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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.
