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Judge prohibits outdoor wood boiler in Henrietta Township dispute

by Fredricka Paul | Jackson Citizen Patriot
Friday May 22, 2009, 11:23 PM

A lengthy dispute between Henrietta Township neighbors was resolved this week, resulting in one family not being allowed to use an outdoor wood boiler.

Circuit Court Judge Chad Schmucker ruled that Richard and Julia Cady cannot use the wood boiler, which he believes was a nuisance and health hazard to neighbors.

The Cadys represented themselves in the civil trial in which they were sued by the Jackson County Health Department.

Wood boilers, increasingly popular in rural areas as energy costs rise, transfer heat through water lines from an outside structure to a home for both space and water heating.

The judge also prohibited Cady from incinerating trash, debris and other materials in backyard burn barrels.

Schmucker said the Cadys did not break any laws and that the boiler was properly installed but produces smoke, which can be a nuisance to neighbors.

Richard Soldano, 53, testified he started having headaches in 2003, before Cady built his home, because Cady frequently burned garbage in barrels on his property.

Since then, he's had chest pain and trouble breathing after being outside when the wood boiler is operating.

Soldano's wife has had a chronic cough, and Soldano said he has asthma and a chronic lung condition. Doctors have attributed the conditions to smoke inhalation and warned against the dangers of breathing smoke.

"We are very pleased. It is what we asked the court to do," said Bob Grover, the lawyer for the health department. "I hope it finally resolves problems between neighbors that have been going on for five to six years. I am not optimistic, but hopeful."

— Reporter Danielle Quisenberry contributed to this report.

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COMMENTS (28)Post a comment
Posted by pplvoice on 05/23/09 at 7:01AM

Wow. This is a pretty risky ruling by Judge Schmucker. The trash burning is a no-brainer, but to reach to prohibit the wood burner is stretching way too far. If I were the Cady's I'd appeal this right away. I hope Judge thought about the scope of this ruling and how it could open the flood gates and spawn a free flow of inappropriate law suits against hundreds if not thousands of owners of these wood boilers throughout Jackson County.

Thanks Cit Pat for bringing this story to the press. Far too often civil cases go unnoticed. But this is one case that has a potential to affect many lives for years to come. We haven't seen that last of this case.

Posted by jacksonista on 05/23/09 at 7:21AM

I wonder. Could the Cady's have gotten a smoke stack built that would have taken the smoke way up above the houses?

Maybe this is still a possibility?

Posted by rdwing97 on 05/23/09 at 9:50AM

I agree with pplvoice. This could be a substantial ruling. On one side you have a homeowner utilizing a legal means to produce heat and warmth. On the other side is a perfectly legal right to a quality of life. No doubt if this case is not appealed it will be used as an example for further lawsuits possibly throughout not only Jackson County but also the rest of the country.

Posted by i81u81 on 05/23/09 at 11:11AM

One has to wonder, will the next ruling state..no one can burn wood in their fireplace!! Some judge may rule the smoke is making someone 'sick'. Americans are handing over their freedom....one at a time. Soon, we will all be living in air-tight institutions.

Posted by Bud42 on 05/23/09 at 12:02PM

Cant burn weed cant burn wood what a joke, pretty soon we will not be able to burn gas because some jacko wacko judge will say its a health threat.

Posted by tronsliver on 05/23/09 at 12:25PM

Burning is not legal if it affects someone's health or takes away from the enjoyment of one's property. It doesn't matter if it's a fireplace, or any other wood burning appliance. Outdoor wood boilers are beig banned accross the country because of the amount of pollution they emit. Further, burn barrels should not be allowed in any community. I give Judge Schmucker credit for making the right decision. Henrietta township is beginning to smell like an incinerator.

Posted by DonJeremy on 05/23/09 at 12:32PM

I have some neighborhood kids that I would like Judge Schmucker to declare a nuisance, and their dog poops all over so that's a health hazard.

