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City Ordinances, Smoke and Recreational FiresPart 2 of a 4-Part Series on City Smoke Regulations

By Rachel Carlson, LMC Staff Attorney,http://lmccodification.blogspot.com

One thing Ive noticed as a city attorney over the years where theres smoke, there islikely to be fire, but also heated complaints to city hall. Hard to tell which burns hotterfrom some of the meetings I have attended. Smoke can be the result of residentialheating, recreational fires or industrial activities. Whatever the source, smoke is afrequent topic of city regulation. This article is the second in a 4-part series of LMCCodification blog entries on city ordinances and smoke regulation. This week's focus ison recreation fires typically small fires (under 3 feet) for roasting marshmallows andsinging camp songs.

Recreational Fires

Controversy over recreational fires and the smoke they generate - are common at cityhalls in Minnesota and nationally. The Sun Press carried a story from Mounds View justthis 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 propertybeing carried on "six or seven nights a week and sometimes at 2 pm. They recentlybrought their concerns to City Hall, as reported in the press. The smoke generated bythe fires is bothering the neighbors one of whom is asthmatic. The neighbors are alsoconcerned because the adjacent property owner appears to be burning roofing, siding,

decorated logs (treated with arsenic and other chemicals), carpeting, clothing, garbageand green wood. According to the neighbor testimony before city council, aside fromthe smoke, these materials smell bad.

State law already prohibits the burning of garbage and certain prohibited materials. Thisincludes rubber, plastics, chemically treated materials, tires, etc. This is discussedextensively 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 areexempted from the permit requirements for other types of open burning. The LMCModel Ordinance on open burning takes this approach (linked above). However, somecities do choose to regulate recreational fires for public safety reasons and to limit theaffects of smoke on neighboring properties.

http://lmccodification.blogspot.com/http://lmccodification.blogspot.com/http://lmccodification.blogspot.com/http://www.mnsun.com/articles/2010/07/16/mounds_view/news/mv15council.txthttp://www.mnsun.com/articles/2010/07/16/mounds_view/news/mv15council.txthttp://www.lmc.org/media/document/1/openburning.pdfhttp://www.lmc.org/media/document/1/openburning.pdfhttp://www.lmc.org/media/document/1/openburning.pdfhttp://www.mnsun.com/articles/2010/07/16/mounds_view/news/mv15council.txthttp://lmccodification.blogspot.com/

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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 attemptsto 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 fireposes a nuisance to surrounding residences. A nuisance is deemed to exist if the firegenerates flying embers that pose a hazard to property or generates smoke or odorsthat 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 irritantshall 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 recreationalfires be immediately discontinued if smoke emissions are offensive to occupants ofsurrounding 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 generatessmoke that becomes a nuisance to adjacent or nearby properties, including impositionof smoke into a neighboring structure.

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Conclusion

The City of Edina website notes that in recent years, backyard fires have become morecommon in suburban cities, where the confines are much tighter than youd 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 newregulations, 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 ofMinnetonka asks its residents to be considerate of their neighbors when having arecreational fire, such as smoke traveling onto adjoining property where breathingproblems with the residents may exist.About the Author:

Rachel Carlson is an attorney with the League of Minnesota Cities. The League ofMinnesota Cities is a membership organization serving Minnesota cities since 1913.LMC Codification is a specialized service to help our cities maintain complete, up todate and affordable code books in a frequently changing legal landscape. The LMCCodification blog can be found at:http://lmccodification.blogspot.com.

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