Pesticide Power Plays

Fairfax warned that ordinance violates state law

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Pesticide Power Plays

Fairfax warned that ordinance violates state law

BY BILL MEAGHER AND PETER SEIDMAN of the Pacific Sun

When members of the Fairfax Town Council Voted unanimously to require residents to notify their neighbors before using pesticides outdoors, most folks thought the move was a fairly innocuous way to protect health and safety of people and pets in town.

But it turns out that the ordinance, which mandates notification of pesticide use 48 hours before application, runs afoul of state law and the power of chemical companies in Sacramento.

Soon after Fairfax passed its ordinance on March 5, the state Department of Pesticide

Regulation notified the town that it has no right to control the use of pesticides - that is the sole purview of the state.  And, as it turns out no state mandates any sort of neighborhood notification along the lines of the Fairfax ordinance.  So, not only is the Fairfax ordinance invalid, it also violates state law.

"Basically, it is very clear where the law is with all of this," says Glenn Brank, a spokesman for the state Department of Pesticide Regulation.  "While Fairfax may feel this is the best way to get at the problem, they are wrong.  If they want to do this, they need to change the law through legislation, not by passing [local] ordinances that are illegal."

The Department of Pesticide Regulation is not the only entity that has a problem with the folks in Fairfax passing a local law to control the use of pesticides.  After the town passed its new ordinance, the Pesticide Control Operators Association of California fired off a letter to Fairfax Town Hall, warning that the new ordinance violates state law.  The Sacramento law firm of Kahn, Soares and Conway, representing the pesticide trade group, also warned the town that the ordinance puts an unfair and illegal burden on pesticide compani4s that operate in Fairfax.

The Department of Pesticide Regulation told the town out-right that it has no right to pass a local pesticide - use ordinance, and unless the town rescinds its action, the state attorney general will begin preparing legal action to prevent Fairfax from setting its own policies affecting the use of pesticides.  Fairfax has responded by setting aside $1,350 for a legal defense fund.

The state agency turned a bit more conciliatory when it suggested that perhaps Fairfax can work with the county agricultural commissioner to arrive at protocols that, would in effect produce a similar result as the Fairfax pesticide-control ordinance without the force of law to back up the "can't we all just get alone" gambit.

Marin County Agriculture Commissioner Stacy Carlsen failed to return calls seeking comment on his possible role to get Fairfax to drop its ordinance.

Fairfax Town Councilman Frank Egger says Carlsen would just be wasting his breath, anyway.  "The state seems to be very threatened by this whole thing," Egger say, "which I think has more to do with the fact the pest control industry feels threatened.  You have to wonder just who the

Department of Pesticide Regulation is protecting, the public or the pesticide industry."

Brank says the Department of Pesticide Regulation is "charged with protecting the public and the environment."  To do that, he adds, the state must have coherent pesticide - use policies to ensure safety fro the state as a whole, not a Balkanized regulatory system.

The heat Fairfax is feeling from the state could well be blowing down from Sacramento for reasons steeped in irony.  "The previous [Gov. Pete Wilson] administration never did a thing when people complained about the use or regulation of pesticides," Brank says.  "So when the new [Gov. Gray Davis] administration was elected, we were told 'you will respond to everyone.'  So when someplace like Fairfax passes and ordinance like this one, we have to send out a letter telling them [their] law is subject to state law."

Councilman Egger says the Fairfax ordinance is based on similar laws in New York and Connecticut.  "I began to hear form people who had traveled back East and who had seen what could be done with simply telling your neighbor that you are spraying," he says.  "I did my homework, read the [California] state laws, and the laws back East.  I then began to put something together."  Fairfax Town Attorney John Sharp "thinks we are fine, legally," Egger says.

The state heat pouring down on Fairfax has not stopped Sebastopol Mayor Larry Robinson from introducing an ordinance based largely on the Fairfax law.

Robinson says that although the Sebastopol ordinance is still in the discussion stage, he believes it is what residents want, and when the time comes for a vote the ordinance will pass.

The Department of Pesticide Regulation already has contacted the Sebastopol city attorney, notifying the city bout the stat's problems with local pesticide laws.

Mayor Robinson says many people find it hard to understand why the state wants to prevent these local measures from passing.  "I have been hearing from lots of people who are chemically sensitive and live in tow," he says.  "This kind of thing makes a big difference to them.  All we are really talking about here is a neighbor letting you know what day they are going to use chemicals next door that could make you or your kids or your pets sick.  This is about notification, not banning the use of pesticides."

But critics of local pesticide laws have sprouted in both Fairfax and Sebastopol.  They say that requiring residents to notify neighbors of outdoor pesticide use impinges on the rights of what private landowners can do on and with their property.

Robinson counters that argument by saying that requiring notification "is not about telling private landowners what they can do with their land.  It is about telling private landowners what they cannot do to you and your land."

Egger promises that by the end of summer there will be a bumper crop of local pesticide ordinances sprouting in other California cities.  "I have talked with council people in Arcata, Santa Monica, Petaluma and Santa Rosa.  This is an important [public health] issue that is gaining support.  It is where smoking was 20 years ago."

 

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