The Haines Borough has twice used a drone to spot local zoning violations without informing property owners that the unmanned aircraft flew over and photographed their property.

Borough manager Debra Schnabel directed the use of a drone in two zoning enforcement issues during the past three weeks. The photos showed one property in violation of the zoning code, Schnabel said. No determination has been made on the second.

The borough contracted with private drone operator Mark McNamara who charged the borough $200 to fly over and photograph each landowners’ property.

A drone operator flying for commercial purposes, like McNamara, is required to obtain a drone operator’s license from the Federal Aviation Administration.

The borough was investigating zoning permit violations using a drone operator who wasn’t licensed. McNamara’s drone operator’s license is currently in the FAA’s review stage, but it has not been given final approval.

Dwayne Edwards, an FAA aviation safety inspector in Juneau, said the FAA is currently investigating McNamara and has requested documents from the Haines Borough after the CVN made inquiries about his license status.

Edwards said while it’s legal to fly a drone commercially over private property, the fact that someone is photographing the property raises some questions.

“Some of these drones actually have pretty high-definition cameras,” Edwards said. “From my point of view, (photographing personal property) would possibly be invading their personal rights.”

It’s legal for licensed operators to fly drones above private property, with some exceptions. They can’t fly over people or from moving vehicles and must maintain line-of-sight with the aircraft. These rules are subject to a waiver that must be approved by the FAA.

Edwards said he is often contacted for legal advice from drone users. Haines Borough staff has not contacted him, Edwards said.

McNamara used his drone in late September to photograph Carol Waldo’s property on Helms Loop Spur after she began constructing buildings for her commercial marijuana cultivation business. Borough staff had told Waldo her plan to construct the buildings exceeded the allowable use for the rural residential zone. Waldo moved forward with construction and told borough staff she’d pay the fine, according to borough records.

“Images of your properties confirm that you have begun new construction on at least two buildings that are approximately 88 feet long by 28 feet wide,” Schnabel wrote to Waldo in an Oct. 2 cease-and-desist letter.

In early October McNamara photographed Louie Meacock’s property on Piedad Road without his knowledge. Schnabel received information that Meacock was operating a gravel pit in a rural residential zone and authorized use of the drone. There is no borough enforcement record on file for Meacock, however. Schnabel said she wasn’t sure what action she was going to take and didn’t create a file. She said Meacock traded gravel for services, which circumvented the need for a resourcce extraction conditional use permit because he wasn’t technically selling the materials.

Borough staff can take photos to document suspected land-use violations from a public right-of-way without informing the property owner. If the investigator needs to access a portion of the property that can’t be seen from the street it’s customary to request permission. A property owner can refuse and the borough can pursue legal action to gain access to the property.

Schnabel said it is not the borough’s policy to use drones for criminal enforcement. She said the borough’s use of the drone was for investigating permitting issues.

“We took a picture from a public space above their property,” Schnabel said. “We are within the rights provided by the law to do that. I was aware that there were standards, which I did my best to ensure through the hiring of a commercial person who knows what those standards are,” Schnabel said. “I think it was a permissible activity.”

Petersburg Borough Manager Steve Giesbrecht said they stay away from using drones because it could infringe on citizens’ right to privacy.

“The whole drone thing is going to be a big issue. The law is not settled yet. We stay away from it because we’ve heard stories of people (photographing private property) and being sued. It’s worrisome. At what point does the right to privacy come into play?”

Landowners, however, don’t own the air space above their property. The FAA regulates everything above ground level.

Alaska’s constitution guarantees individuals a right to privacy. In an effort to create policies dealing with drone use and privacy, the Alaska Legislature’s Unmanned Aircraft Systems Legislative Task Force created guidelines for private drone use.

“All Alaskans have a reasonable expectation of privacy to live without fear of unwarranted personal invasion,” the task force’s 2015 drone use guidelines say. “With equal importance, Alaskans enjoy the right to be left alone. The definition for reasonable expectation of privacy directly relates to law enforcement requirements to obtain a warrant before actions of search and seizure.”

Alaska law requires law enforcement agencies to obtain a warrant before using drones for a criminal investigation.

Zoning enforcement is civil, not criminal, in nature and no law currently exists regulating drone photography by municipal governments for land-use enforcement. Alaska’s legislative task force recommends that private drone operators follow the Academy of Model Aeronautics’ guidelines. Those guidelines say using drones for the surveillance of private property is “strictly prohibited.” The guidelines do not specifically address government verification of construction in violation of local zoning laws.

“The use of imaging technology for aerial surveillance with radio-control model aircraft having the capability of obtaining high-resolution photographs and or video, or using any types of sensors, for the collection, retention, or dissemination of surveillance data information on individuals, homes, businesses, or property at locations where there is a reasonable expectation of privacy is strictly prohibited by the AMA unless written expressed permission is obtained from the individual property owners or managers,” the AMA guidelines state.

Carol Waldo’s son Kenny Waldo said the use of drones is a “real gray area.” He said he wished the borough had asked permission to inspect the property.

“They shouldn’t use the drones without your permission because it’s an invasion of privacy,” he said. “I think they need a little wake-up call. You can’t just go doing this to people. It’s kind of like trespassing.”

Meacock said people should be informed if the borough is going to use a drone to photograph private property.

“Just to go there and do it without you knowing it, to me that’s like invading your privacy,” Mecock said. “I just have a hard time with that. I guess eventually you’re just a number on a piece of paper.”

McNamara, a former NBA player and coach, didn’t want to comment for this story because he has a personal policy of not commenting to the media. His Twin Lions Productions business license with the state was expired when he conducted business with the borough. It was renewed Tuesday, Oct. 17.

Juneau, Sitka and the Ketchikan Gateway Borough do not use drones for zoning enforcement.