MEMORANDUM
TO:
FAIRFAX TOWN COUNCIL
FROM:
JOHN SHARP, TOWN ATTORNEY
RE:
AGENDA ITEM 5 FOR MEETING OF JANUARY 9, 2001, ORDINANCE 686, AN ORDINANCE OF THE TOWN OF FAIRFAX AMENDING TITLE 8, HEALTH AND SAFETY OF THE FAIRFAX TOWN CODE, BY ADDING A NEW CHAPTER 8.40
ENTITLED:
PESTICIDES, THE PROHIBITION OF USE ON FAIRFAX PARKS, OPEN SPACE PARCELS AND PUBLIC RIGHTS OF WAY INCLUDING BOTH AERIAL SPRAYING AND GROUND APPLICATIONS AND THE PUBLIC NOTICE OF PESTICIDE USE ON PRIVATE PROPERTY
DATE:
JANUARY 4, 2001 FOR MEETING OF JANUARY 9, 2001
In Conjunction with potential Introduction and ultimate adoption of Ordinance 686 relating to use of pesticides on Town property and notice regarding use of pesticides on private property, the Town Council has requested an opinion regarding the Issue of preemption by the State legislature of laws relating to pesticides. Preemption precludes local regulation, where state or federal legislation indicates an intent by legislators to occupy the entire field regarding a particular matter.
With specific reference to pesticides, prior case law reserved to cities and counties the ability to regulate ',economic poisons". In 1986, the California legislature adopted Food and Agricultural Code §11501 et seq., which specifically states legislative intent of overturning the holding in
People ex rel. George Deukmejian vs. County of Mendocino, et al. (1984) 36 Cal.3rd 476, the prior leading authority stating that local government was not preempted from regulating pesticides. Notwithstanding the adoption of §11501 et seq., it is my opinion that the State legislature, although preempting certain aspects of use of pesticides (Food and Agriculture §11501.1) has not specifically evidenced an Intent to either preclude a local entity from prohibiting the use of certain pesticides on its own property, or from requiring notice to neighbors when a private property owner proposes use of certain pesticides in a residential community.
The reasons for my opinion are as follows:
1.
§11051 et seq, states the purpose of the State pesticide laws as providing for proper, safe and efficient use of pesticides Is "essential for protection of food and fiber and for protection of the public health and safety". The statute further references a variety of agricultural considerations having to do with safety of agricultural and post control workers and similar considerations.
2. The specific statement, at Food and Agriculture Code §11501.1 regarding the field being occupied (and therefore preempted) by the State Is "regulation regarding the registration, sale, transportation, or use of pesticides to the exclusion of all local regulation". A strict reading of proposed Ordinance 686 reveals that said ordinance does not seek to regulate "registration, sale, transportation, or use of pesticides" other than on Town owned property, and to require notice to a neighbor when a pesticide is proposed to be used on private property.
I have found no case law that specifically addresses whether or not §11501 and 11501.1 are intended to apply to circumstances such as those contemplated in proposed Ordinance 686. Accordingly, I am not able to assure the Town Council that a Court would not find such an ordinance to be preempted under state law; however, I believe a legally sustainable argument can be made that:
1.
The Town cannot be precluded from regulating its own use of pesticides on its own property; and
2.
An ordinance that simply requires a neighbor to notify other neighbors when spraying or otherwise applying pesticides does not fall within the commercial and agricultural concerns set forth In §11501 and 11501.1.
Should the Council choose to introduce and ultimately adopt Ordinance 686, it should be aware that, if the State Director of Agriculture determines that the ordinance is preempted, the Director is mandated to notify the Town of said preemption, providing the Town an opportunity to repeal the ordinance. If the Town were to decline to do so, the Director then has an opportunity to seek legal recourse, in the form of an action for declaratory relief, to have the ordinance declared void and of no force or effect.
In summary, whether or not an ordinance such as proposed Ordinance 686 is preempted by state law, is, at least to some extent, an open question; however, the narrow scope of the ordinance as proposed, when compared to the purposes set forth In the referenced state statutes presents at least a viable argument that the ordinance is not preempted.
If the Town council is inclined to adopt the ordinance I would recommend that specific references to name-brand products be deleted, and in their places, descriptions of chemicals sought to be addressed in the ordinance be inserted.
JOHN
E. SHARP
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