Welcome to Our Series on Regulating Smoke
One thing I’ve noticed as a city attorney over the years – where there’s smoke, there is likely to be fire, but also heated complaints to city hall. Hard to tell which burns hotter from some of the meetings I have attended. Smoke can be the result of residential heating, recreational fires or industrial activities. Whatever the source, smoke is a frequent topic of city regulation. This article is the second in a 4-part series of LMC Codification blog entries on city ordinances and smoke regulation. This week's focus is on recreation fires – typically small fires (under 3 feet) for roasting marshmallows and singing camp songs.
Recreational Fires
Controversy over recreational fires – and the smoke they generate - are common at city halls in Minnesota and nationally. The Sun Press carried a story from Mounds View just this past week:
http://www.mnsun.com/articles/2010/07/16/mounds_view/news/mv15council.txt
In Mounds View neighbors are upset about recreational fires on an adjacent property being carried on "six or seven nights a week” and sometimes at 2 pm. They recently brought their concerns to City Hall, as reported in the press. The smoke generated by the fires is bothering the neighbors – one of whom is asthmatic. The neighbors are also concerned because the adjacent property owner appears to be burning “roofing, siding, decorated logs (treated with arsenic and other chemicals), carpeting, clothing, garbage and green wood.” According to the neighbor testimony before city council, aside from the smoke, these materials “smell bad.”
State law already prohibits the burning of garbage and certain prohibited materials. This includes rubber, plastics, chemically treated materials, tires, etc. This is discussed extensively in the LMC Memo “Open Burning in Cities” (available at this link: http://www.lmc.org/media/document/1/openburning.pdf).
Common Local Restrictions
Many cities choose not to regulate recreational fires. Commonly, recreational fires are exempted from the permit requirements for other types of open burning. The LMC Model Ordinance on open burning takes this approach (linked above). However, some cities do choose to regulate recreational fires for public safety reasons and to limit the affects of smoke on neighboring properties.
Common restrictions on recreational fires include:
• Requiring a permit;
• Limiting the number of permits issued per property per year;
• Limiting the number of fires burning simultaneously on a property;
• Requiring setbacks from buildings and property lines (i.e. 50 feet);
• Limiting times for burning (i.e. from 8am-midnight);
• Setting fuel requirements (i.e. clean, dry wood); and
• Prohibiting fires when wind speeds are high (i.e. over 7 mph).
Sample Language Regulating Smoke
In reviewing recreational fire ordinances, some cities do include language that attempts to directly regulate smoke that may become an irritant to neighbors.
For example, this language from Cottage Grove, MN:
The fire chief may order any recreational fire to be immediately extinguished if the fire poses a nuisance to surrounding residences. A nuisance is deemed to exist if the fire generates flying embers that pose a hazard to property or generates smoke or odors that unreasonably interfere with the use or enjoyment of neighboring properties.
The City of Waconia, MN uses this language:
Burning Prohibitions.
Any smoke generated from a Recreational Fire that becomes a nuisance or irritant shall be due cause to extinguish the fire, regardless of the fuel source.
The City of West Concord, MN uses this language:
920.02. The City Fire Chief or Police Officer and/or designee may perform periodic on-site inspections.
920.03. Open fire for recreational purposes must satisfy the following requirements:
The Fire Chief, Police Officer or its designee is authorized to require that recreational fires be immediately discontinued if smoke emissions are offensive to occupants of surrounding properties or if the Fire Chief, Police Officer or its designee determines that the fire constitutes a hazardous condition.
Subd. 9. Smoke: A recreational fire shall be extinguished immediately if it generates smoke that becomes a nuisance to adjacent or nearby properties, including imposition of smoke into a neighboring structure.
Conclusion
The City of Edina website notes that “in recent years, backyard fires have become more common in suburban cities, where the confines are much tighter than you’d find in the 'great outdoors.'" The new popularity of recreational fires has prompted many cities to consider adopting new regulations on smoke and fire. However, in addition to new regulations, many cities are concurrently urging old fashioned courtesy to neighbors. For example, on the burning permit webpage for Minnetonka, it is noted that “the city of Minnetonka asks its residents to be considerate of their neighbors when having a recreational fire, such as smoke traveling onto adjoining property where breathing problems with the residents may exist.”
