In a rare move last week, the Malibu Planning Commission contradicted the advice of city attorneys and voted 4-1 to direct staff to write up an amendment to the Local Coastal Program (LCP), banning the use of anticoagulant rodenticides citywide.
“I think it’s an emergency,” Commissioner Mikke Pierson said at the Tuesday meeting. “I don’t see a reason to wait at all. The effects are devastating. They’re horrifying, they’re immoral and they should be illegal.”
The impassioned words came after a slew of public speakers went before the commission urging them to go against the advice of City Attorney Christi Hogin and Assistant City Attorney Trevor Rusin.
Attorneys warned the move could cause legal issues for the city down the road by adopting a law “it cannot enforce,” in the words of City Attorney Christi Hogin in an email directed to local nonprofit group Poison Free Malibu.
In September 2015, city staff reported to the Zoning Ordinance Revisions and Code Enforcement Subcommittee (ZORACES), that “the United States Environmental Protection Agency (EPA) and California Department of Pesticide Regulation (DPR) have the sole discretion to regulate those products,” a staff report stated. “The City Attorney provided a detailed analysis of the legal problem with undertaking any regulation on the use of anticoagulant rodenticides because local jurisdictions in California are preempted from regulating rodenticides.”
Public speakers, notably Kian and Joel Schulman (founders of Poison Free Malibu), argued that the Coastal Commission has already given its blessing for the ban when it approved a similarly worded one for unincorporated L.A. County.
“Coastal Commission cannot grant the city powers that it doesn’t have,” Rusin replied.
Rather than amend the city’s LCP, city staff suggested the Planning Commission “encourage the City Council to make the prohibition of anticoagulant rodenticides a legislative priority and urge the state legislature to either eliminate local preemption or ban anticoagulant rodenticides statewide,” according to a staff report prepared for the meeting.
The majority of commissioners agreed that a ban should come first.
“You don’t make decisions based on your fear of a lawsuit — you do what’s right,” Pierson said.
The sole dissenting vote came from Commissioner Jeffrey Jennings, himself an attorney, who said the ordinance could turn out to be “self-defeating.”
“This is an example of a law that cannot be enforced, and instead of keeping pressure on the legislature, where it should be, you’re going to give the legislature an out,” Jennings said.
The wording of the proposed ordinance will mirror one passed in 2015 by LA County Supervisors.
“The use of anticoagulant rodenticides shall be prohibited, except where necessary to protect or enhance the habitat itself, such as for habitat restoration, and where there are no feasible alternatives that would result in fewer adverse effects to the habitat value of the site,” the proposed language states.
The amendment will next come before the Planning Commission in February before heading to the City Council for final approval and submittal to the Coastal Commission.