Freedom of Air - Public Awareness of Outdoor Wood Boilers

Public Awareness and Reasearch of Outdoor Wood Boilers

The Law

The purpose of this page is to cover every law, ordinance, or right that we have found that applies to this issue that has directly been violated in our case:


LOCAL ORDINANCES:

Village of Albers Village Code:

CHAPTER 6 - BUILDINGS.

ARTICLE 1 - DANGEROUS BUILDINGS.

6-1-1.  DEFINITIONS.  Wherever the following words or terms are used in this Code, they shall have the meaning herein ascribed to them unless the context makes such meaning repugnant thereto:

"DANGEROUS BUILDING"  As used in this Chapter is hereby defined to mean and include:

(A)  Any building, shed, fence, or other man-made structure which is dangerous to the public health because of its construction or condition, or which may cause or aid in the spread of disease or cause injury to the health of the occupants of it or of neighboring structures;

(B)  Any building, shed, fence, or other man-made structure which, because of faulty construction, age, lack of proper repair or any other cause, is especially liable to fire and constitutes or creates a fire hazard;

(C)  Any building, shed, fence, or other man-made structure which, by reason of faulty construction, age, lack of proper repair or other cause, is liable to cause injury or damage by collapsing or by a collapse or fall of any part of such structure;

(D)  Any building, shed, fence, or other man-made structure which, because of its condition or because of lack of doors or windows is available to and frequented by malefactors or disorderly persons who are not lawful occupants of such structure.  Any such dangerous building in the Village is hereby declared to be a nuisance.

6-1-2.  MAINTENANCE UNLAWFUL.  It shall be unlawful to maintain or permit the existence of any dangerous building in the village; and it shall be unlawful for the owner, occupant, or person in custody of any dangerous building to permit the same to remain in a dangerous condition, or to occupy such building or permit it to be occupied while it is or remains in a dangerous condition.


CHAPTER 25 - NUISANCES.  

ARTICLE 1 - GENERALLY.
 

25-1-1.  SPECIFIC NUISANCES ENUMERATED It is hereby declared to be a nuisance and to be against the health, peace and comfort of the Village for any person within the limits of the Village to permit the following, but the enumeration of the following nuisances shall not be deemed to be exclusive;

(G)  Noxious Odors.  To erect, continue or use any building or other place for the exercise of any trade, employment, or manufacture which, by occasioning noxious exhalations, offensive smells or otherwise, is offensive or dangerous to the health of individuals or of the public.

(V)  Generally. To commit any offense which is a nuisance according to the common law of the land or made such by a statute of a state. 

 (See ILCS, Chapter 100, Sections.  1/2 and 26-29.)

 
25-1-2.  NUISANCES DETRIMENTAL TO HEALTH GENERALLY.   No building, vehicle, structure, receptacle, yard, lot, premise, or part thereof shall be made, used, kept, maintained, or operated in the Village if such use, keeping, or maintenance of same shall be dangerous to health.

 
25-6-2.  BURNING LEAVES.

(A)  The burning of leaves within the corporate village limits of the Village of Albers is hereby banned and shall not be permitted except for the following:

      (1)  Residents shall be allowed to burn leaves Monday, Wednesday and Saturday from noon until dusk.

            (a)  The burning of leaves shall be prohibited on any day that is a national holiday;

            (b)  The burning of leaves shall be prohibited on any day the Police have determined that weather conditions make burning within the Village unsafe;

 

I placed the burning ordinance above because it allows for burning three days a week from noon until dusk. Yet, we have to live with burning 24/7.

 

27-3-2.  CRIMINAL DAMAGE TO PROPERTY.

Any of the following acts by a person shall be a violation of this Code.

(A)  To knowingly damage any property of another without hers/his consent; or

(B)  Recklessly, by means of fire or explosive, damage property of another; or

(C)  Knowingly start a fire on the land of another without hers/his consent; or

(D)  Knowingly injure a domestic animal of another without hers/his consent; or

(E)  Knowingly deposit on the land or in the building of another, without hers/his consent, any stink bomb or any offensive smelling compound and thereby, intend to interfere with the use by another of the land or building.

