2016-07-22 / Front Page

Town looks to ground drones

By Wm. Duke Harrington Staff Writer

KENNEBUNK — If voters approve a new park ordinance now making the rounds here, the use of aerial drones in town would be banned from all beaches, as well as 19 public parks and open spaces.

However, whether the town has the power to regulate its skies remains an open question, as the Federal Aviation Administration has asserted it alone has jurisdiction over drones.

Town Manager Barry Tibbetts presented the new parks ordinance at the June 28 selectmen’s meeting, saying it was merely a consolidation of existing rules. Prior to the meeting, Tibbetts said it contained, “really, nothing new.”

“It’s more to be proactive and also to have a document that the police, who are trying to enforce various portions of our ordinances, can find it all in one spot,” Tibbetts told the board. “It’s also easier for the public to understand what’s allowed and not allowed in the parks.”

Among other things, the proposed ordinance bans people from being in the parks after dusk, except for specially permitted events. However, it does say local business employees can leave vehicles at Lower Village Park. Nighttime parking also is allowed at Parsons Field during snow-removal operations.

The ordinance also bans graffiti, picking flowers, the removal of trees and shrubs (even if dead), hunting and trapping, unleashed dogs and cats (unless under voice control), animal waste, all fires (except where cookout or camp fire facilities are provided, and then only under the “continuous care” of a “competent person”), plus tobacco, alcohol, camping, weapons of all kinds, fireworks, advertising, hawking and peddling, sound amplification, motorized vehicles (except in designated traffic areas) and, just to cover all the bases, disorderly conduct.

“Some of this stuff comes right out of state law,” Tibbetts said.

Violation of the rules could result in ejection from a park, a bill for the cost of repair for any damage done, and a fine set by selectmen.

After presenting a first draft of the proposal at the June 28 selectmen’s meeting, Tibbetts immediately suggested adding a ban on drones to the list of thou-shalt-nots.

“It doesn’t sound like it’s a real complicated thing, but if you have activities going on in the park and all of a sudden someone has a drone and the battery runs out or whatever, and it crashes down on somebody else, we ought to have some kind of policy on how to handle that,” he said.

Selectmen readily agreed and the ordinance came back at the July 12 meeting with the authorizing language appended. The updated version, subsequently sent to town attorney William Dale for review, included the allowance for employee parking in Lower Village Park, added at the suggestion of Selectman Deborah Beal, although Tibbetts had previously said nighttime parking should not be allowed without the addition of lighting.

The new version also struck out a ban on firearms.

“Under state law we are not allowed to regulate firearms in parks,” Tibbetts explained.

Under questioning from Selectman Shiloh Schulte, Tibbetts said the ordinance, including the ban on drones, would apply to public beaches as well as the enumerated parks and other public spaces. He promised those sites would be added in the final version returned from Dale.

Selectman Ed Karytko asked if the drone ban referred to launching drones, or if flyovers also were prohibited.

“Theoretically, a person could launch a drone from his or her home, fly it over Parsons Field, and then fly it back,” he said.

“Flying over wouldn’t be allowed either,” Tibbetts said.

Selectmen only meet once in July. Their next scheduled session is Aug. 9. On Monday, Town Clerk Merton Brown said selectmen would have to approve the parks ordinance at that meeting in order to meet other deadlines for making the Nov. 8 ballot. The new parks ordinance is only valid if approved by a majority of voters.

However, even if residents decide they do want to ban drones from most outdoor public spaces, the FAA might have something to say about that.

In December, at the close of a year that saw more than 700,000 aerial drones sold in the United States, the FAA issued a memo asserting its exclusive authority to regulate the skies.

“Navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system,” the FAA said at the time, warning against a “patchwork quilt of differing restrictions.”

The FAA noted it alone governs equipment and training, as well as all operation restrictions of drones, which it refers to as unmanned aircraft systems (UAS). In an accompanying fact sheet, the FAA said municipalities may regulate drones as part of local law enforcement activities, such as banning their use for voyeurism or hunting.

This past December, the FAA began requiring hobbyists to register drones weighing more than 0.55 pounds, about the time it also started to issue limited commercial licenses. On June 21, the agency finalized rules for operation of small drones weighing between 0.55 and 55 pounds. Those rules go into effect Aug. 29.

The new rules limit the use of aerial drones to daylight hours, a maximum of 400 feet above ground level, and within a “visual line of sight” of the remote operator.

“Small unmanned aircraft may not operate over any persons not directly participating in the operation, not under a covered structure, and not inside a covered stationary vehicle,” the new rules say.

