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 first in a 4-part series of LMC Codification blog entries on city ordinances and smoke regulation. This week's focus is on Outdoor Wood Burners.
Outdoor Wood Burners
With the recent rise in the cost of natural gas and oil, the use of outdoor wood burners (also known as boilers, furnaces and heaters) is becoming more common nationally. As a result, cities may be receiving inquiries from homeowners who wish to install outdoor wood burners (OWB). In addition, cities may receive complaints from neighbors of newly installed OWBs, particularly concerning the smoke the OWB generates.
Generally, OWBs are more common in rural settings. However, recent years have seen a spike in OWBs appearing in more densely residential neighborhoods. Typically, an OWB resembles a small shed with a short smokestack. The OWB burns wood in a fire box to heat water in a water jacket that surrounds the box. An OWB can be used as a water heater and/or can be used as a primary heat source for the home (typically when attached to a forced air finance inside the home). The typical OWB is powered by wood, but some OWBs burn corn, pellets and biomass. The focus of this article is on wood burning OWBs.
Studies on Health Effects of Outdoor Wood Burners
Due to the rapid increase in OWBs in New York State, the state attorney general commissioned a study on OWB use. The report, titled “Smoke Gets in Your Lungs: Outdoor Wood Boilers in New York State,” found that neighbors of OWB users reported that smoke from the OWB:
• led to a variety of health symptoms, including upset stomach, headaches, dizziness, respiratory effects, and throat and eye irritation
• prevented neighbors from using their yards for normal activities such as gardening, hanging clothes out to dry, playing with children, etc.
• left a residue and smoke odors on items inside their homes, such as clothing, curtains and upholstery
• set off their home carbon monoxide detectors
The full report is available at this link: http://burningissues.org/pdfs/ny-outdoor-wood-boilers-05.pdf
Studies by the Federal Environmental Protection Agency (EPA) indicate that smoke produced from OWBs is dramatically higher than smoke produced by traditional interior gas and oil furnaces (over 1000 times more). Since OWBs tend to be placed in small shacks with very short smokestacks, this dense smoke is often emitted very close to the ground, near windows and in areas where people circulate. The smoke and emissions problems associated with OWBs can be exacerbated when OWB owners use the burner to dispose of trash, tires, or treated wood, potentially releasing toxic chemicals into the air. The EPA’s document “Strategies for Reducing Residential Wood Smoke” is available at this link: http://www.epa.gov/ttncaaa1/t1/memoranda/strategies-doc-8-11-09.pdf
Currently, there are no federal or state standards regulating emissions from residential OWBs. Inhalation of wood smoke is noted to cause many unhealthful side effects. According to the MN Pollution Control Agency website, burning wood adds harmful fine particles and toxins to the air. These particles can cause short term eye, lung, throat irritation problems and long-term health effects (chronic obstructive lung disease, chronic bronchitis, increased risks of cancer), and may be especially harmful young children with developing lungs. The Minnesota Pollution Control Agency also has two webpages dedicated to wood smoke at these links: http://www.pca.state.mn.us/index.php/air/air-quality-and-pollutants/general-air-quality/wood-smoke/wood-smoke.html and
http://www.pca.state.mn.us/index.php/air/air-quality-and-pollutants/general-air-quality/wood-smoke/wood-smoke-problems-and-complaints.html?menuid=&missing=0&redirect=1
City Ordinance Regulation of Outdoor Wood Burners
Despite the lack of federal and state regulations, some cities have opted to regulate OWBs on a local level through their nuisance ordinance. A nuisance is generally defined as anything that is injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property so as to interfere with a comfortable enjoyment of life or property.
Cities are granted the authority to regulate nuisances via a local ordinance by state statute. In Minnesota, the regulation of smoke by cities as a potential nuisance is longstanding. In 1911, the Minnesota Supreme Court upheld a Minneapolis ordinance defining excessive smoke as a public nuisance noting that “smoke. . . becomes a nuisance when it permeates that air surrounding people and invades their residences and places of occupation.” See State v. Chicago, Milwaukee & St. Paul Railway, 114 Minn. 122 (Minn. 1911).
