Neighbor Notification Ordinance for San Anselmo, CA

Proposed but never passed due to State of California threats to sue due to state pre-emption on the use of pesticides.

Town of San Anselmo

Staff Report

October 3, 2003

To:           Town Council

From:      Dan Nyberg, Parks Director

RE:          Revised Commercial Applicator Notification Ordinance  
Recommendation 

That Council approve an ordinance requiring notification of adjoining property residents of airborne pesticide applications by commercial pesticide applicators. 

Background 

Staff was directed to revise the definition of “airborne application” and to direct the ordinance posting requirements to include commercial applicators, only.  The substance of such an ordinance would be to require that commercial pesticide applicators notify adjoining property owners at least 24 hours before an airborne pesticide application.  The most immediate benefit of adjoining property notification is that it provides a warning to afford people the opportunity to take simple precautions to minimize their exposure.  In addition, such a law may spur adoption of less hazardous means of pest control by exempting certain pesticides or types of applications from the notice requirements. 

Discussion 

The revised definition used in the attached ordinance is:  “airborne applications means the application of pesticides by misting or spraying plant materials, or by use of a fogger.”  Pre-application notification and post-application notification of an airborne application are required by commercial applicators. 

A letter has been sent to commercial pesticide applicators doing business in Marin, advising them that the Town is considering an ordinance requiring prior notification to adjacent neighbors before pesticide spraying by commercial applicators.  A copy of the proposed ordinance was included for review and comment and the recipients were advised of the date of tonight’s meeting. 

Respectfully submitted, 

R. Dean Nyberg,
Parks Director  

ORDINANCE NO. __________

 

AN ORDINANCE OF THE TOWN OF SAN ANSELMO AMENDING TITLE 5 (SANITATION AND PUBLIC HEALTH) OF THE SAN ANSELMO MUNICIPAL CODE BY ADDING CHAPTER 9 (NOTIFICATION OF COMMERCIAL PESTICIDE APPLICATIONS). 

THE TOWN COUNCIL OF THE TOWN OF SAN ANSELMO DOES ORDAIN AS FOLLOWS: 

Chapter 9 of Title 5 is hereby added to the San Anselmo Municipal Code to read as follows:

Chapter 9 

PESTICIDE NOTIFICAITON 

Sections:

5-9.01    Purpose and Intent

5-9.02    Definitions

5-9.03    Licensing of Commercial Applicators

5-9.04    Maintenance of Records

5-9.05    Emergency Suspension

5-9.06    Pre-application Notification of Airborne Application

5-9.07    Exceptions 

5-9.01     Purpose and Intent 

(a)    It is the intent of the town council in enacting this chapter to prescribe requirements concerning pesticide notifications in order to preserve the health, safety, and welfare of the inhabitants of the Town.  The council finds that there are federal and state laws that regulate pesticides, but that those laws do not exclude local government regulations not inconsistent therewith.  The council finds that this chapter is not inconsistent with federal and state laws, and is not preempted by any such laws.  The town council finds that the provisions of this chapter address the town’s local and municipal concerns of notification of pesticide applications by commercial applicators not addressed by federal or state law.

(b)    The town council finds that wind conditions in the town cause drift to occur during airborne applications of pesticides and that absent pre-application notification, airborne applications of pesticides constitute a nuisance.  It is the intent of the town council in enacting this chapter to prescribe requirements concerning the notification of the public of the outdoor use of pesticides.  The town council finds that this objective is addressed by federal and state laws, and is not pre-empted by any such laws.  The town council further finds that notification of outdoor use is a matter of local municipal concern.

5-9.02     Definitions 

(a)    As used in this chapter, the following terms shall have the following meanings unless the context clearly indicates that a different meaning is intended: 

1.      “Airborne Application” means the application of pesticides by misting or spraying plant materials, or by use of a fogger.

2.      “Contracting party” means a person which hires a commercial applicator or other person to apply pesticides.

3.      “Commercial property” means property owned or leased by a business, industry, church, or school, on which goods or services are provided to the public.

4.      “Commercial applicator” means a person who owns or manages any business activity in which pesticides are applied upon the lands of another for hire or who receives, directly or indirectly, any compensation for such activity.  This definition does not include maintenance personnel hired by commercial establishments, if such personnel have a variety of maintenance duties.

5.      “Defoliant” means any substance or mixture of substances intended to cause leaves or foliage to drop from a plant, with or without causing abscission.

6.      “Desiccant” means any substance or mixture of substances intended to accelerate artificially the drying of plant tissue.

7.      “FIFRA” means the Federal Insecticide, Fungicide, and Rodenticide Atc, 7 U.S.C. 136 et seq., as amended.

8.      “Fogger” means a piece of equipment that breaks some pesticides into very fine droplets (aerosols or smokes) and blows or drifts the fog into the target area.

9.      “Mist blower” means spray equipment in which hydraulic atomization of the liquid at the nozzle is aided by an air blast past the source of spray.

10.  “Misting” means the production of a cloud-like mass or layer of minute globules of pesticide in the air through use of a mist blower or similar device.

11.  “Pest” means any insect, snail, slug, rodent, nematode, fungus, weed, or any other form of terrestrial or aquatic plant or animal life or virus, bacterium, or other microorganism, which is declared by the California State Department of Pesticide Regulation.