I'd like to no more about the health departments involvement. Did the Soldanos have to pay for an attorney or did they get the county to pick up the tab? Judge Schmucker said that no laws were being broken.

Yeah, I don't like what this ruling could lead to, I hope it is overturned on appeal.

DJ

Posted by Woodnyet on 05/23/09 at 2:22PM

Most people I've interviewed consider wood smoke to be "harmless" because "it has such a nice smell." Unfortunately, much of that nice sweet smell comes from benzene, a Group 1 carcinogen. Add to the mix, a witch's brew of formaldehyde, carbon monoxide, and ultrafine particles, some of which are shaped like tiny microscopic daggers, which take up residence in the lungs. The particles are infused with chemicals which are akin to toxic waste: benzo[a]pyrene, dioxin, and many others. Biomass combustion is the largest anthropogenic source of airborne dioxin. This covers dairy farmland, leading to uptake into the food chain (dairy products.) Wood combustion smoke can be as bad as coal combustion smoke. It is best for health to keep wood burning to a minimum, or not burn at all.

http://en.wikipedia.org/wiki/List_of_IARC_Group_1_carcinogens

Posted by wmufootball on 05/23/09 at 6:21PM

Thank God for Judge Schmucker. More and more people are opting for the outside wood boilers to lower the cost of heating bills, but to what extent. If you live out in the middle of nowhere, where the smoke can't affect anybody's health then that is great, but more and more you see people having them where the neighbors are right next door. I couldn't imagine day in and out breathing smoke. Especially with all the research pointing to the adverse affects it can have on the lungs from inhalation of wood smoke. He can appeal, but any judge with common sense will not allow this to happen, especially when it is a health concern.
Wake up people and have a little consideration for the people around you.

Posted by LeghorN on 05/23/09 at 7:46PM

The key is "no laws were broken" Schmucher is over stepping his athority. Legislating from the bench. This will be overturned by the Michigan SC.

If I have a bird feeder in my yard and my neighbor has bird alergies will the court order me to dismantle my bird feeder?

Posted by AirForAll on 05/23/09 at 8:21PM

If you can't keep the smoke from heat source to your own land you have a responsibility to your neighbors, if any, to find a different way to heat your home. Everyone has a right to enjoy their home and land and a smoky neighbor shouldn't dictate when you can and can't open your windows or be outside. Smoke from these "locomotives" causes a whole host of health issues. There is no "right" to burn but there is a "right" for all people to breath clean air.

Posted by ErnestG on 05/23/09 at 9:55PM

The Judge was correct. It is against the law to create a nuisance. It is also against the law to create a health problem or threat and that was proven by a health authority. No other laws needed to be invoked for consideration. But there were others that could have been. Dangerous heating equipment laws. Air emission laws. Federal ambient air standards for pm2.5 and air toxic guidelines for benzene and the combined effect of 180 air toxics. This case was easy. The owb was also a threat to life,safety, and welfare in my opinion in addition to a threat to health. I say this because one of the best doctors in my state said smoke from a similar situation was a threat to life, health , safety, and welfare. In my case, a neighbor had a heart attack and my daughter had an asthma attack and the Am Lung Assn gave me an article predicting both of these things can happen from outdoor wood boiler smoke. Stacks can theoretically cut the pm in half if high enough, but not the 180 air toxics and in calm winds, the models used to predict the pm break down. Toxics have a mol wt of about 90 so are heavier than N2 nitrogen with a mol wt of about 28. The toxics weigh down the pm which is also heavier than air and the liquids add wt and take away the shape that helps pm fly in the wind. I tested the pollution with 2 opacity meters that measured "very unhealthy" pollution levels. I helped get an owb bill passed in my state and am working on modelling woodburning equipment in my state with the DEP and EPA with the help of the overnors office. Precedent? Try the state of Washington which banned owb's and the Maine DEP and Air Toxic Advisory Committee that recommended a ban along with the Am Lung Assn. NESCAUM monitored owb's and discovered that they create 2,000 mcg/m3 of pm2.5 and toxicologists say that 3 minutes of this kind of smoke can cause heart attacks and asthma attacks. 3 hrs of the ave pm can cause heart attacks and asthm attacks according to Dr's Schwartz from Haevard and Dr Brown hired to study owb's by the DEP. People have had great sucess in legal proceedings against owb's. 6 out of 6, out of court in Conn. 2 out of 2, I know of in ME, out of court. Some who have appealed have lost $270,000 in 6 year fights. And victims will fight when their lives are at stake. Actually, legislators warned that violence could ensue and this was part of the reason for the owb laws. It could all be so simple if we remembered God's laws to love or care for our neighbors, and to not kill or hurt or harm or poisen or even bother our neighbors.

