Chapter 9.52

AERIAL SPRAYING OF PESTICIDES HEARING PROCESS

Sections:

• 9.52.010 Findings.

• 9.52.020 Definitions.

• 9.52.030 Aerial release of pesticides. 9.52.040 Exceptions.

• 9.52.050 Hearing process. 9.52.060 Operative date. 9.52.070 Liability.

The city council hereby finds and determines that the discharge of quantities of chemical pesticides over the City of San José, a densely populated municipality, may render the air difficult and injurious to breathe, causing physical discomfort, allergic responses, and possible injury to many persons, damage to property, including automobiles, and otherwise producing inconvenience and annoyance to inhabitants of the city by depriving them of pure, uncontaminated and inoffensive air.

Further, the city council hereby finds and determines that the protection of the health, safety, and welfare of the inhabitants of the City of San José necessitates the need to know who will be spraying pesticides and when and where such spraying will occur, in order to prepare the citizenry and the city's emergency services, such as physicians, hospitals, police and fire. (Ord. 20537.)

• A. Person. The term "person" shall mean any individual, group of individuals, partnership, association, corporation, government, governmental agency or other entity or any combination of any entities.

• B. Aircraft. The term "aircraft" shall mean any airplane, helicopter, flying machine or any other

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§ 9.52.020

man-made contrivance now known or hereafter invented, used or designed for navigation or flight in the air.

• C. Pesticide. The term "pesticide" shall mean any substance or mixture of substances which is intended to be used for, or is used for, preventing, destroying, repelling, or mitigating any insects, fungi, bacteria, weeds, rodents, or predatory animals, or for defoliating plants, regulating plant growth, or any other form of plant or animal life which may infest or be detrimental to vegetation, man, or animals.

• (Ord. 20537.)

No person shall spray, drop or otherwise release, or cause to be sprayed, dropped, or otherwise released, any pesticide from any aircraft flying within the city limits of the City of San José except after complying with the provisions of this chapter. (Ord. 20537.)

The prohibitions set forth in the above section shall not apply to prevent the spraying of pesticides during the following unforeseen and otherwise uncontrollable public emergencies and where adherence to the provisions of this chapter would make infeasible the quelling of the following public emergencies:(1) fire, (2) flood, (3) earthquake. Nor shall the prohibitions set forth in the above section apply to prevent the aerial release of pesticides over property used for agricultural purposes when the owner or lawful possessor of said property has consented to said spraying and said spraying is conducted in compliance with all federal, state, and local laws, regulations, and ordinances governing crop-dusting; in such instances the procedures of this chapter shall not apply. (Ord. 20537.)

Any person who intends to spray or otherwise release, or intends to cause to be sprayed or otherwise released, any pesticide from any aircraft flying

within the city limits of the City of San José shall file information with the city manager of the City of San José on such forms as the city manager or council may prescribe. The information shall include, but not be limited to:

1. A statement of the purpose for the desired spraying or release;

2. The date and times of said spraying or release;

3. The areas of the City of San José which would be affected by the spraying;

4. A statement of the anticipated impact of the spraying or release upon humans, animals, vegetation, insects;

5. The reasons why the spraying or release is preferable to other alternative acts and whether other alternative actions are infeasible;

6. A statement of how applicant intends to mitigate any adverse impacts of the spraying or release; and

7. Such other information as may be required.

A hearing before the city council shall be scheduled not less than ten days nor more than twenty days after receipt of the application. Notice of the hearing before the council shall be advertised at least once in a newspaper of general circulation within the City of San José.

The council after hearing may impose any reasonable requirements related to the protection of the health, safety and welfare of the citizens of San José upon the proposed spraying. Such conditions may include, but shall not be limited to, a requirement that the applicant publish in a newspaper of general circulation the schedule of proposed sprayings unless the council finds that such publication is infeasible; and the council may further allow applicant to take other means effectively to notify the public of its spraying schedule, e.g., through television, radio, sound trucks, and the like.

(Ord. 20537.)

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§ 9.54.020

This chapter shall be operative if the provisions of Chapter 9.50 are held invalid in total or with respect to any particular person by judgment or order of any court of competent jurisdiction. In addition to the foregoing, the provisions of Chapter 9.50 shall be operative with respect to any person who claims or intends to claim exemption from Chapter 9.50 because of governmental sovereignty or status; provided that, compliance with chapter 9.50 shall not authorize the spraying or release of any pesticide prior to a judgment or order of any court of competent jurisdiction declaring Chapter 9.50 inapplicable to said person. (Ord. 20537.)

No provision of this chapter shall be construed as imposing a mandatory duty upon city or its officers, agents, or employees under the California Torts Claim Act, Government Code Section 810 et seq. (Ord. 20537.)