12.  “Pesticide” means any substance or mixture of substances intended for destroying or repelling any pest.  This includes without limitation fungicides, insecticides, nematocides, herbicides, and rodenticides and any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant.  The following products are not pesticides:

(a)    Deodorizers, bleaching agents, disinfectants, and cleaning agents for which no pesticide claims are made in the sale, or distribution thereof: and

(b)   Fertilizers and plant nutrients.

13.  “Plant Regulator” means any substance or mixture of substances intended to accelerate or retard, through physiological action, the rate of growth or maturation or otherwise to alter the behavior of plants or their produce, but does not include a plant nutrient, trace element, nutritional chemical, plant inoculants or soil amendment.

14.  “Spray” means a mixture of a pesticide with water or other liquid applied in fine droplets.

15.  “User of pesticides” means any person who applies or causes the emission of a pesticide into the environment, whether by spraying, misting, fogging, dusting, dragging, or other means.  Users of pesticide include, without limitation, commercial applicators. 

5-9.03     Licensing of Commercial Applicators 

No commercial applicator shall engage in the use of application of pesticides without a valid current state license as required by the California State Department of Pesticide Regulation. 

5-9.04     Maintenance of Records 

(a)     Each commercial applicator shall maintain a record of information concerning each pesticide application.  The record shall be consistent with state record keeping requirements.

(b)    Immediately following any pesticide application, each commercial applicator shall provide a full copy of the record set forth in subsection (a) above to the contracting party. 

5-9.05     Emergency Suspension 

The Town Administrator or the Administrator’s designee may suspend any portion of this chapter in the event of an emergency situation, which threatens irreparable harm to the health, safety or welfare of the inhabitants of the town or to the town’s environment. 

5-9.06     Pre-application Notification of Airborne Application 

(a)    Prior to airborne application of any pesticide, commercial applicators shall give notice to all occupants of all adjacent properties.  For purposes of this section, properties located diagonally from the affected property and touching only on a property corner or other point shall be considered to be adjacent, and rights-or-way shall be disregarded in such determinations.

(b)    The notice shall be given at least twenty-four hours prior to application.

(c)    The notice shall be valid for seven days after it is given.

(d)    The notice may be given by posting signs on the property to be treated or by giving verbal or written notice.

(e)    The notice shall contain at a minimum the following information:

(1)   Date notice given;

(2)   Indication that pesticides will be applied and the approximate date of application;

(3)   The name and telephone number of the contracting party or other user of pesticides; and

(4)   Date notice expires. 

(f)      If notice is given by posting signs on the property to be treated, such signs shall conform to the following criteria;

(1)    There shall be a minimum of one water resistant sign along the principal street frontage of the property.

(2)    Signs shall be placed so that the warning is conspicuous from the public right of way.  All required information shall be on one face of the sign.

(3)    For property surrounding commercial buildings or attached dwelling units, signs shall be posted at common access points.

(4)    For town park or open space property, signs shall be posted at each trailhead, street access, or sidewalk entry point, and any additional common access points.

(5)    Signs shall be a minimum of 8 ½ inches by 11 inches in area, and a maximum of 2 square feet in area per face.

(6)    Signs shall be placed at a maximum height of six feet.

(7)    There shall be no greater size of letters for identification of the applicator than for any other information of the sign.

(8)    Signs shall be dark lettering on a bright yellow background. 

(g)    If a commercial property or an attached (i.e. multi-family) residential dwelling is located adjacent to property on which an airborne application of any pesticide is to occur as set forth above, commercial applicators shall make a reasonable attempt to notify the owner or manager of the property at least forty-eight hours prior to the pesticide application.  Upon receipt of such notice, such owner or manager shall not fail to post in a prominent place the information that the adjacent property will be treated. 

5-9.07     Post-application notification of Outdoor Application 

(a)    Commercial applicators who apply pesticides outdoors shall display at least one warning sign for at least twenty-four hours following each pesticide application or longer if suggested or required by the manufacturer’s label.  All signs shall be posted at the time of the pesticide application.

(b)    Signs shall conform to the following criteria:
(1)  Signs shall include the following statement:

“WARNING, PESTICIDES APPLIED

Name:____________ Phone: _________. Remove sign after 24 hours, or per label requirements.”

(2)   The name and telephone number shall be either the contracting party or other user of pesticides.

(3)   Signs shall be at a minimum of four inches by five inches in area per face, and a maximum or 2 square feet in area per face.
(c )  signs shall comply with all other criteria set forth in Subsection 5-9.05, except subparagraph 5-9.05 (f), (5). 

5-9.08     Exceptions 

No notice of outdoor application is required pursuant to Section 5-9.06, “Post-application Notification Outdoor Applicatioin,” under the following circumstances:

      (a)    Individual spraying of weeds if the spraying distance is less than three feet; and

(b)   Spot treatment of areas that are less than a total area of 100 square feet on a lot.

 Introduced at a regular meeting of the Town Council on _________________, and passed and adopted by the Town Council of the Town of San Anselmo at a regularly scheduled meeting on _____________, 2003 by the following vote:

  

AYES;

 NOES;

 ABSENT;

 ABSTAIN;

_______________________________
Mayor

 ATTEST:

 __________________________________________
Town Clerk