Posted by selfishsmoke on 05/23/09 at 10:07PM

Good on the judge!
What a fantastic decision.
At long last the precedent is set and we will see more of these selfish smokers stopped from causing misery in their neighbourhoods.
I am so happy and thanks to the Soldano's for having the strength to take it on I wish them all the best with their health :-)
To the smokers, sorry people but the ruling has been made, it is tough if you don't like it.

Posted by ErnestG on 05/23/09 at 10:25PM

The Judge is right. It is against the law to cause a health problem. A health authority proved the health problem. It is also against the law to interfere with one's right to enjoy his property. In my state, the state printed a smoke free brochure explaining that about 90% disliked tobacco smoke. Second hand smoke laws were passed as well. Wood smoke is also a health problem according to the Surgeon General. There were many laws that could have been referenced as well as the health laws. Dangerous heating equipment laws. Air emission laws. Federal ambient air standards for pm2.5 and benzene. The any reasonable proof laws of the EPA could be invoked with photos of a Sears Envirosense air cleaner reading very unhealthy for pollution from opacity meters. Opacity laws. Visible smoke laws. Noxious fumes laws.

Precedents come from higher law and cases not lower courts like this. The Judge was following precedents well established for hundreds of years. Want some more? Try Washington State banning owb's and Maine's DEP and DHS recommending a ban and declaring owb's can and do cause nuisances and health problems. Dozens of owb victims complained about them and got an owb bill passed in ME. 6 out of 6 court cases were settled out of court in Conn, according to NESACAUM.

Thinking of appealing? Everyone has that right. But a stove case went against the burner for $270,000 after 6 years. Too much has been written about the science and health problems to seriously consider this. The odds are not good.
The judge is the local expert in the law and the health department is the local authority on health. This is a model way to go up against an owb threat. Actually if you get a doctor to say it is a threat to life, health, safety, and welfare like I did and you get a witness and a lawyers opinion, the odds are you will not even have to go to court.

Get a doctor who can state life, health, safety, and welfare are threatened and a witness and lawyers letter and few will keep burning. It violates God's commandments to love or care for your neigbor and do no harm to them and most recognize this. Dr's of science have proven owb smoke can and does cause heart attacks and asthma attacks and the Am Lung Assn can advise you on this.

Posted by shirleyb28 on 05/23/09 at 11:34PM

The judge made the right decision. When smoke trespasses onto another property and affects the health of the neighbors it has to be stopped. Apparently some people have no moral values at all and that is why we need judges that know the truth about what actually took place. I often wonder, if they were put in the position where they had to breathe what they have dispersed onto others, would it enlighten them to what they put others through?
For those that think that this ruling will lead to the end of all wood burning, it probably will. Those of you that think that you can just dump your garbage smoke onto others are the very ones that have brought this smoke issue to light. It is nobody's fault but your own.

