August 9, 2018

Illinois Legislature Pre-empts Municipal Authority to Regulate Drones

Holland & Knight Alert
Andrew N. Fiske

Effective immediately, the Illinois General Assembly has pre-empted all Illinois municipalities other than Chicago, including home rule municipalities, from regulating "unmanned aircraft systems," commonly referred to as "drones." Going forward, the law prohibits municipalities from adopting ordinances or resolutions regulating drones, and any existing municipal regulations outside of Chicago have been deemed unenforceable.

On Aug. 3, 2018, Gov. Bruce Rauner signed Public Act 100-0735 (the Act), which takes immediate effect and amends the Illinois Aeronautics Act to preclude Illinois municipalities with a population of less than 1 million from enacting "an ordinance or resolution to regulate unmanned aircraft systems." 620 ILCS 5/42.1(b). This means that all Illinois municipalities other than Chicago are precluded from regulating "unmanned aircraft systems," which the Act defines as "an unmanned aircraft and its associated elements, including communication links and the components that control the unmanned aircraft, that are required for the safe and efficient operation of the unmanned aircraft in the national airspace system." 620 ILCS 5/42.1(a).

The Act's apparent intent is to prevent a hodgepodge of conflicting municipal drone regulations across the state. The Act empowers the Division of Aeronautics of the Illinois Department of Transportation to "adopt rules that it finds appropriate to address the safe and legal operation of unmanned aircraft systems in this State, so that those engaged in the operation of unmanned aircraft systems may so engage with the least possible restriction, consistent with their safety and with the safety and the rights of others, and in compliance with federal rules and regulations." 620 ILCS 5/42.1(d). No rulemaking has been adopted to date, but existing Illinois statutes regulating the use of drones, including the Freedom from Drone Surveillance Act and certain restrictions in the Illinois Criminal Code, remain in effect.

Importantly, the Act does not entirely preclude municipalities from regulating the impacts of drones. The Act expressly provides that "nothing in this [Act] "shall infringe or impede any current right or remedy available under existing State law." 620 ILCS 5/42.1(c). The intent and purpose of this provision is unclear, and the Act does not specify any particular "rights" and remedies." However, this provision at least suggests that municipalities may retain a path to mitigate the negative impacts of certain uses of unmanned aircraft systems by seeking relief under existing remedies such as actions for nuisance, trespass, disorderly conduct or similar violations. It is possible that future rulemaking from the Division of Aeronautics may clarify the intended scope of this provision. For the moment, we recommend that all Illinois municipalities consult with their legal counsel before taking any action relating to the use of drones.

Holland & Knight will continue to monitor this situation and other potential legislation concerning drones, and the firm's Illinois Land Use and Local Government Team stands ready to assist our clients in complying with the Act's requirements.

  

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.


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