The council has authority to explicitly define a particular nuisance, and then to provide for its regulation or abolition. This means that a city can choose to either completely prohibit OWBs as a nuisance in an ordinance, or provide detailed guidelines for their use. In cities that choose to regulate OWBs, the regulations usually limit the use of OWBs to areas zoned for agricultural use, prohibit the burning of treated wood, garbage and other potentially harmful materials, impose setback requirements from neighboring properties, require smokestacks that are at least as high as neighboring residences and require an annual permit with inspections.
Cities may also attempt to regulate OWBs through their zoning ordinance. Cities could permit or prohibit the OWBs as an accessory, conditional or interim use and establish setback and lot size requirements. If a city chooses to regulate the OWBs through their zoning regulations, they should consider whether the ordinance will be applicable to existing OWBs or considered a lawful non-conformity pursuant to Minn. Stat. § 462.357, subd. 1c. In contrast, pre-existing uses that are declared a nuisance and regulated as such are not protected as lawful non-conformities.
Sample Ordinances Regulating Outdoor Wood Burners
Some sample ordinances regulating OWB from Minnesota cities can be found at these links:
City of Shorewood, MN:
http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn
St Charles, MN:
http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn
Houston, MN:
http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn
City of Madison Lake, MN:
http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn
Hermantown, MN:
http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn
Battle Lake, MN:
http://www.ci.battle-lake.mn.us/index.asp?Type=B_BASIC&SEC=%7BD70447F8-39DE-4DE3-AE68-D0CACA784A3A%7D
Oak Park Heights, MN:
http://www.cityofoakparkheights.com/vertical/Sites/%7B22E6E0E6-5B6F-460C-B43E-F48433F4DDAB%7D/uploads/%7B2B4A3D2D-00CC-4744-94ED-50CD64475DD0%7D.PDF
Albany, MN:
http://ci.albany.mn.us/ORDINANCE%2078.pdf
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 first in a 4-part series of LMC Codification blog entries on city ordinances and smoke regulation. This week's focus is on Outdoor Wood Burners.
Outdoor Wood Burners
With the recent rise in the cost of natural gas and oil, the use of outdoor wood burners (also known as boilers, furnaces and heaters) is becoming more common nationally. As a result, cities may be receiving inquiries from homeowners who wish to install outdoor wood burners (OWB). In addition, cities may receive complaints from neighbors of newly installed OWBs, particularly concerning the smoke the OWB generates.
Generally, OWBs are more common in rural settings. However, recent years have seen a spike in OWBs appearing in more densely residential neighborhoods. Typically, an OWB resembles a small shed with a short smokestack. The OWB burns wood in a fire box to heat water in a water jacket that surrounds the box. An OWB can be used as a water heater and/or can be used as a primary heat source for the home (typically when attached to a forced air finance inside the home). The typical OWB is powered by wood, but some OWBs burn corn, pellets and biomass. The focus of this article is on wood burning OWBs.
Studies on Health Effects of Outdoor Wood Burners
Due to the rapid increase in OWBs in New York State, the state attorney general commissioned a study on OWB use. The report, titled “Smoke Gets in Your Lungs: Outdoor Wood Boilers in New York State,” found that neighbors of OWB users reported that smoke from the OWB:
• led to a variety of health symptoms, including upset stomach, headaches, dizziness, respiratory effects, and throat and eye irritation
• prevented neighbors from using their yards for normal activities such as gardening, hanging clothes out to dry, playing with children, etc.
