Nuisance Burning

Tags: wood burning

Photo: Burning wood (barbeque-fire_122663 © PublicPhoto.org)During the winter months, some residents can be affected by smoke from fireplaces and wood burning appliances. Further, because wood smoke particles are so tiny, they can seep into neighboring houses—even through closed doors and windows, and can be harmful to those who unknowingly inhale them.

Over the past few years, the City of Davis Natural Resources Commission has actively considered the issue of air quality and wood smoke impacts. There have been multiple discussions with community members and subject-matter experts at both Commission and Davis City Council meetings over this time. In response, the City Council amended the existing nuisance ordinance and specifically declared certain visible smoke to be a prohibited nuisance.

More specifically, the ordinance specifies, the emission into the open air of visible smoke from any residential indoor non-wood pellet-burning appliance or any non EPA-Phase II certified wood burning appliance or fireplace used for home- heating purposes in such manner or in such amounts as to endanger or tend to endanger the health, comfort, safety or welfare of any reasonable person, or to cause unreasonable injury or damage to property or which could cause annoyance or discomfort in the area of the emission, is prohibited.

To explain further, there is a violation of the ordinance when;

  1. The visible smoke emanates from indoor burning; and

  2. The visible smoke is not emanating from a wood-pellet-burning appliance; and

  3. The visible smoke is not emanating from a EPA Phase II appliance or fireplace; and

  4. The visible smoke is in such amount that it –

    1. Endangers or tends to endanger the health, comfort, or safety of any reasonable person; or

    2. Causes unreasonable injury or damage to property; or

    3. Could cause annoyance or discomfort in the area of the emission.

Under the nuisance ordinance, any person owning, leasing, occupying and/or having charge or possession of any premises or land in Davis can be held responsible for correcting the nuisance. In addition, if they fail to correct the problem, all of the persons allowing the nuisance to continue are subject to administrative fines, and/or criminal fines, and/or civil remedy.

First Steps

If you have a neighbor that produces visible smoke caused by indoor burning, you should first attempt to address the issue with your neighbor personally. This conversation should be polite, even friendly. It can begin with a statement like, “I’m not sure you’re aware…” The person creating the harmful smoke may not recognize that the smoke they produce penetrates your house or causes you harm. Explain briefly the smoke issue, and ask the neighbor to refrain from producing harmful smoke.

You should be aware that not all neighbors are going to respond to your request, and some may respond in a hostile manner. If nuisance neighbors don’t change their behavior, you have options. As previously stated, the City of Davis does have a nuisance ordinance that prohibits nuisance wood burning. And, it is enforced by the Davis Police Department, principally through its Code Enforcement Unit. If the smoke or wood burning is creating a nuisance, you can file a complaint by calling the Davis Police Department business number at (530) 747-5400, or by leaving a voice message on the nuisance hotline at (530) 757-5646, or by notifying Code Enforcement via the web http://police.cityofdavis.org/code-compliance/code-investigation-request.

However, you don’t have to call the police. You can write a letter (keep a copy) to the offender(s), the property owner, or the property management company, if there is one, detailing the problem and why producing smoke is a nuisance. If the regular production of harmful smoke stops, you have solved your problem. If not, the Davis Police Department can be called for further assistance.

Next Steps

If the nuisance persists, there are a variety of ways to deal with the problem.

The Davis Police Department Code Enforcement Unit has primarily responsibility for enforcing the nuisance ordinance. However, any police officer may respond to reported violations and take appropriate action to abate the nuisance, if necessary.

For a first reported violation, a Notice of Violation will be issued, which notifies the offender of the ordinance and the need to abate the nuisance—not produce visible smoke or use an EPA compliant burning appliance. Assuming no further complaints are received, no further action will be taken.

If additional violations occur at the same address within a 12-month period, the City can issue Administrative Citations. The first citation assesses a $100 penalty, the second violation $200, and any subsequent violations are $500 each.

Additionally, under both California law and the Davis Municipal Code, a person who creates a public nuisance is also subject to arrest and prosecution for a misdemeanor offense and/or civil injunction.

After an officer gets involved, common next steps are:

  • Contacting the residents and letting them know of the complaints. Often, personal contact may help abate the problem.

  • Sending a formal warning to the resident, property manager, and/or property owner letting them know they must correct the problem.

  • Issuing Administrative Citations for violations.

  • Asking the District Attorney to enforce state law nuisance provisions.

You may also take private legal action against anyone who creates a nuisance. Remedies include asking a judge to order the nuisance be abated or suing to recover damages for any harm created by the nuisance.

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