The new rules also say drone operators must be at least 16 years old and “vetted by the Transportation Security Administration.” They also “must either hold a remote pilot airman certificate with a small UAS rating or be under the direct supervision of a person who does hold a remote pilot certificate.”

However, the new rules do not apply to model aircraft, defined in section 336 of Public Law 112-95 as flying systems “flown strictly for hobby or recreational use,” which are “operated in accordance with a community-based set of safety guidelines” and “in a manner that does not interfere with and gives way to any manned aircraft.”

Additionally, there may be wiggle room to exercise municipal authority, even above regulating use of drones considered to be toys.

In the December issue of the Maine Townsman, a publication of the Maine Municipal Association, Kelsey Wilcox Libby, an attorney with the Portland law firm Bernstein Shur, noted at least one case in which municipal jurisdiction was recognized. In the 1990 lawsuit Condor Corp. v City of St. Paul, the 8th Circuit Court of Appeals upheld a zoning regulation that made heliport operators obtain a conditional-use permit with a host of conditions attached. “We see no conflict between a city’s regulatory power over land use, and the federal regulation of air space,” the court wrote.

But Wilcox Libby also cautioned that local rules could fail before the U.S. Constitution and its First Amendment guarantee of freedom of speech. The courts have defined that protection to include the right to gather information, which means a “right to record,” she said.

“The right to record has been found to apply in situations where private citizens record police activity or other matters of public concern, and commentators have suggested that the right is likely applicable to private citizens’ use of drones equipped with video recording devices,” she wrote.

The MMA again addressed the issue in its May issue, in an article by communications director Eric Conrad, indicating the level of municipal heartburn over the issue.

Locally, Kennebunkport has recently grappled with how, and if, to regulate drone use at Goose Rocks Beach. Although Tibbetts reported no incidents in Kennebunk prompting a drive to limit drone use, several beachfront residents in Kennebunkport complained to selectmen of being spied on and, in at least one alleged case, actually chased, by drones.

In May and June, Kennebunkport selectmen weighed the issue at three consecutive meetings.

Although selectmen quickly ruled out adopting an ordinance banning drone use, due in part to uncertainty over FAA jurisdiction, an agreement was hammered out to post signs asking visitors to public portions of the beach to refrain from drone use.

Town Manager Laurie Smith also noted that, in the case of Goose Rocks Beach, ownership is “a checkerboard” of public and private interests, further complicating what the town can adopt as part of its Beach Use Agreement.

“We’re looking at 62 properties that would be covered by this [agreement], and the rest would not,” Selectman Stuart Barwise said. “To me the issue with the beach premises is that we don’t have control over all of it. We only have control over a little more than half of it in terms of the ability to enforce due to the agreement. So, then how do you enforce it? How many millimeters over the line do you get?”

Selectmen ultimately found it best to start by seeking voluntary compliance, with the lion’s share of debate centered on whether to include on the signs a picture of a drone surrounded by a circle with a line though it, the internationally recognized symbol for not allowed. Despite concern the graphic would lead some to believe an ordinance was in place where, in fact, none existed – thus potentially complicating life for local cops fielding complaints – selectmen agreed to final wording on the signs was gentile enough to make clear the town’s drone ban is a request, not a punishable offense.

Staff Writer Duke Harrington can be reached at news@kennebunkpost.com.

Fly ‘em if you got ‘em

In addition to all town beaches, the list of public spaces in Kennebunk where the use of aerial drones would be banned under a proposed parks ordinance includes the following:

• Cannon Park – corner of Main and
Fletcher streets.
• Dog Park – 36 Sea Road.
• Downtown Plaza – 36 Main St.
• Ethelyn Stuart Marthia Park – 128 Beach
Ave.
• Intervale Road River Park – Intervale
Road.
• Lafayette Park – 9 Storer St.
• Lloyd G. Nedeau Memorial Park – 1
Clearbook Crossing
• Lower Village Park – 159 Port Road.
• Parsons Field – 19 Park St.
• Rogers Pond – 49 Water St.
• Rotary Park – corner of Main and Water
streets.
• Route 9 Mousam River Boat Landing –
Western Ave.
• Seagrass Lane Boat Launch – Seagrass
Lane.
• Skateboard Park – 30 Factory Pasture
Lane.
• Washington Memorial Park – next to 4
Summer St.
• Waterhouse Center – 51 Main St.
• West Kennebunk Recreational Field – 39
Holland Road.
• Wiggins Pond – 20 Wood Pond Lane.
• Wonderbrook Park – 16 Plummer Lane.

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