Posted by WBA on 05/24/09 at 2:17AM

As a member of the wood burners alliance we applaud this decision! Yes I said applaud. It did not take us sensible and responsible wood burners long to see through this smoke screen the wood boiler manufactures have made. Pretending we were allies, telling us we were losing our would burning rights. There are quite a few of us and growing that, do not consider a device that suffocates a fire, and deliberately causes incomplete combustion, which blasts out of a plume less than 20 feet off the ground, and sits near your neighbors living room as responsible wood burning. No one wants to see anyone lose any freedoms, but if we all stand to lose our freedom because of a few people that just don’t see these devices for what they really are, then I am sorry! If you are a responsible gun owner then you should support laws going after criminals not guns. If you are a responsible wood burner, you will support judges shutting down a device such as in this case. If you really understand pollution then you will realize our atmosphere cannot handle these devices, not only from the amount of particulates they emit but the toxins resulting from the suffocating of the fuel (the wood). If you are afraid of losing your wood burning rights then you should be, because these devices are surely to be the cause if it.

Posted by MichFarmer on 05/24/09 at 8:13AM

WoW!

As a science fiction book and movie enjoyer, I can see by the atitudes around me that my prediction of years ago that everyone will be living in a white sterile cubicle by 2025 just might happen...

Posted by skybox53 on 05/24/09 at 8:54AM

Congratulations to Judge Schmucker for stopping this insidious pollution device, and recognizing the hazard of burn barrels. To prove something causes a nuisance or health hazard a law does not need to be broken. Other postings have taken this comment by the judge out of context. For example dogs are legal to own as long as they’re licensed. However, if your dog barks constantly and disturbs your neighbors they can claim nuisance. Here no laws are broken by having the dog but the noise takes away from the neighbor being able to enjoy their property so hence a nuisance is created. In the case of the outdoor burner and burn barrels they are legal to own as long as the emissions from the devices don’t cause a health hazard or nuisance. Based on the judge’s ruling it appears they did.

I’m sure the judge felt there was enough evidence to support his ruling because judges’ don’t take these types of cases lightly. If the health department ruled it to be a health hazard then I would think there was a significant cause to do so.

With respect to an appeal, if someone’s health was affected from smoke and odor I would think there would have been instances where the health department witnessed occurrences of emissions along with pictures etc. Because it was ruled a health hazard I don’t see an appeals court overturning this type of decision.

Do a Google search on the American Lung Association and include Outdoor Wood Boilers: The search would look like this: “American Lung Association” +Outdoor Wood Boilers

Posted by CapnPlanet on 05/24/09 at 9:58AM

I can almost bet the brand of this boiler and can pretty much guaranty that it does not have a fan forced air draft to bring the boiler up to temperature. The truth is a OWB with a fan forced draft, burning only wood (no trash/tires/etc) is really no nuissance at all.

I don't think an outright ban on the devices is wise, however; certain restrictions should be in place. They don't belong within two hundred feet of a neighbor and they should never burn trash.

If people would use their OWB responsibly and with adequate space, there would be no debate

Posted by nomoney0909 on 05/24/09 at 11:25AM

These outdoor wood stoves are just an overrated ineficient waste of money and firewood. You can't increase the length of the smoke stack because the amount of crud collecting in pipe itself is nearly impossible to clean-out, it's a sticky gummy mess and would be difficult to reach . Also I would say 200 ft. distance from your nieghbor is much too close. Can you imagine your neighbor telling you to deal with it because it smells good. Further-more would anyone like to mention what happens when one of these things freeze up?

Posted by mtred on 05/24/09 at 2:23PM

It is about time that some one with some clout took a stand against these stinking nasty wood burners ! These cheap jerks refuse to install their units with neighbors in mind. I hope this ruling goes statewide. You guys that insist on having this type of woodburner , put a 25 foot stack on it, like any inside the home unit has. Because on certain days , the wind blows it right in your face also.