• left a residue and smoke odors on items inside their homes, such as clothing, curtains and upholstery
• set off their home carbon monoxide detectors
The full report is available at this link: http://burningissues.org/pdfs/ny-outdoor-wood-boilers-05.pdf
Studies by the Federal Environmental Protection Agency (EPA) indicate that smoke produced from OWBs is dramatically higher than smoke produced by traditional interior gas and oil furnaces (over 1000 times more). Since OWBs tend to be placed in small shacks with very short smokestacks, this dense smoke is often emitted very close to the ground, near windows and in areas where people circulate. The smoke and emissions problems associated with OWBs can be exacerbated when OWB owners use the burner to dispose of trash, tires, or treated wood, potentially releasing toxic chemicals into the air. The EPA’s document “Strategies for Reducing Residential Wood Smoke” is available at this link: http://www.epa.gov/ttncaaa1/t1/memoranda/strategies-doc-8-11-09.pdf
Currently, there are no federal or state standards regulating emissions from residential OWBs. Inhalation of wood smoke is noted to cause many unhealthful side effects. According to the MN Pollution Control Agency website, burning wood adds harmful fine particles and toxins to the air. These particles can cause short term eye, lung, throat irritation problems and long-term health effects (chronic obstructive lung disease, chronic bronchitis, increased risks of cancer), and may be especially harmful young children with developing lungs. The Minnesota Pollution Control Agency also has two webpages dedicated to wood smoke at these links: http://www.pca.state.mn.us/index.php/air/air-quality-and-pollutants/general-air-quality/wood-smoke/wood-smoke.html and
http://www.pca.state.mn.us/index.php/air/air-quality-and-pollutants/general-air-quality/wood-smoke/wood-smoke-problems-and-complaints.html?menuid=&missing=0&redirect=1
City Ordinance Regulation of Outdoor Wood Burners
Despite the lack of federal and state regulations, some cities have opted to regulate OWBs on a local level through their nuisance ordinance. A nuisance is generally defined as anything that is injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property so as to interfere with a comfortable enjoyment of life or property.
Cities are granted the authority to regulate nuisances via a local ordinance by state statute. In Minnesota, the regulation of smoke by cities as a potential nuisance is longstanding. In 1911, the Minnesota Supreme Court upheld a Minneapolis ordinance defining excessive smoke as a public nuisance noting that “smoke. . . becomes a nuisance when it permeates that air surrounding people and invades their residences and places of occupation.” See State v. Chicago, Milwaukee & St. Paul Railway, 114 Minn. 122 (Minn. 1911).
The council has authority to explicitly define a particular nuisance, and then to provide for its regulation or abolition. This means that a city can choose to either completely prohibit OWBs as a nuisance in an ordinance, or provide detailed guidelines for their use. In cities that choose to regulate OWBs, the regulations usually limit the use of OWBs to areas zoned for agricultural use, prohibit the burning of treated wood, garbage and other potentially harmful materials, impose setback requirements from neighboring properties, require smokestacks that are at least as high as neighboring residences and require an annual permit with inspections.
Cities may also attempt to regulate OWBs through their zoning ordinance. Cities could permit or prohibit the OWBs as an accessory, conditional or interim use and establish setback and lot size requirements. If a city chooses to regulate the OWBs through their zoning regulations, they should consider whether the ordinance will be applicable to existing OWBs or considered a lawful non-conformity pursuant to Minn. Stat. § 462.357, subd. 1c. In contrast, pre-existing uses that are declared a nuisance and regulated as such are not protected as lawful non-conformities.
Sample Ordinances Regulating Outdoor Wood Burners
Some sample ordinances regulating OWB from Minnesota cities can be found at these links:
City of Shorewood, MN:
http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn
St Charles, MN:
http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn
Houston, MN:
http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn
City of Madison Lake, MN:
http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn
Hermantown, MN:
http://www.amlegal.com/nxt/gateway.dll?f=templates&fn=default.htm&vid=amlegal:mn
Battle Lake, MN:
http://www.ci.battle-lake.mn.us/index.asp?Type=B_BASIC&SEC=%7BD70447F8-39DE-4DE3-AE68-D0CACA784A3A%7D
Oak Park Heights, MN:
http://www.cityofoakparkheights.com/vertical/Sites/%7B22E6E0E6-5B6F-460C-B43E-F48433F4DDAB%7D/uploads/%7B2B4A3D2D-00CC-4744-94ED-50CD64475DD0%7D.PDF
Albany, MN:
http://ci.albany.mn.us/ORDINANCE%2078.pdf
No comments:
Post a Comment