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HomeMy WebLinkAbout08 ORDINANCE ADOPTING REGULATIONS ON THE USE OF UNMANNED AIRCRAFT (DRONES)Agenda Item 8 eo AGENDA REPORT Reviewed: City Manager Finance Director N/A MEETING DATE: OCTOBER 17, 2017 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: JEFFREY C. PARKER, CITY MANAGER SUBJECT: ORDINANCE ADOPTING REGULATIONS ON THE USE OF UNMANNED AIRCRAFT (DRONES) SUMMARY: The growing use of unmanned aerial systems (known commonly as "drones") has given rise to concerns about public safety. While Federal aviation law preempts many local efforts to regulate drones while in flight, the City Council may wish to adopt regulations limiting how and where drones may take off and land, and regulating what property owner permissions are required to be obtained by drone operators. RECOMMENDATION: Conduct the first reading by title only of Ordinance 1487 and direct staff to schedule the Ordinance for second reading and adoption at the next regular meeting of the Council. FISCAL IMPACT: None. The proposed ordinance would adopt regulations in the operation of drones. CORRELATION TO STRATEGIC PLAN: Goal B: Public Safety and Protection of Assets: "Ensure Tustin is an attractive, safe and well maintained community in which people feel pride." The proposed Ordinance would enhance public safety by ensuring accountability in, and safe operation of, unmanned aerial vehicles/drones. BACKGROUND AND DISCUSSION: Federal Preemptions Limit the Breadth of Local Regulations. While Unmanned Aerial Systems, commonly referred to as drones, have existed long before the beginning of the 21st Century they have recently become an emerging policy issue for many cities and counties. Prior to this decade, most drones were either homemade or incredibly expensive to buy which limited the market share and resulted in 1274972.1 Proposed Drone Ordinance October 17, 2017 Page 2 man of these hobbyists self- olicin in a way that did not dem l y y � p g ' y and local, state, or federal regulation. However, when major manufacturing companies entered the market in the early 2010s the cost to produce drones dropped dramatically, lowering the cost of entry for the general population. This resulted in an explosion in the sale of drones; over 2.1 million being bought in the 2015 holiday season alone, for instance. What used to be a mostly self-regulating community has now ballooned into a largely unregulated proliferation of flying, video -capturing devices that are prompting some local agencies to consider adopting I regulations. However, local regulations are also subject to a variety of jurisdictional issues that limit cities' authority in some important respects. For instance, the Federal Aviation Agency (FAA) has been designated by Congress to have exclusive jurisdiction over the regulation of navigable airspace in the United. States. Congress did this to ensure consistency in the nationwide regulatory scheme so that airspace regulations don't differ from state to state. States and municipalities therefore have very little authority when it comes to regulating airspace. However, drones have been viewed as occupying a gray area in aviation law. While the FAA maintains its regulatory supremacy in this area, since 2015, approximately 45 states have considered some type of restriction regarding drone usage. Lack of clarification from the FAA led many cities to assume that they could regulate any drone operating below 400 feet within their jurisdiction, however that assumption was determined by courts to be incorrect. As a result, several local regulations were struck down by courts because they attempted to regulate drones in ways that were preempted by Federal aviation law. For this reason, regulation of the operation of drones while in flight is a matter of FAA regulation. The ACC -OC Model Ordinance. The Association of California Cities, Orange County (ACC -OC) has taken on this difficult issue and, working through its staff and a multi -jurisdictional working group of 25 individuals from the public safety, legal, and government sectors, have sought to address the issue of drone use and regulation in Orange County by preparing a model drone ordinance. When the model ordinance was complete the ACC -OC consulted with FAA legal counsel to ensure that the model ordinance did not contain language or regulations that would trigger a preemption claim. FAA's counsel reviewed the model ordinance and indicated that it is an example of strong public policy that balances federal prerogatives with cities' ability to exercise local control F Provisions of Proposed Ordinance 1487. The City Attorney worked with the Tustin Police Department in reviewing and clarifying portions of the model ordinance suggested by ACC -OC. The resulting proposed Ordinance 1274972.1 Proposed Drone Ordinance October 17, 2017 Page 3 1487 is attached hereto as Attachment 1. Attachment 2 to this Agenda Report is the same proposed Ordinance but redlined to show the specific revisions made to the ACC- OC's model ordinance that have been incorporated by other cities since the model ordinance was approved, and/or that are recommended by the City Attorney and Tustin Police Department to provide additional clarifications. Key Regulations. Specific regulations in the proposed Ordinance include the following: 1. Drones may only takeoff or land within the operator's unassisted visual line of sight; 2. Drones may not takeoff or land