(See ILCS, Chapter 38, Section.  21-1.)
 

CHAPTER 40 - ZONING CODE. 

GENERAL PROVISIONS. 

40-1-3.  PURPOSE.   The overriding purpose of the Zoning Code is the protection and promotion of the public health, safety, comfort, morals, and welfare.  More specifically, the various provisions of this Code will enable the Village to insure that:

(A)  Land uses and structures within the community are properly situated in relation to one another;

 

STATE LAWS:

State of Illinois Statutes and Laws:

1) Constitution of the State of Illinois


Article 1
BILL OF RIGHTS


SECTION 1. INHERENT AND INALIENABLE RIGHTS

All men are by nature free and independent and have
certain inherent and inalienable rights among which are life,
liberty and the pursuit of happiness. To secure these rights
and the protection of property, governments are instituted
among men, deriving their just powers from the consent of the
governed.


SECTION 2. DUE PROCESS AND EQUAL PROTECTION

No person shall be deprived of life, liberty or property
without due process of law nor be denied the equal protection
of the laws.

SECTION 12. RIGHT TO REMEDY AND JUSTICE

Every person shall find a certain remedy in the laws for
all injuries and wrongs which he receives to his person,
privacy, property or reputation. He shall obtain justice by
law, freely, completely, and promptly.


Article XI
Environment


SECTION 2.  RIGHTS OF INDIVIDUALS

Each person has the right to a healthful environment.
Each person may enforce this right against any party,
governmental or private, through appropriate legal
proceedings subject to reasonable limitation and regulation
as the General Assembly may provide by law.

(Source: Illinois Constitution.)

CLICK BELOW:


State of Illinois Constitution

2) (415 ILCS 5/) Environmental Protection Act.

TITLE I: GENERAL PROVISIONS

    (415 ILCS 5/1) (from Ch. 111 1/2, par. 1001) 

(415 ILCS 5/3.115) (was 415 ILCS 5/3.02)
    <br>

Sec. 3.115. Air pollution. "Air pollution" is the presence in the atmosphere of one or more contaminants in sufficient quantities and of such characteristics and duration as to be injurious to human, plant, or animal life, to health, or to property, or to unreasonably interfere with the enjoyment of life or property.
(Source: P.A. 92‑574, eff. 6‑26‑02.)

(415 ILCS 5/2) (from Ch. 111 1/2, par. 1002)

    Sec. 2. (a) The General Assembly finds:

(iii) that air, water, and other resource pollution, public water supply, solid waste disposal, noise, and other environmental problems are closely interrelated and must be dealt with as a unified whole in order to safeguard the environment;

(iv) that it is the obligation of the State Government to manage its own activities so as to minimize environmental damage; to encourage and assist local governments to adopt and implement environmental‑protection programs consistent with this Act; to promote the development of technology for environmental protection and conservation of natural resources; and in appropriate cases to afford financial assistance in preventing environmental damage;

CLICK BELOW:

Illinois Environmental Protection Act: TITLE 1: General Provisions

3) (415 ILCS 5/) Environmental Protection Act.

TITLE II: AIR POLLUTION

    (415 ILCS 5/8) (from Ch. 111 1/2, par. 1008)

    Sec. 8. The General Assembly finds that pollution of the air of this State constitutes a menace to public health and welfare, creates public nuisances, adds to cleaning costs, accelerates the deterioration of materials, adversely affects agriculture, business, industry, recreation, climate, and visibility, depresses property values, and offends the senses.

    It is the purpose of this Title to restore, maintain, and enhance the purity of the air of this State in order to protect health, welfare, property, and the quality of life and to assure that no air contaminants are discharged into the atmosphere without being given the degree of treatment or control necessary to prevent pollution.

(Source: P. A. 76‑2429.) 

