How Drones Will Affect Commercial Real Estate
Source: Nreionline.com, Dec 23, 2016,
By Justin X. Thompson and Garth
Bostic
Since their initial
use, small unmanned aircraft systems, or drones, have prompted controversy over privacy rights,
and even spurred state action to protect their citizens from prying, flying
eyes. But the current utilization of drones as surveillance tools pales in
comparison to the impact they may have on everyday society from another
standpoint.
Indeed, the greatest
impact that drones have may be on property rights.
Some
retailers have already announced plans for delivering shipments via drones
within the near future. At least one such retailer has stated that its planned
drone delivery service can be up and running as early as 2017. It is not too
difficult to envision a future where hundreds to thousands of drones fill city
skies with deliveries, drop packages off on the top of towers, form flight
paths to dense destinations and dramatically change the urban landscape as we
know it. A segment of the sky previously devoid of activity will suddenly
become filled with air traffic, forcing the question: who owns that airspace?
The prevailing law
on property owners’ airspace rights comes from the Supreme Court case of United
States v. Causby. In that case, the Court stated that landowners
own “at least” as much space as can be “used in connection with the land,”
including the airspace within the “immediate reaches above the land.” Causby stated that interference in a person’s
airspace could occur with “an intrusion so immediate and direct as to subtract
from the owner’s full enjoyment of the property.”
Just how far above a
person’s land air rights go and just how much of an intrusion constitutes an
“actionable interference” were questions the Court left unanswered. The Court’s
ambiguity can be forgiven, however, considering the case was decided in 1946.
Air traffic at that time was, for the most part, well beyond the “immediate
reaches” of private property.
Commercial drone use
has barely begun to reach its potential, which explains why this key air rights
question has so far remained largely academic. In the near future, the
proliferation of drone shipping is likely to bring continuous flights into the
airspace above private property. The question of who exactly owns that airspace
will be one that property owners, as well as commercial drone operators, will
want answered.
That the question
has not been a point of focus yet is hardly surprising. After all, an amateur
drone operator filming 100 feet above a single-family residence is less likely
to be seen as a Causby type of “intrusion” into that property
owner’s airspace than the consistent flight of drone shipments over the same
home as deliveries come into a neighborhood. If courts consider this kind of
flight to be a trespass into private airspace, a market for low altitude air
rights would likely come into existence. Operators may need to purchase
avigation easements over strategic properties to ensure that their drones will
not be trespassing when deliveries are made. It is not hard to envision a
situation in which speculators purchase air rights in certain areas to take
advantage of this possibility.
Drone operators and
property owners should also consider the potential for nuisance claims. Drones
carrying shipments will likely follow certain flight paths that maximize
efficiency and flow towards the areas with the highest amount of
orders—properties underneath these flight paths and near the takeoff and
landing points particularly will be subject to noise and visual impact unlike
any previously seen. These initial points, or “droneports,” could impact the
surrounding land and local land use laws in a manner similar to airports.
Because of the inherent limitations of drone shipments, droneports are likely
to be multi-modal: trucks, trains and other traditional shipping mechanisms
will bring in products from far-off warehouses, while drones will distribute
them quickly and locally once they arrive. Unlike traditional warehouses, which are located in
industrial areas often away from urban infill, droneports are likely to be
located within urban areas to
efficiently and effectively serve the local population. This proximity all but
ensures that their impact will be felt by the surrounding neighborhoods.
The prospect of such
a vast change in low altitude airspace in urban centers, while not yet a
reality, is far from fantasy. Current same-day delivery services can deliver
packages within hours by utilizing urban “fulfillment centers” that act as
small warehouses within cities. These centers could be converted to act as
launch ports for drones that promise delivery within minutes and have a
significant effect on the areas in which they are located.
While
companies move forward in research and development, regulations are inching along.
The Federal Aviation Administration (FAA) released rules in June of 2016 that
allowed for the commercial use of drones, but with restrictive limitations that
hinder any large-scale drone shipping program. For instance, drones must stay
within unaided sight at all times and can’t be flown over anyone not
participating in the flight operation.
Assuming the FAA
eventually catches up to the current technology, the impact of hundreds of
drones taking off and landing in a crowded metropolis will undoubtedly trigger
additional regulation. Building heights, take-off times and other local land
use measures used to curb the impact of traditional airports may be considered
by both local governments and the FAA in connection with drone deliveries. The
scope and impact of such land use measure and the as-yet-to-be resolved
airspace issues mentioned above remain key hurdles that must be cleared in
order for drone shipping to reach its potential.
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