City Ordinances, Smoke and Recreational Fires

Part 2 of a 4-Part Series on City Smoke Regulations

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

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.”

About the Author:

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