(415 ILCS 5/9) (from Ch. 111 1/2, par. 1009)

    Sec. 9. Acts prohibited. No person shall:

    (a) Cause or threaten or allow the discharge or emission of any contaminant into the environment in any State so as to cause or tend to cause air pollution in Illinois, either alone or in combination with contaminants from other sources, or so as to violate regulations or standards adopted by the Board under this Act;

    (b) Construct, install, or operate any equipment, facility, vehicle, vessel, or aircraft capable of causing or contributing to air pollution or designed to prevent air pollution, of any type designated by Board regulations, without a permit granted by the Agency, or in violation of any conditions imposed by such permit;

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Illinois Environmental Protection Act: TITLE 2: Air Pollution

4) Illinois Administrative Code:

TITLE 35: ENVIRONMENTAL PROTECTION

SUBTITLE B: AIR POLLUTION

CHAPTER I: POLLUTION CONTROL BOARD

PART 243 AIR QUALITY STANDARDS

SECTION 243.102 PREAMBLE


Section 243.102  Preamble

A) Air quality standards are limits on atmospheric concentrations of air contaminants established for the purpose of protecting public health and welfare.  The levels of air quality designated by the standards are designed to protect against injury to human, plant or animal life and they are further intended to allow maximum enjoyment of life and property consistent with the intent of the Act.

B)  The first use of our air resources is to sustain life.  Air entering the respiratory tract must not menace health.  Therefore, the air quality standards set must, as a minimum, provide air which will not adversely affect, through acute or chronic symptoms, the health of the community.  Adverse health effects include not only the possible production and aggravation of disease, but also interference with bodily functions.  The standards have also taken into account soiling, corrosion, vegetation damage and other human effects.

CLICK BELOW:

Illinois Administrative Code

5) (410 ILCS 87/) Indoor Air Quality Act.

Public Health

(410 ILCS 87/5)
    Sec. 5. Findings. The General Assembly finds that: 

 (1) Indoor air pollution is a serious threat to public health. The United States Environmental Protection Agency considers indoor air pollution to be the number one environmental health threat in the United States.     

(2) The State of Illinois lacks guidelines that define and protect indoor air quality. The development of these guidelines is required to ensure the health and safety of the people of Illinois.
(Source: P.A. 88‑318.)

(410 ILCS 87/10)

Sec. 10. Definitions. For the purposes of this Act:
"Acceptable indoor air quality" means that the air is free of excessive levels of chemical and physical contaminants and microbiological hazards.

CLICK BELOW:

Illinois Indoor Air Quality Act


SMOKE FREE ILLINOIS ACT:

In January of 2008, the state of Illinois is passing the Smoke Free Illinois Act.  Smoking will not be allowed in restaurants, bars, nightclubs, and all other public buildings. The ban will also be in effect within 15 feet of building entrances, exits, and windows. The state if Illinois is the 19th state to pass such a ban.

 To see the Act in its entirety, click on the link below:

CLICK BELOW:
Smoke Free Illinois Act

To view a synopsis:

CLICK BELOW:

Smoke Free Illinois Act

The reason we included this in the law section is because we feel that our legislators are saying we have clean air rights in a public place, yet we find it very difficult to know that we don't have those same rights in our own private residence.  Our hope is that our State Legislators will one day share our point of view and appropriately take actions to ensure we have clean air in our home along with all residents in Illinois.

CONSTITUTIONAL LAW:


United State Constitution:

The Fifth Amendment bans "taking" your property, include by "taking" the use and enjoyment thereof, via noise, smoke, water pollution, or any other type of "taking." The Fourteenth Amendment makes the Fifth Amendment applicable to the states and their political subdivisions.

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The Fifth Amendment of the U.S. Constitution

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The Fourteenth Amendment of the U.S. Constitution

The "common law" is mandated recognition by the Seventh Amendment in the Bill of Rights of the U.S. Constitution. The "common law" is one of the "rights of Englishmen" for which the Founding Fathers had fought the American Revolution. They wanted these rights put in the Constitution. That is why they mandated that courts follow those rights, by the Seventh Amendment.

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The Seveth Amendment of the U.S. Constitution

The Tenth Amendment corroborates this, by providing that people retain all their unlisted rights.

 The Tenth Amendment of the U.S. Constitution

The U.S. Constitution is the "supreme law," and all lesser documents (federal laws, state constitutions, state laws, county and city ordinances, contracts, etc.) are subordinate to it, the Federal Constitution.


