| City Of Berkeley Wood Smoke Nuisance Ordinance
On October 7, 2008, the Berkeley City Council adopted Ordinance No 7063 - N.S. This ordinance added Chapter 15.16 to the Berkeley Municipal Code (BMC) defining standards and a process for establishing a nuisance condition for wood smoke for the immediate and confronting neighbors of an indoor wood burning device.
If you are bothered by wood smoke from an immediate neighbor and the wood burning device is not compliant with the Environmental Protection Agency (EPA) standards for smoke emissions, and it is not a pellet stove or gas burning device, you have recourse by following the procedures set out in BMC Chapter 15.16 to resolve your concerns. The intent of this City Code is to encourage neighbors to mediate rather than to go to court over nuisances caused by wood smoke. Only if all avenues of mediation fail, does the ordinance proposes complainants go to Superior Court to resolve their dispute.
Physical requirements that must be met for complaints under this ordinance:
- The neighbor must be using a wood-burning device not compliant with EPA standards or is burning inappropriate materials such as damp wood, trash, glossy paper, etc. Compliant wood burning devices are gas devices, pellet burners, and devices that are listed with the EPA as meeting acceptable smoke emission limits. Non-compliant devices are open-hearth fireplaces and older wood burning stoves that are not on the EPA’s list of compliant units;
- The neighbor causing the nuisance must live in either an immediate adjoining property, or across the street. Typical lots have 5 properties that are in contact with them and three properties that are directly across the street;
- There is no solid physical barrier (like a structural wall or another building) between you and the neighbor that is in the visual path from the chimney to your residence; and
- The neighbor’s chimney must be less than 120 feet from your habitable living space.
Don’t start with court. Try mediation first.
If you are not able to reach verbal agreement with your neighbor, then follow the resolution process as outlined in BMC 15.16:
- Initial Reconciliation – Send a written communication to your neighbor within 30 days of a burn that caused a nuisance to you. The initial reconciliation letter must describe the problem and must reference that you are following the dispute resolution process in BMC 15.16. Offer to discuss solutions that can work for both of you. Possible solutions may include changing the frequency, duration, or timing of wood burning; using the wood burning appliance during certain weather conditions; operating the wood burning appliance only when the complaining party is not at home; or finally, replacing the wood burning device with an EPA compliant device, or a non-wood burning device.
- Mediation – If the operator of the wood-burning device does not respond within 30 days of the initial written communication issued per step “a” above, the complainant shall send another written communication requesting mediation. If the wood burning appliance operator agrees to mediation within 30 days of the written request for mediation, the two parties shall find a mutually agreed upon mediator and should split the cost.
- Binding Arbitration – If the initial reconciliation and mediation do not resolve the dispute, the complainant must offer to submit the complaint to an arbitrator. If the wood-burning device operator agrees to binding arbitration, a mutually agreed upon arbitrator shall be used.
- Litigation – If initial reconciliation and mediation fail, and binding arbitration has not been elected, the complainant may file an action in court.
Helpful Information to gather and include in dispute resolution process:
- If your complaint needs to go to mediation, the mediation request letter should ask for mediation with a community mediator such as SEEDS Community Resolution Center (510) 548-2377 or email firstname.lastname@example.org;
- When you go to a mediator, an arbitrator, or court, you should have proof that the distance between you and the chimney causing the nuisance is less than 120 feet. This proof could come from scaled maps or photos with a scale indicator or another similar method.
- Pictures of the smoke generated from the neighbor’s chimney could be very helpful and may be advantageous to your case.
- Other evidence - witnesses, expert opinions, etc that may assist your case.
For more information: For more information on wood smoke pollution, health effects and regulations governing wood-burning devices, visit the Bay Area Air Quality Management District's Wood Smoke and Fine Particulate Matter webpage.