One thing I’ve noticed as a city attorney over the years – where there’s smoke, there is likely to be fire, but also heated complaints to city hall. Hard to tell which burns hotter from some of the meetings I have attended. Smoke can be the result of residential heating, recreational fires or industrial activities. Whatever the source, smoke is a frequent topic of city regulation. This article is the second in a 4-part series of LMC Codification blog entries on city ordinances and smoke regulation. This week's focus is on recreation fires – typically small fires (under 3 feet) for roasting marshmallows and singing camp songs.
Recreational Fires
Controversy over recreational fires – and the smoke they generate - are common at city halls in Minnesota and nationally. The Sun Press carried a story from Mounds View just this past week:
http://www.mnsun.com/articles/2010/07/16/mounds_view/news/mv15council.txt
In Mounds View neighbors are upset about recreational fires on an adjacent property being carried on "six or seven nights a week” and sometimes at 2 pm. They recently brought their concerns to City Hall, as reported in the press. The smoke generated by the fires is bothering the neighbors – one of whom is asthmatic. The neighbors are also concerned because the adjacent property owner appears to be burning “roofing, siding, decorated logs (treated with arsenic and other chemicals), carpeting, clothing, garbage and green wood.” According to the neighbor testimony before city council, aside from the smoke, these materials “smell bad.”
State law already prohibits the burning of garbage and certain prohibited materials. This includes rubber, plastics, chemically treated materials, tires, etc. This is discussed extensively in the LMC Memo “Open Burning in Cities” (available at this link: http://www.lmc.org/media/document/1/openburning.pdf).
Common Local Restrictions
Many cities choose not to regulate recreational fires. Commonly, recreational fires are exempted from the permit requirements for other types of open burning. The LMC Model Ordinance on open burning takes this approach (linked above). However, some cities do choose to regulate recreational fires for public safety reasons and to limit the affects of smoke on neighboring properties.
Common restrictions on recreational fires include:
• Requiring a permit;
• Limiting the number of permits issued per property per year;
• Limiting the number of fires burning simultaneously on a property;
• Requiring setbacks from buildings and property lines (i.e. 50 feet);
• Limiting times for burning (i.e. from 8am-midnight);
• Setting fuel requirements (i.e. clean, dry wood); and
• Prohibiting fires when wind speeds are high (i.e. over 7 mph).
Sample Language Regulating Smoke
In reviewing recreational fire ordinances, some cities do include language that attempts to directly regulate smoke that may become an irritant to neighbors.
For example, this language from Cottage Grove, MN:
The fire chief may order any recreational fire to be immediately extinguished if the fire poses a nuisance to surrounding residences. A nuisance is deemed to exist if the fire generates flying embers that pose a hazard to property or generates smoke or odors that unreasonably interfere with the use or enjoyment of neighboring properties.
The City of Waconia, MN uses this language:
Burning Prohibitions.
Any smoke generated from a Recreational Fire that becomes a nuisance or irritant shall be due cause to extinguish the fire, regardless of the fuel source.
The City of West Concord, MN uses this language:
920.02. The City Fire Chief or Police Officer and/or designee may perform periodic on-site inspections.
920.03. Open fire for recreational purposes must satisfy the following requirements:
The Fire Chief, Police Officer or its designee is authorized to require that recreational fires be immediately discontinued if smoke emissions are offensive to occupants of surrounding properties or if the Fire Chief, Police Officer or its designee determines that the fire constitutes a hazardous condition.
Subd. 9. Smoke: A recreational fire shall be extinguished immediately if it generates smoke that becomes a nuisance to adjacent or nearby properties, including imposition of smoke into a neighboring structure.
Conclusion
The City of Edina website notes that “in recent years, backyard fires have become more common in suburban cities, where the confines are much tighter than you’d find in the 'great outdoors.'" The new popularity of recreational fires has prompted many cities to consider adopting new regulations on smoke and fire. However, in addition to new regulations, many cities are concurrently urging old fashioned courtesy to neighbors. For example, on the burning permit webpage for Minnetonka, it is noted that “the city of Minnetonka asks its residents to be considerate of their neighbors when having a recreational fire, such as smoke traveling onto adjoining property where breathing problems with the residents may exist.”
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