COMMON LAW RIGHTS:

Common Law:

It is an ancient common law maxim applicable in both civil and criminal law: "Sic utere tuo ut alienum non lædas" ("Use your own property in such a manner as not to injure that of another"), Black's Law Dict, supra, p 1380

"Common Law."  The "common law" comes from the time before Congress and state legislatures even existed.  Obviously our ancestors had laws, even before such officials existed.  The term "common law" refers to this aspect of what they had, and is defined as follows:
 

"As distinguished from statutory law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security [rights] of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and in this sense, particularly the ancient unwritten law of England."
 

The ancient common law Right to Fresh and Pure Air has been developed since at least the year 1306 and has a long record of judicial recognition. See Rex v White and Ward, 1 Burr 333 (KB, 1757) and Rex v Neil, 2 Carr & Payne 485 (Eng, 1826) ("It is not necessary that a public nuisance should be injurious to health; if there be smells offensive to the senses, that is enough, as the neighborhood has a right to fresh and pure air") cited with approval in Ross v Butler, 19 NJ Eq 294, 299; 97 Am Dec 654 (NJ, 1868) (a case involving a nuisance from burning pine wood affecting the adjoining land owner by smoky cinders and odors as not even a short nuisance is allowed when foreseeably recurring)


Common Law rights are the fundamentalist rights that each American citizen is entitled to. Below, we have listed a local regulation that uses the term "common law."

As per nuisance in Albers, Illinois:

(V)  Generally. To commit any offense which is a nuisance according to the common law of the land or made such by a statute of a state.

Below is the link to the State of Illinois Common Law Act:

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Illinois Common Law Act(5 ILCS 50/1) (from Ch. 1, par. 801)


ENTITLEMENT TO QUIET ENJOYMENT:

In Illinois, the earliest case law we could find dealing with enjoyment of property dates back to 1892. The case and information are listed below:

44.ill.App.215

44.ill.App.215, 1892 WL 2028(111.App. 1 Dist.) 

Appellate Court of Illinois, First District.

CHICAGO & GREAT WESTERN RAILROAD COMPANY

v.

CARL WEDEL. 

March Term, 1892.

 

Summary: This is in brief the case:

A railroad built closely to a residence and the owner of the residence argued it violated his right to quiet enjoyment of his home. He argued this because his house was being covered with dust, dirt, cinders, ashes, smoke and noisome vapors from the railroad which eliminated enjoyment of property. 

 The plaintiff argued :
 

"plaintiff says that he has been and is entitled to the quiet enjoyment, benefit and use of the said premises and improvements, and every part thereof, but that the defendant well knowing the premises, but contriving and wrongfully intending to injure the plaintiff and disturb him in the convenient and quiet use of the said dwelling house and of the said premises with the appurtenances;"

"And the plaintiff says that by means of the premises he has been greatly hindered in the use and enjoyment of his said premises and dwelling house, and that the rental value of said premises which before the committing of said grievance had always been rented, has been greatly depreciated and has been nearly destroyed, and said dwelling house is often vacant and unrented because tenants refuse to submit to said nuisances caused by the defendant therein," 

The case was ruled in favor of the plaintiff showing he did have the right to quiet enjoyment.  

Due to the inability to copy this case, I cannot provide a link for you to view the case in its entirety. You should however be able to search for this case with the information posted above.  If  you find a link for this case to copy, please let me know and I will add it.


The "right to fresh and pure air" has been regularly upheld; a case list and analysis is found in Annotation: Nuisance Resulting from Smoke Alone as Subject for Injunctive Relief, 6 ALR 1574 (1920).

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Annotation: Nuisance Resulting from Smoke Alone as Subject for Injunctive Relief, 6 ALR 1574 (1920).

Scroll to about the middle of that page and you will find the Annotation.


OTHER AREAS OF LAW/RESOURCES:

UNIVERSAL MALICE:

The "universal malice" concept is well-established in law, dating from at least as long ago as Mitchell v State, 60 Ala 26, 29 (1877) and State v Massey, 20 Ala App 56, 58; 100 So 625, 627 (1924). 