Posted by AirForAll on 05/24/09 at 3:51PM

The 25 foot stack doesn't help. OWBs, by design, don't burn hot enough so you get a lot of "smoldering" . Raising the stack just means it takes a bit longer for the smoke to come back down to the ground. This is not like a Christmas Eve fire in the fireplace smell- this is an all day/every day heavy stench that comes over to your property and creeps into your home through tiny cracks and vents. The smoke from my neighbor's OWB has set off our motion-activated spotlights for hours at a time. You think that's a way to raise 3 kids?? Let's work together to get these pieces of junk out of the neighborhood where they clearly do NOT belong.!

Posted by hooahgirl on 05/24/09 at 4:25PM

I live in the same neighborhood in Pleasant Lake, right next to the Cady and Soldano families. My daughter also has asthma. This burning situation has been more than a nuisance in this neighborhood, it has been a troubling cause for health problems.

I am so relieved that this has been brought to an end. Perhaps all of the children in our neighborhood can now safely play outdoors.

To CapnPlanet- Unfortunately, in our area near Mud Lake / Pleasant Lake the homes are too close together for the 200 feet restriction you suggest. These devices really aren't meant for use in neighborhoods.

Posted by mollyvin on 05/25/09 at 12:05AM

The decision by the Judge was 100 percent right, but why are these nutcases not paying damages
Its obvious the boiler manufactures are playing the “you cant prove that card” when it pertains to health damages, but what about the mental anguish all these people are being put through. I mean to not be able to use your own home or property is just crazy, and these people are certainly not the first, its happening all over the northern part of the country.

We know that the toxins and particulate matter are damaging a persons body, but if they cant prove it in a court then what about the mental anguish. I mean has anyone ever actually smelled an outdoor wood boiler in action, the smell is repulsive! Those poor people having to breathing in that crap is wrong!
If they keep letting the big boiler companies and their customers off the hook, by just shutting down a boiler then this is why they keep selling another 10 to the next 10 people naive enough to buy them.

Posted by julieburgo on 05/25/09 at 9:18AM

Part 1

I live in Pittsburgh, Pennsylvania (Allegheny County) which is in non-attainment of PM 2.5 standards. The polluted air in the city often is trapped by temperature inversions. The smoke and other toxic by-products of wood burning from neighboring fireplaces and wood stoves (certified or not) let alone OWB's, can easily infiltrate the homes of non-burning residents. More and more people are choosing wood for heat as gas prices continue to rise. Most people do not know the health hazards related to wood smoke. I have recently seen fire wood for sale at big chain grocery stores. The wood is not covered and is wrapped in plastic. Now the concern is not just burning wood, it is burning moldy wet wood.

Three years ago, my father passed away and my family moved in to care for my mother who has metastatic breast cancer. She was/is on oxygen due to lung toxicity from chemotherapy. Her cancer has since spread to her lungs. The neighbors with whom she shares a driveway burn a wood fire in a fireplace morning and night in the fall/winter seasons. The smoke filled my mother's home almost every evening. We begged them to stop as my mother was coughing up blood and I had to be rushed to the ER with newly-diagnosed asthma. In addition, my four year old daughter had frequent respiratory infections throughout the winters and several severe double ear infections and consequently, she missed a lot of school. We have letters from three physicians that have been sent to the health department stating that the wood smoke is causing much harm to my family. Two letters are from my mother's doctors and one is from my daughter's pediatrician.

Posted by julieburgo on 05/25/09 at 9:19AM

Part 1

I live in Pittsburgh, Pennsylvania (Allegheny County) which is in non-attainment of PM 2.5 standards. The polluted air in the city often is trapped by temperature inversions. The smoke and other toxic by-products of wood burning from neighboring fireplaces and wood stoves (certified or not) let alone OWB's, can easily infiltrate the homes of non-burning residents. More and more people are choosing wood for heat as gas prices continue to rise. Most people do not know the health hazards related to wood smoke. I have recently seen fire wood for sale at big chain grocery stores. The wood is not covered and is wrapped in plastic. Now the concern is not just burning wood, it is burning moldy wet wood.

