommercial aircraft landing area notwithstanding the regulatory authority of the Massachusetts Department of Transportation aeronautics division. On his property, the plaintiff created a strip eighty feet wide by 1,250 feet long for takeoff and landing of airplanes and, since at least 2006, has operated aircraft from the property as a hobby. In 2006, the plaintiff registered the property with the Federal Aviation Administration as a helipad. Pursuant to G.L. c. 90, § 39B, he also registered the property as a noncommercial private restricted landing area (PRLA) with the division. However, he neither sought nor received any approval from the town with respect to the PRLA. Section 3.1 of the town zoning by-law provides that land may not be “used except as set forth in the … Table of Use Regulations.” The section further provides that “any … use of premises not herein expressly permitted is hereby prohibited.” Although “commercial airfield” was listed as a prohibited use in rural districts, the Table of Use Regulations contained no mention of noncommercial or private airfields.
The fifth paragraph of § 39B, inserted by St.1985, c. 30, requires that a municipality making any rule, regulation, ordinance or by-law “relative to the use and operation of aircraft on said airport or restricted landing area,” receive approval from the division prior to the rule’s taking effect. However, the fourth paragraph of § 39B, already in effect at the time the fifth paragraph was enacted, contains the following introductory clause: “This section shall not apply to restricted landing areas designed for non-commercial private use …” The court resolved this discrepancy by reading the word “section” in the fourth paragraph to apply to the preceding paragraphs, but not to the fifth paragraph. Thus, the word “section” in the fourth paragraph of G.L. c. 90, § 39B, referred 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, which was added to the statute in 1985, almost four decades later. As a result, the court held that any part of § 3.1 of the town zoning by-law that purported to regulate “the use and operation of aircraft on [an] airport or restricted landing area” could not take effect until “submitted to the division and … until approved by the division.”
Hanlon v. Town of Sheffield, 2016 WL 2758919 (MA App. 5/13/2016)