Universal malice encompasses toxics causing "premature death" "without knowing or caring who may be the victim," Black's Law Dictionary 1110 (4th ed. 1968), citing Mitchell v. State, 60 Ala. 26, 30 (1877). "Precisely what happened is what might have been expected as the result . . . and is the natural and probable consequence . . . Malice is presumed under such conditions," Nestlerode v U.S., 74 US App DC 276, 279; 122 F2d 56, 59 (1941).

 

WHAT IS NUISANCE?:

Text from Findlaw.com

Property Rights: My Neighbor is a Nuisance

There are two basic types of nuisance suits. These are private and public nuisance actions. A private nuisance means there has been a loss of the use or enjoyment of property without an actual physical invasion of that property. An action for a physical invasion of property is known as a trespass action. An example of a private nuisance would be where an individual failed to keep his dog kennel clean, causing the next-door-neighbors to experience unpleasant odors when they left their windows open and also prevented them from spending time in their backyard.

A public nuisance is one that has more far reaching effects. It has the ability to affect the health, safety, welfare, or comfort of the public in general. Examples of a public nuisance would be a factory that emitted bad odors or a racetrack that produced loud noise. Nuisances can often be both public and private. For instance, the lights from a baseball field may shine directly into the home of a neighboring property owner, causing a private nuisance. At the same time, the baseball field might cause excessive noise and brighten up the rest of the neighborhood, requiring the homeowners to keep their windows and drapes shut on summer evenings. This would constitute a public nuisance.

To see the entire Findlaw nuisance article

CLICK BELOW:

Findlaw on neighbors as a nuisance

 

CIVIL OWB CASE: STATE OF PENNSYLVANIA (1998):

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OWB Civil Case

This Court concludes that the defendants should be permanently enjoined from using their wood­burning stove.

ORDER AND DECREE NISI

AND NOW, this 6 th day of February 1998, it is hereby ORDERED AND DECREED that the defendants are permanently enjoined from using their wood­burning stove. Plaintiffs' claims for damages, counsel fees and costs are hereby DENIED.

PENDING LAWS/BILLS

NEW YORK STATE BILL NO. AO1982

Text of abstract:

Relates to regulating outdoor wood-burning devices; establishes outdoor
wood-burning devices shall be operated only between May first through September
thirtieth; establishes that outdoor wood-burning devices shall not be operated
within seven hundred feet of certain locations; establishes that outdoor
wood-burning devices shall not be installed or operated within two hundred feet
of certain residences.

Key Proposals:
No  person  shall  construct, install, modify, operate or use an outdoor
wood-burning device, unless such device complies with the following:

(1) Outdoor wood-burning devices shall only be operated between Septem-
ber 15 through May 15;

(2) An outdoor wood-burning device shall not be operated within seven
hundred feet from the occupied building of a hospital, school, daycare
center or nursing home or from the boundary of a municipal park or
recreational facility;

(3) An outdoor wood-burning device shall not be installed or operated
within two hundred feet from the nearest residence not served by an
outdoor wood-burning device;

(4) Only natural wood including, but not limited to, wood that has not
been painted, stained, chemically treated, laminated or glued may be
burned in an outdoor wood-burning device;

(5) The installation of a chimney of an outdoor wood-burning device must
be in accordance with applicable building ordinances and codes;

(6) The installation and operation of an outdoor wood-burning device
must be in accordance with the manufacturer`s written instructions and
in compliance with local ordinances;

(7) Dealers and sellers of outdoor wood-burning devices are required to
provide buyers with a written notice stating that only natural wood that
has not been painted, stained, chemically treated, laminated or glued
may be burned and household or other waste must not be burned in the
device;

Please click below to read the proposed bill:

CLICK BELOW:
New York State Assembly Bill Proposal for OWBs


Our frustation
is that despite all of the information available to our local government with regard to the studies, laws, and ordinances on the books, (see The Studies, Research, and Recommendations blog) we still are considered bad people because we want clean air to breathe.