Mosquito spray on private land not yet resolved

Published 5:00 am Friday, August 22, 2003

Brookhaven officials are asking for clarification of a recentAttorney General’s opinion regarding to what extent city crews cango onto private property to control mosquito populations.

“There seems to be some confusion on one issue, and we’re goingto ask for clarification on it,” said City Attorney JoeFernald.

The issue involves the authority for city crews to go ontoprivate property to spray for mosquitoes and whether a formal boardhearing to declare a public health and safety hazard is needed.City officials also sought answers regarding going onto privateproperty to clean ditches and mow grass as part of controlefforts.

The city’s interpretation of an Aug. 8 AG’s opinion said ahearing is needed, but a deputy attorney general said Thursday thata hearing is not required for the limited purpose of spraying.

“They can go on private property anywhere in the city to sprayfor mosquitoes with the permission of the landowner,” said MikeLanford, deputy attorney general.

Lanford said the private property spraying would be at thediscretion of the board of aldermen.

“I can see in some cases where they might not want to do that,depending on what the circumstances are, but that is adiscretionary decision to make,” Lanford said.

The recent AG’s opinion reaffirms a 1989 opinion giving citiesdiscretionary power to spray for mosquitoes on private streets andproperty. It suggests a hearing is not needed for the simplepurpose of spraying.

However, the opinion also addresses a hearing process needed ifthe city wants to take more extensive mosquito control measures,such as cleaning debris or draining areas of standing water.

In those cases, the board must hold a hearing to declare an areaa nuisance or menace to public health and safety. The hearing givesthe property owner notice and a chance to be heard.

Following the hearing and a health hazard ruling, the city maygo on private property to address the mosquito-related situation.The property owner is then charged for the city’s services.

“There is no free ride on this,” Fernald said after reviewingthe opinion.

Based on the opinion, aldermen on Tuesday voted to proceed witha public hearing process on a pond along Highway 51 just south ofNatchez Avenue. Alderman-at-large Les Bumgarner said he wanted thecity to see about draining the pond in order to control mosquitoesand snakes.

“I think it will help a lot, the houses in the immediate area,”Bumgarner said. “I’m not sure you need a pond in the middle of aresidential area.”

Aldermen Tuesday also voted to spray the area leading to theKids’ Kingdom playground. Fernald said he believed that wasconsistent with the AG’s opinion regarding spraying, although theplayground is outside the city limits.

In the initial request for opinion, Brookhaven officials alsosought an answer on private property-related grass mowing and ditchcleaning. The opinion said that would not be allowed except underthe formal hearing guidelines.

“We do not find authority for a municipality to clean ditchesand mow grass in the ditches on private property or to mow grassadjacent to but not on the rights-of-way of city streets with thepermission of the landowners,” the opinion said.

Fernald has expressed liability concerns about past city foraysonto private property.

“The fact we’ve done it in the past does not make it right,”Fernald said.

At Tuesday’s meeting, Fernald warned aldermen about liabilityissues and how requests for help are treated. If the city does forone, it will need to do for all, the attorney said.

“You can’t be selective at that point and it gets dangerous,”Fernald said.