within 25 feet of another person except the operator's designee; 3. Drones may not be operated within 500 feet of:any county- or city -owned jail, holding facility, law enforcement facility; 4. Drones may not take off or land on others' private property without the written consent of the property owner, and the operator must keep that consent with them; 5. Drones may not takeoff or land within 100 feet of a City -permitted public event without written permission from the City; 6. Drones may not takeoff or land within 100 feet of a school without written authorization from the school officials; 7. Drones may not takeoff or land within 100 feet of any "designated publicly owned building chosen by the City', as designated by the City Manager; 8. For the safety of other aircraft, drones may not takeoff or land within 1,500 feet of any aircraft; 9. Drones may not have weapons attached to them; 10. Drones may not take off or land in a reckless manner that creates a substantial risk of serious injury to person or damage to property; 11. Drones may not takeoff or land within 500 feet of emergency vehicles operating lights or sirens; 12. Drones may not take off or land within 500 feet of an active law enforcement emergency response incident; and 13. Temporary Flight Restrictions and Notices to Airmen issued by the FAA must be honored. 1274972.1 Proposed Drone Ordinance October 17, 2017 Page 4 Exemptions. There are two exemptions from the Ordinance: A. A drone that is used or operated on behalf of any government agency that meets the qualifications as defined in Section 40102 of Title 49 of the United States Code to operate a public aircraft would be exempt. This generally means government-owned drones used for government purposes. The exemption would specifically apply to drones used or operated on behalf of the Tustin Police Department, Orange County Sheriff/Coroner, Orange County Fire Authority, or other Federal, State and local government agency. And B. The ordinance would not apply to a drone weighing less than 0.55 lbs, due to Federal preemption. Penalties. Finally, a penalties provision has been added which would provide that in addition to other remedies in the City Code, violations would also constitute a misdemeanor punishable by a fine up to $1,000, up to six months in jail, or both. Attachments 1. Proposed Ordinance 1487 2. Proposed Ordinance 1487, redlined to show modifications to ACC -OC model ordinance 1274972.1 Proposed Drone Ordinance October 17, 2017 Page 5 ATTACHMENT 1 [Proposed Ordinance 1487] ORDINANCE NO. 1487 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, ADDING CHAPTER 11 TO ARTICLE 4 OF THE TUSTIN CITY CODE REGARDING THE REGULATION OF UNMANNED AIRCRAFT. The City Council of the City of Tustin does hereby ordain as follows: SECTION 1. The City Council finds and determines as follows: A. The 2015-2016 Orange County Grand Jury report entitled "Drones: Know Before You Fly" found that recreational drones have greatly increased in number since December 2015 and their unregulated use will pose significant threats to public safety and privacy in Orange County cities and unincorporated areas. B. Numerous instances of drone interference with fire and emergency services have been documented. C. On June 22, 2016, the Federal Aviation Administration (FAA) finalized notice of proposed rulemaking (NPRM) entitled Operation and Certification of Small Unmanned Aircraft Systems which imposes operating and certification requirements to allow small unmanned aircraft systems in the National Airspace System for non -hobby purposes and non -recreational purposes. D. Although the FAA's NPRM wholly occupies the regulatory field governing operation of aircraft within the National Airspace System, the FAA declared that "laws traditionally related to State and local police power — including land use, zoning, privacy, trespass, and law enforcement operations — generally are not subject to Federal regulation." E. The City concurs that the City Council has police powers and authority to issue regulations related to land use, zoning, privacy, and law enforcement operations and the exercise of such power and authority herein is not preempted by federal or state law. F. The public necessity, convenience, and general welfare justify the proposed addition of Chapter 11 (Unmanned Aircraft Systems) to Article 4 (Health and Sanitation) of the Tustin City Code. 1274972.1 Proposed Drone Ordinance October 17, 2017 Page 6 G. That proposed Ordinance No. 1487 is not subject to the California Environmental Quality Act ("CEQA") because it is exempt pursuant to CEQA Guidelines (14 Cal. Code Regs.) sections 15060(c)(2), 15060(c)(3), and 15061(b)(3). The activity is not subject to CEQA because it will not result in a direct or reasonably foreseeable indirect physical change in the environment; the activity is not a project as defined in Section 15378, and the activity is covered by the general rule that CEQA applies only to activities that have the potential for causing a significant effect on the environment. Where, as here, it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment, the activity is not subject to CEQA. SECTION 2. Chapter 11 (Unmanned Aircraft Systems) is hereby added to Article 4 (Health and Sanitation) of the Tustin City Code to read as follows: CHAPTER 11 — UNMANNED AIRCRAFT SYSTEMS 4960 — PURPOSE The operation of Unmanned Aircraft Systems (UAS), commonly known as drones, can at times pose a hazard