2016-12-02 / Community

No drone zone ordinance pursued

Voters most likely would vote on aerial device ban in June
By Wm. Duke Harrington Staff Writer

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

At their Nov. 22 meeting, selectmen approved final wording of a proposed new “Park Use Ordinance” and sent it to a public hearing. However, because the board’s next regular meeting on Dec. 13 is, in the words of Selectman Christopher Cluff, “getting crowded,” the vote was to leave scheduling open-ended to, “the next available meeting.”

The ordinance will eventually go before voters at the annual town meeting in June.

When Town Manager Barry Tibbetts first presented the parks ordinance in July it was simply a way to formalize and codify various practices and policies already in effect, he said. Drones weren’t even mentioned in the initial draft. However, Tibbetts brought it up as a possibility at that meeting, and selectmen agreed something should be done.

The open question at the time was whether the town has the authority to regulate its skies, as the Federal Aviation Administration (FAA) has asserted it alone has jurisdiction over drones.

In an admitted attempt to skirt the FAA, the new ordinance would ban drones from all public parks in Kennebunk, including beaches, “without authorization from the public services director.”

Tibbetts said that go-ahead would likely be given in most cases only where someone could show Public Services Director Eric Labelle a license to operate or other permission bestowed by the FAA.

Asked by Selectman Ed Karytko if local police would enforce drone operating rules crafted by the FAA — including a ban on flying the crafts directly over people — Tibbetts said that was beyond their scope.

“They’re not going to enforce the FAA regulations,” he said. “What they are gong to enforce is whether or not permission has been received to use the drones in the park.”

Back in December, at the close of a year that saw more than 700,000 aerial drones sold in the U.S., 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. It also said restrictions can be made through land use zoning, but that for any operational restrictions, cities and towns, as well as states, should “consult” with the FAA.

Also in 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 went into effect August 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.”

The proposed parks ordinance contain a definition for “drone,” leaving it to interpretation as to whether a model aircraft to the FAA is a drone to Kennebunk.

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 Maine Municipal Association 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, as cities and towns across the state have raced to keep pace with the new technology.

Locally, Kennebunkport has recently grappled with how, and if, to regulate drone use at Goose Rocks Beach. Earlier this year, 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 or not 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 offence.

As for Kennebunk, very little of the remaining parks ordinance idea has elicited comment from selectmen.

Among other things, it 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 damages done, and a fine set by selectmen.

The new version also struck out a ban on firearms.

“Under state law we are not allowed to regulate firearms in parks,” Tibbetts explained, although he noted that a separate local ordinance is in place banning the discharge of firearms anywhere in town.

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

Return to top