Three years ago, my father passed away and my family moved in to care for my mother who has metastatic breast cancer. She was/is on oxygen due to lung toxicity from chemotherapy. Her cancer has since spread to her lungs. The neighbors with whom she shares a driveway burn a wood fire in a fireplace morning and night in the fall/winter seasons. The smoke filled my mother's home almost every evening. We begged them to stop as my mother was coughing up blood and I had to be rushed to the ER with newly-diagnosed asthma. In addition, my four year old daughter had frequent respiratory infections throughout the winters and several severe double ear infections and consequently, she missed a lot of school. We have letters from three physicians that have been sent to the health department stating that the wood smoke is causing much harm to my family. Two letters are from my mother's doctors and one is from my daughter's pediatrician.

Posted by julieburgo on 05/25/09 at 9:36AM

Part 2

The neighbors, who burn wood for "ambiance", and the little heat it provides for their first floor family room addition (which they added when they moved in 9 years ago), told us to get more air purifiers, better windows or move. Their addition's roof is only as high as the first story of their home. The chimney is just above that roof line, but somehow to code. We had sealed doors and windows with plastic and we purchased and used many air purifiers. Which was useless. We were unable to use the door to the driveway and had to help my mother with her oxygen out a back door on the other side of her house for her chemotherapy and doctor appointments. Finally, but not until March 14th, 2008, the Allegheny County Health Department gave an emergency verbal cease and desist to the offending neighbors. They issued this while my mother was hospitalized with bleeding lung tumors and needed radiation therapy to stop the bleeding. It was critical that she come home to a smoke free environment, let alone her own smoke free home. Unfortunately, the county then reneged on the decision and this past fall/winter we suffered yet another wood burning season.

The ill-effects of cigarette smoke (including second-hand smoke) and industrial emissions are well known and laws are in place to protect the public. More states are enacting stricter anti-smoking bans. The right to breathe clean air, especially on one's own property or inside one's own home, should be protected by law. Scientific literature supports the fact that wood smoke is very dangerous and causes health problems. The general public's perception of wood burning, i.e. that it's harmless/nostalgic/"Americana", will be difficult to change unless the hazards are more widely publicized by governmental agencies. (Anti-smoking campaigns and surgeon general warnings on both tobacco and alcohol products have been effective.)

Posted by julieburgo on 05/25/09 at 9:38AM

Part 2
The neighbors, who burn wood for "ambiance", and the little heat it provides for their first floor family room addition (which they added when they moved in 9 years ago), told us to get more air purifiers, better windows or move. Their addition's roof is only as high as the first story of their home. The chimney is just above that roof line, but somehow to code. We had sealed doors and windows with plastic and we purchased and used many air purifiers. Which was useless. We were unable to use the door to the driveway and had to help my mother with her oxygen out a back door on the other side of her house for her chemotherapy and doctor appointments. Finally, but not until March 14th, 2008, the Allegheny County Health Department gave an emergency verbal cease and desist to the offending neighbors. They issued this while my mother was hospitalized with bleeding lung tumors and needed radiation therapy to stop the bleeding. It was critical that she come home to a smoke free environment, let alone her own smoke free home. Unfortunately, the county then reneged on the decision and this past fall/winter we suffered yet another wood burning season.

The ill-effects of cigarette smoke (including second-hand smoke) and industrial emissions are well known and laws are in place to protect the public. More states are enacting stricter anti-smoking bans. The right to breathe clean air, especially on one's own property or inside one's own home, should be protected by law. Scientific literature supports the fact that wood smoke is very dangerous and causes health problems. The general public's perception of wood burning, i.e. that it's harmless/nostalgic/"Americana", will be difficult to change unless the hazards are more widely publicized by governmental agencies. (Anti-smoking campaigns and surgeon general warnings on both tobacco and alcohol products have been effective.)




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