to full-scale aircraft in flight and to persons and property on the ground. Imposing community-based safety requirements and restrictions on the operation of UAS that do not preempt federal aviation rules or authority, or state law, is necessary to mitigate such risks and to protect the public from the hazards associated with the operation of UAS. 4961 — DEFINITIONS Unless the particular provision or the context otherwise requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of the following words and phrases used in this chapter. Unmanned Aircraft System (UAS) or Drone means an aircraft without a human pilot onboard, that is controlled from an operator on the ground, and operates without the possibility of direct human intervention from within or on the aircraft. FAA means the Federal Aviation Administration. Person means any individual, partnership, corporation, or joint venture. Visual Line of Sight means that the operator has an unobstructed view of the UAS. The operator must use his or her own natural vision (which includes vision corrected by standard eyeglasses or contact lenses) to observe the UAS. People other 1274972.1 Proposed Drone Ordinance October 17, 2017 Page 7 than the operator may not be used in lieu of the operator for maintaining visual line of sight. The use of vision -enhancing devices, such as binoculars, night vision goggles, powered vision magnifying devices, and goggles or other devices designed to provide. a "first -person view" from the UAS do not constitute visual line of sight of the operator. Public UAS means a UAS that is used or operated on. behalf of any government agency that meets the qualifications as defined in Section 40102 of Title 49 of the United States Code to operate a public aircraft, including, but not limited to, the Tustin Police Department, Orange County Sheriff/Coroner, Orange County Fire Authority, or any other Federal, State and local government agency. 4962 — PROHIBITED OPERATIONS (a) No person shall takeoff or land a UAS outside of the person's visual line of sight. (b) No person shall takeoff or land a UAS within 25 feet of another individual, except the operator or the operator's designee. (c) No person shall takeoff or land a UAS on private property without the written or electronic consent of the property owner, if the property owner is a person other than the UAS operator. UAS operators must have on their possession a copy of the written or electronic consent from the owner of the property, or properties, upon which they takeoff or land a UAS. (d) No person shall takeoff or land a UAS within one hundred (100) feet of any City - permitted and/or City -sponsored public event unless granted written or electronic permission by the City. UAS operators must have on their possession a copy of the written or electronic consent from the City when they takeoff or land a UAS within one hundred (100) feet of any City -permitted and/or City -sponsored public event. (e) No person shall takeoff or land a UAS within one thousand five hundred (1500) horizontal feet of any aircraft, including any UAS. (f) No person shall takeoff or land a UAS that has any type of weapon attached to it. 4663 - NO RECKLESS ENDANGERMENT No person shall takeoff or land a UAS in a reckless manner so as to create a substantial risk of serious physical injury to any person or substantial risk of damage to the property of another. 1274972.1 Proposed Drone Ordinance October 17, 2017 Page 8 4664 - TIME, PLACE AND MANNER RESTRICTIONS (a) No person shall takeoff or land a UAS within five hundred (500) feet of any emergency vehicle that is operating with lights and/or sirens. (b) No person shall takeoff or land a UAS within five hundred (500) feet of any active law enforcement or emergency response incident. (c) No person shall takeoff or land a UAS in violation of any Temporary Flight . Restriction or Notice to Airmen issued by the FAA. (d) No person shall takeoff or land a UAS within one hundred (100) feet of a school facility without prior notification and written or electronic authorization of school officials. UAS operators must have on their possession a copy of the written or electronic authorization from the school when they takeoff or land a UAS within one hundred feet of the school. (e) No person shall takeoff or land a UAS within five hundred (500) feet of any county or City -owned jails, holding facilities, law enforcement facility, or within one hundred (100) feet of any designated publicly owned building chosen by the City. The designation of publicly -owned buildings subject to this subsection shall be at the discretion of the City Manager. The addresses of all properties described in this subsection shall be available for viewing by the public at the City Clerk's Office. 4665 – EXEMPTION (a) This chapter shall not apply to any Public UAS. (b) This chapter shall not apply to any UAS weighing less than 0.55 Ib. 4667 – VIOLATION—PENALTY In addition to any other penalty or remedy set forth in the Tustin City Code (including all remedies available under Chapter 1 of Article 1 of the Tustin City Code) or set forth under State or Federal law, any person violating this Part shall be guilty of a misdemeanor, punishable by a fine of one thousand dollars ($1,000.00) per violation or by imprisonment in the county jail for a period not to exceed six (6) months, or by both such fine and imprisonment. Each day or portion thereof that a person permits a violation of this chapter to continue shall constitute a separate and subsequent offense. 