Agenda - 05-21-1997 - 9c - Laserfiche WebLink

Browse Search

Ms . Emily Cameron 29 Page 2 February 10, 1997 Pesticide Control Program, North Carolina General Statutes § 143- 434 et seq. , has very clearly "preempted" regulation. N.C . Gen. Stat . § 143-465 (d) states "no county . . . shall adopt or continue in effect any ordinance, rule, regulation, or resolution regulating the use, sale, distribution, storage, transportation, disposal, formulation, labeling, registration, manufacture or application of pesticides in any area subject to regulation by the [pesticide] Board pursuant to this Article. " That subsection goes on to make clear that counties are not prohibited from exercising planning and zoning authority or from exercising fire prevention or inspection authority. Reconciling the prohibition and the authorization of this statute is tricky. I think it is safe to say that some of the provisions in proposed Section 8 . 8 .7 . 5 and 8 . 8 .7 . 6 will not survive a challenge based on preemption. Particularly, to the extent that those sections control the selection and use of pesticides, they will be, I think, preempted by the State Pesticide Control Program. Specifically, Sections 8 . 8 .7 . 5 .a (8) , (9) and (10) should be culled of pesticide use requirements . Subsection "b" of 8 . 8 .7 . 5 should likewise be culled of pesticide use requirements . The management response to pollutant monitoring provisions in 8 .8 .7 . 6 to the extent that it must contain pesticide use requirements should also be culled. It is possible to include monitoring provisions in this whole area and to also provide, either in the Zoning Ordinance or otherwise, for reporting the results of that monitoring to the State for action if appropriate under the State Pesticide Control Program. Any interest on the part of Orange County in doing so should probably be initiated at the Board of County Commissioner level and directed to the Secretary of Agriculture. Lastly, I think Sections 8 .7 and 11 . 6 of the Zoning Ordinance may need to be "cleaned up" if these new regulations are adopted. Section 11 . 6 of the Zoning Ordinance makes an existing use which would require a special use permit conforming with any enlargement, replacement or modification requiring a special use permit . Section 8 .7 of the Zoning Ordinance relating to the distinction between minor changes and modifications to special use permits, should also refer to, in the case of golf courses, new Section 8. 8 .7 to be sure that the intent of the applicability section, new Section 8 .8 .7 . 1, with respect to existing golf courses is carried out . Very truly yours, COL EMAD GLEDHILL & HARGPAtTE, P.C. i eoffrey E. G1 i11 GEG/lsg Enclosure