A clarified Attorney General’s opinion authorizes city officialsto go onto private property to spray for mosquitoes under certainconditions, but City Attorney Joe Fernald remained concerned aboutfair treatment for all citizens and other issues.

Citing a 1998 opinion that dealt with pigeons, the recent rulingsays city personnel may go onto private property with owner’spermission to spray “where the governing authorities have found anddetermined that to do so will protect the public health and safetyor will abate a public nuisance.” That finding should be spread onboard minutes.

“The governing authorities may, in its discretion and based onsuch findings, allow such spraying on all private property in thecity and may limit it to certain types of property, places or zoneswithin the city,” the opinion said.

The opinion suggests that private property spraying would notrequire a public nuisance determination hearing if the city has theproperty owner’s permission to spray. However, a hearing would beneeded if the spraying is against the property owner’s wishes.

“In coming to the above conclusions, we note that even wherespraying is limited to public streets, the intended purpose is forthe spray to drift onto private property and there work itseffect,” the opinion said. “Further, although abuse of discretionis always a possibility, we are confident that municipal governingboards can recognize and determine the extent of any threat posedby mosquitoes and fashion remedies calculated to most efficientlyand economically address such threat.”

Fernald was in the process of notifying aldermen about theopinion this week. He disagreed with a portion of the opinion abouta public nuisance finding.

“I think it opens Pandora’s Box,” Fernald said in discussing theopinion.

Fernald said a finding implies that a hearing should be held. Hesaid any findings must be based on sound evidence and not bearbitrary or capricious.

“The problem is how do you apply it fairly,” Fernald said. “Idon’t think you can.”

Fernald said the opinion puts the city in the position of makinga decision with no evidence. In advising the board, he said he willrecommend an ordinance to either spray all yards or have hearingson a case-by-case basis to determine whether a public healthnuisance exists.

“You have to treat everybody the same,” Fernald said.

Fernald also mentioned financial considerations, sprayingeffectiveness and other concerns.

“I don’t think spraying individual back yards is going toprevent West Nile,” Fernald said. “And we don’t have the money tospray every yard in town.”

By spraying, Fernald said the city could be competing againstprivate businesses that spray for mosquitoes. The attorney saidthere could also be liability issues, either for the city or theprivate landowner if an employee is hurt while on theirproperty.

In addition, Fernald pointed out the landowner’s role in helpingto control the mosquito population. Health officials haverecommended clearing property that could result in standing water,emptying anything that could hold water and taking other preventivemeasures.

“If they don’t take care of their yards, we could drop an atomicmosquito bomb and the mosquitoes will still come back,” Fernaldsaid.