1274972.1 Proposed Drone Ordinance October 17, 2017 Page 9 SECTION 3. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held out to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby l declares that it would have adopted this ordinance and each section, subsection, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. a PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this day of , 2017. DR. ALLAN BERNSTEIN, MAYOR ATTEST: ERICA N. RABE, CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) CERTIFICATION FOR ORDINANCE NO. 1487 Erica N. Rabe, City Clerk and ex -officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1487 was duly and regularly introduced and read by title only at the regular meeting of the City Council held on the 17th day October, 2017, and was given its second reading, passed, and adopted at a regular meeting of the City Council held on the day of 2017, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: 1274972.1 Proposed Drone Ordinance October 17, 2017 Page 10 Erica N. Rabe, City Clerk Published: 1274972.1 Proposed Drone Ordinance October 17, 2017 Page 11 ATTACHMENT 2 [Proposed Ordinance 1487, redlined to show revisions to ACC -OC Model Ordinance] ORDINANCE NO. 1487 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, ADDING CHAPTER 11 TO ARTICLE 4 OF THE TUSTIN CITY CODE REGARDING THE REGULATION OF UNMANNED AIRCRAFT. The City Council of the City of Tustin does hereby ordain as follows: SECTION 1. The City Council finds and determines as follows: A. The 2015-2016 Orange County Grand Jury report entitled "Drones: Know Before You Fly" found that recreational drones have greatly increased in number since December 2015 and their unregulated use will pose significant threats to public safety and privacy in Orange County cities and unincorporated areas. B. Numerous instances. of drone interference with fire and emergency services have been documented. C. On June 22, 2016, the Federal Aviation Administration (FAA) finalized notice of proposed rulemaking (NPRM) entitled Operation and Certification of Small Unmanned Aircraft Systems which imposes operating and certification requirements to allow small unmanned aircraft systems in the National Airspace System for non -hobby purposes and non -recreational purposes. D. Although the FAA's NPRM wholly occupies the regulatory field governing operation of aircraft within the National Airspace System, the FAA declared that "laws traditionally related to State and local police power — including land use, zoning, privacy, trespass, and law enforcement operations — generally are not subject to Federal regulation." E. The City concurs that the City Council has police powers and authority to issue regulations related to land use, zoning, privacy, and law enforcement operations and the exercise of such power and authority herein is not preempted by federal or state law. F. The public necessity, convenience, and general welfare justify the proposed addition of Chapter 11 (Unmanned Aircraft Systems) to Article 4 (Health and Sanitation) of the Tustin City Code. 1274972.1 Proposed Drone Ordinance October 17, 2017 Page 12 G. That proposed Ordinance No. 1487 is not subject to the California Environmental Quality Act ("CEQA") because it is exempt pursuant to CEQA Guidelines (14 Cal. Code Regs.) sections 15060(c)(2), 15060(c)(3), and 15061(b)(3). The activity is not subject to CEQA because it will not result in a direct or reasonably foreseeable indirect physical change in the environment; the activity is not a project as defined in Section 15378, and the activity is covered by the general rule that CEQA applies only to activities that have the potential for causing a significant effect on the environment. Where, as here, it can be seen with certainty that there is no possibility that the activity may have a significant effect on the environment, the activity is not subject to CEQA. SECTION 2. Chapter 11 (Unmanned Aircraft Systems) is hereby added to Article 4 (Health and Sanitation) of the Tustin City Code to read as follows: CHAPTER 11 —UNMANNED AIRCRAFT SYSTEMS 4960 — PURPOSE The operation of Unmanned Aircraft Systems (UAS), commonly known as drones, can at times pose a hazard to full-scale aircraft in flight and to persons and property on the ground. Imposing community-based safety requirements and restrictions on the operation of UAS that do not preempt federal aviation rules or authority, or state law, is necessary to mitigate such risks and to protect the public from the hazards associated with the operation of UAS. 4961 — DEFINITIONS Unless the particular provision or the context otherwise requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of the following words and phrases used in this chapter. Unmanned Aircraft System (UAS) or Drone means an aircraft without a human pilot onboard, that is controlled from an operator on the ground, and operates without the possibility of direct human intervention from within or on the aircraft. FAA means the Federal Aviation Administration. Person means any individual, partnership, corporation, or joint venture. Visual Line of Sight means that the operator has an unobstructed view of the UAS. The operator must use his or her own natural vision (which includes vision corrected by standard eyeglasses or contact lenses) to observe the UAS. People other 1274972.1 Proposed Drone Ordinance October 17, 2017 Page 13 than the operator may not be used in lieu of the operator for maintaining visual line of sight. The use of vision -enhancing devices, such as binoculars, night vision goggles, powered vision magnifying devices, and goggles or other devices designed to provide a "first -person view" from the UAS do not constitute visual line of sight of the operator. Public UAS means a UAS that is used or operated on behalf of any government agency that meets the qualifications as defined in Section 40102 of Title 49 of the United States Code to operate a public aircraft, including, but not limited to, the Tustin Police Department, Orange County Sheriff/Coroner, Orange County Fire Authority, or any other Federal, State and local government agency. 