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A Morgan County judge has concluded that smoke billowing from a residential wood-burning boiler did not pose the kind of nuisance that an unhappy neighbor could collect damages for.
Without a specific prohibition against burning or diagnostic evidence linking Martha and Clayton Ericson's medical complaints to the smoke, 2nd District Judge Noel Hyde determined their neighbor Chad Willis' nearly non-stop wintertime burning was not a nuisance.
"The fact that there is a statute that says nuisances are unlawful does not make every nuisance a nuisance per se," Hyde said in an unusual two-hour ruling from the bench last Thursday. "There must be a specific statutory prohibition of the conduct that is the subject of the nuisance claim."
Hyde issued his decision just days before the Nov. 1 start of the burn season when the state imposes restrictions on residential wood burning along the pollution-plagued Wasatch Front.
Just 10 miles down Interstate 84 in Weber County, Willis would not have been able to use the boiler when stagnant winter weather traps cold air and pollution near the ground.
New research shows smoke from residential wood burning greatly adds to the fine particulate matter that fouls Utah's valley air on inverted winter days. And there are growing calls to ban the practice, which is already highly restricted along the urbanized Wasatch Front.
But after four days of testimony in his Morgan courtroom, the judge decided the Ericsons could not prove their ailments were linked to their neighbor's intermittent smoke plume.
Besides, Morgan County sits outside the boundaries of the U.S. Environmental Protection Agency's five-county, Wasatch Front air quality non-attainment zone, so there are no restrictions on the use of wood-burning appliances. And Division of Air Quality inspectors did not issue a citation after they visited the site, Hyde noted.
Lacking a legal ban on burning, a citation from the state or medical proof of the health impacts, the judge rejected the Ericsons' claims.
After spending $47,000 on the case, the couple does not plan to appeal, said their attorney, David Stevenson.
The case hinged on a long-standing dispute between neighbors.
In 2006, Willis installed a $10,000 wood-fired boiler outside his home at Spring Hollow, a semi-rural subdivision on North Blue Sage Road outside Morgan. Although his home was equipped with a gas furnace, his attorney argued the investment saved him $450 a month in heating bills during the winter. Willis got the wood for free.
While Willis saved up to $19,000 during the seven winters he used the boiler, its smoke imposed on the Ericsons and their children, Stevenson argued.
Their home is 150 feet from the boiler, which has since been removed by new owners, and the smoke penetrated the house though windows, doors and the dryer vent. The Ericsons alleged the smoke sickened them and made their home and clothing smell.
Martha Ericson's doctors testified the smoke triggered headaches and shortness of breath and eroded her health, already challenged by multiple sclerosis. Smoke may also have induced Martha's respiratory infections and asthma and exacerbated her MS symptoms.
In response to their lawsuit, some neighbors harassed the Ericsons, they said. Their home was decorated with eggs and toilet paper. Letters arrived suggesting they move away from the neighborhood. Dead animals turned up in their yard.
"Martha was afraid to go home in fear of what she would find," Stevenson said in closing arguments.
A person is creating a nuisance when he "intentionally or negligently invades the property of another. Is that person using their own property in a way that is inappropriate, abnormal or dangerous?" Stevenson asked. "The key element is that it disturbs the use and enjoyment. In this case, the defendants' actions affected [the Ericsons'] health, comfort, safety and property rights."
Clean air activist and anesthesiologist Brian Moench, who testified for the Ericsons without compensation, said a single wood boiler emits as much particulate pollution as 3,000 homes heated by natural gas. Moench contends that wood smoke is not safe at any level and may be up to 12 times more dangerous than second-hand cigarette smoke.
To combat that testimony, defense attorney Randall Lee Marshall called several neighbors to testify that Willis' smoke didn't bother them. One even said she liked the smell.
"Only one neighbor complained about the smoke. All the others said they didn't mind," Marshall said. "What's reasonable? Who is of ordinary sensitivities?"
In the end, Hyde, who faces his first retention election Tuesday, agreed with the defense that Willis operated the boiler within all applicable rules and regulations and that Martha appears to be hypersensitive to smoke.
"She is uniquely situated and her condition and health circumstances are not usual or ordinary," Hyde said. "There is no medical diagnosis entered as evidence in this case that suggests that any particular condition complained of was caused by exposure to smoke from defendant's wood-fired boiler."
He noted that a state Division of Air Quality inspector, following up on the Ericsons' complaints, did check out Willis' boiler operations on a few occasions, but never documented any violations of the state's 20-percent opacity standard.
Stevenson had asked the judge to "send a message" to those who sell and operate wood boilers that they have a duty to operate them with extreme care, and to cities and counties that they need to be regulated.
But Hyde said he couldn't, that courts aren't in the business of advocating particular policies or sending messages.
"The legislature is the body that makes public policy determinations and embodies those determinations in statutes and rules," Hyde said.
Moench's testimony may have made great arguments for burn restrictions, but it did not support the Ericsons' claims that Willis' smoke injured them, the judge added.
"His efforts are heartfelt. But they must be addressed to those who can make those policy determinations and regulations that his court can enforce. Until that happens, they cannot be created by this court," the judge said.