On September 1, 2015, the Poway, California City Council approved an ordinance banning the flight of unmanned aircraft systems (“UAS”), more commonly known as drones, over a significant portion of Poway, California. In passing the ordinance, Poway, near San Diego and with a population of 50,000, becomes the first city in the nation to pass an outright ban on UAS flights. The ordinance was passed in response to UAS-caused interference in fighting wildfires in California. As of July 2015, there were 3,400 California wildfires, which is 1,100 more than usual. Over the past few months, there have been several incidents of fire-fighting air tankers and other firefighting aircraft being grounded in California because of drones.
The Poway ordinance was passed in a 4-1 vote and makes it a misdemeanor to fly a UAS over spaces that comprise 75% of the city: “No person shall launch, operate, or land, as defined herein, any drone in the open space — recreation (OS-R) zone, the open space — resource management (OSRM) zone, planned community (PC), or any rural residential (RR-A through RR -C) zones, until such reasonable time as a detailed study may be made...” The ordinance bans the flight of UAS over these spaces for 45 days, and can be extended twice, the first for a period of up to 10 months and 15 days, the second period for up to 12 more months. Violating the ordinance would be a misdemeanor punishable by up to $1,000.
In a memo introducing the ordinance, the Poway city attorney acknowledged that Poway “is without authority to regulate the flight of drones or any other aviation activities using the airspace,” because the Federal Aviation Act contains expressed exclusive authority on the part of the Federal Aviation Administration to regulate airspace in the United States. However, the city attorney stated that “there is competent authority to support a city’s right to prohibit the landing or taking off of any airplanes, hot air balloons, hang gliders, or unmanned aerial vehicles, such as drones,” citing as support a case from the Sixth Circuit Court of Appeals (Gustafson v. City of Lake Angelus, 76 F. 3d 778 (6th Cir. 1996)) recognizing that a city can prohibit the taking off, landing, or operation of any seaplanes on a city lake.
This ordinance is the latest in a series of California legislative moves to address the use of UAS by the public. Last month, the California Senate sent a bill (S.B. 142) to Governor Jerry Brown that would create trespass liability for those flying a UAS lower than 350 feet above private property. Although passed by large margins in each chamber, Governor Brown vetoed the bill. In Governor Brown’s veto statement, he said the act would make it a crime “whether or not anyone’s privacy was violated by the flight.”