4962 — PROHIBITED OPERATIONS (a) No person shall takeoff or land a UAS outside of the person's visual line of sight. (b) No person shall takeoff or land a UAS within 25 feet of another individual, except the operator or the operator's designee. (c) No person shall takeoff or land a UAS on private property without the .written or electronic consent of the property owner, if the property owner is a person other than the UAS operator. UAS operators must have on their possession a copy of the written or electronic consent from the owner of the property, or properties, upon which they takeoff or land a UAS. (d) No person shall takeoff or land a UAS within one hundred (100) feet of any City - permitted and/or City -sponsored public event unless granted written or electronic permission by the City. UAS operators must have on their possession a copy of the written or electronic consent from the City when they takeoff or land a UAS within one hundred (100) feet of any City -permitted and/or City -sponsored 2qbk event. (e) No person shall takeoff or land a UAS within one thousand five hundred (1500) horizontal feet of any aircraft, including any UAS. (f) No person shall takeoff or land a UAS that has any type of weapon attached to it. 4663 - NO RECKLESS ENDANGERMENT No person shall takeoff or land a UAS in a reckless manner so as to create a substantial risk of serious physical injury to any person or substantial risk of damage to the property of another. 1274972.1 Proposed Drone Ordinance October 17, 2017 Page 14 4664 - TIME, PLACE AND MANNER RESTRICTIONS (a) No person shall takeoff or land a UAS within five hundred (500) feet of any emergency vehicle that is operating with lights and/or sirens. (b) No person shall takeoff or land a UAS within five hundred (500) feet of any active law enforcement or emergency response incident. (c) No person shall takeoff or land a UAS in violation of any Temporary Flight Restriction or Notice to Airmen issued by the FAA. (d) No person shall takeoff or land a UAS within one hundred (100) feet of a school facility without prior notification and written or electronic authorization of school officials. UAS operators must have on their possession a copy of the written or electronic authorization from the school when they takeoff or land a UAS within one hundred feet of the school. (e) No person shall takeoff or land a UAS within five hundred (500) feet of any county or City -owned jails, holding facilities, law enforcement facility, or within one hundred (100) feet of any designated publicly owned building chosen by the City. The designation of publicly -owned buildings subiect to this subsection shall be at the discretion of the City Manager. The addresses of all properties described in this subsection shall be available for viewing by the public at the City Clerk's Office. 4665 – EXEMPTION (a) This chapter shall not apply to any Public UAS. (b) This chapter shall not apply to any UAS weighing less than 0.55 Ib. 4667 – VIOLATION—PENALTY In addition to any other penalty or remedy set forth in the Tustin City Code (including all remedies available under Chapter 1 of Article 1 of the Tustin City Code) or set forth under State or Federal law, any person violating this Part shall be guilty of a misdemeanor, punishable by a fine of one thousand dollars ($1,000.00) per violation or by imprisonment in the county 'ail for a period not to exceed six (6) months, or by both such fine and imprisonment. Each day or portion thereof that a person permits a violation of this chapter to continue shall constitute a separate and subsequent offense. 1274972.1 Proposed Drone Ordinance October 17, 2017 Page 15 SECTION 3. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held out to be invalid or unconstitutional by the .decision' of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this ordinance and each section, subsection, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this day of , 2017. DR. ALLAN BERNSTEIN, MAYOR ATTEST: ERICA N. RABE, CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) CERTIFICATION FOR ORDINANCE NO. 1487 Erica N. Rabe, City Clerk and ex -officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of. Tustin is.: five; that the above and foregoing Ordinance No. 1487 was duly and regularly introduced and read by title only at the regular meeting of the,. City. Council held on the 17th day .October, 2017, and was given its second, reading, passed, and adopted at a regular meeting of the City Council held on the stay of , 2017, by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: 1274972.1 Proposed Drone Ordinance October 17, 2017 Page 16 COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: Erica N. Rabe, City Clerk Published: 1274972.1