Chapter 15.16 — WOOD SMOKE NUISANCE

A. The City of Berkeley recognizes that while fireplaces and wood burning appliances are a desirable amenity, wood smoke consists of fine particles, which are regarded as a health hazard by both national and state health professionals. Air Quality Standards have been created identifying appropriately healthy maximum standards of particulates in the air. The operation of wood burning appliances therefore needs to be controlled so as not to cause significant health risks to residents who live near them.

B. The Environmental Protection Agency sets a limit of 7.5 grams of particulate emissions per hour, or equivalent, as a compliance level for wood burning appliances. Non-compliant wood burning appliances create local conditions that may significantly exceed particulate air quality standards and adversely affect nearby residents.

C. It is impracticable for a member of the public to demonstrate by measurements that intermittent operation of a wood-burning appliance has resulted in particulate concentrations that exceed air quality standards or create a health hazard. It is also impracticable for most individuals to simulate their local conditions in a computer model to determine whether operation of a wood-burning appliance will create or has created a health hazard.

D. Residents affected by wood smoke currently have no feasible recourse to limit or stop their exposure and potential health impacts.

E. It is necessary to provide citizens recourse when they are being unwillingly exposed to wood smoke and may be suffering health impacts.

F. Accordingly, this chapter defines the circumstances under which operation of a wood-burning appliances is likely to create a health hazard, declares such operation a nuisance, and provides a process that encourages resolution of disputes about such nuisances through informal meetings and mediation, before they may be taken to court. (Ord. 7063-NS § 1, 2008)

For the purposes of this chapter, the following definitions apply:

A. "Wood burning appliance" means any indoor fireplace, fireplace insert, or woodstove that burns wood or a wood product, but does not include a wood burning appliance used for cooking in a commercial food service establishment.

B. "Non-compliant" means any wood-burning appliance that does not meet EPA emission standards of 7.5 grams of particulate matter per hour as defined by the US Environmental Protection Agency in 40 CFR Ch. 1 (7-1-02 Edition) §60.532 (http://www.epa.gov/Compliance/resources/policies/monitoring/caa/woodstoverule.pdf).

C. "Complaining party" means any person who wishes to limit another person’s use of a wood-burning appliance.

D. "Wood burning appliance operator" means any individual, corporation or other entity operating a wood- burning appliance.

E. "Immediate neighbor" means a resident of a building on a parcel that abuts or confronts a property with a wood burning appliance or a building that has a direct line of sight from the highest residential floor to the source of the smoke, and who resides within 120 feet of a source of wood smoke. However a person is not an immediate neighbor if there is an impermeable surface, such as a wall or structure, which blocks the line of sight between the source of smoke and the top of the highest residential floor of the building in which resident lives.

F. "Smoke health hazard" means operation of a non-compliant wood-burning appliance or operation of a compliant wood-burning appliance in a manner not consistent with the manufacture’s instructions, including burning improper fuel.

G. "Particulate Matter (PM)" means very small particles consisting mostly of carbon. PM may be divided into many size fractions, measured in microns (one-millionth of a meter). California Air Resources Board (CARB) regulates two size classes of particles - particles up to 10 microns (PM10) and particles up to 2.5 microns in size (PM2.5). PM2.5 particles are a subset of PM10.

H. Improper fuel includes, but is not limited to, garbage, treated wood, non-seasoned wood, used or contaminated wood pallets, plastic products, rubber products, waste petroleum products, paints and paint solvents, coal, animal carcasses, glossy and/or colored paper, salt water driftwood, particle board, and any material not intended by a manufacturer for use as a fuel in a wood-burning device. Improper fuel may be evidenced by smoke or odor. (Ord. 7063-NS § 1, 2008)

The following procedures shall be followed in the resolution of disputes about smoke health hazards under this chapter.

A. Initial reconciliation: A person who believes that the operation of a wood burning appliance has created a smoke health hazard shall notify the wood burning appliance operator in writing, within 30 days of an occurrence of an alleged smoke health hazard. The letter of notification must include a description of the problem and a reference to this chapter. The notification should, if possible, be preceded by personal discussions to enable the complaining party and wood burning appliance operator to attempt to reach a mutually agreeable solution. Potential solutions may include: changing the frequency, duration, or timing of wood burning; using the wood burning appliance during certain weather conditions; or operating the wood burning appliance only when the complaining party is not at home.

B. Mediation: If an initial reconciliation attempt under subdivision (A) fails, the complaining party shall propose mediation, again in writing. The wood burning appliance operator may accept this proposal within 30 days. If the operator does not do so, the complaining party may file an action in Superior Court pursuant to subdivision (C) below. If mediation is elected, the parties shall mutually agree upon a mediator and split the costs thereof. If either party does not accept any City-subsidized mediation services that may be available, that party shall pay any additional costs for an alternate mutually agreeable mediator.

C. Binding arbitration: In those cases where the initial reconciliation process fails and where mediation has not resolved the dispute, the complaining party must offer to submit the dispute to binding arbitration and the operator may elect binding arbitration. The identity of the arbitrator shall be agreed upon by both the complaining party and the operator, who shall indicate such agreement in writing. The arbitrator shall follow the provisions of this chapter to reach a fair resolution of the complaint and shall submit a complete written report to the complaining party and the operator. This report shall include the arbitrator’s findings with respect to all standards listed in Section 15.16.040 and a list of all mandated remedial actions, with any appropriate conditions concerning such actions including a schedule by which mandates must be completed.

D. Litigation: In those cases where initial reconciliation and mediation fail, and binding arbitration is not elected, the complaining party may file an action in a court of competent jurisdiction for resolution of the smoke health hazard claim under the provisions of this chapter. The litigant must state in the lawsuit that arbitration was offered and not accepted. (Ord. 7063-NS § 1, 2008)

A. The mediator shall recommend or the arbitrator or court shall order such remedial action as may be necessary to prevent further smoke health hazards.

B. Remedial actions may not require, but may allow as an option, physical changes to the operator’s wood- burning appliance, chimney or property. (Ord. 7063-NS § 1, 2008)

A smoke health hazard under this chapter is not a misdemeanor or infraction, and the enforcement of this chapter shall be by private parties only. The complaining party shall have the right to bring injunctive action to enforce any restorative action ordered pursuant to this chapter. (Ord. 7063-NS § 1, 2008)

The Berkeley Municipal Code is current through Ordinance 8008-NS, passed May 12, 2026.

Disclaimer: The City Clerk’s Office has the official version of the Berkeley Municipal Code. Users should contact the City Clerk’s Office for ordinances passed subsequent to the ordinance cited above.

City Website: www.berkeleyca.gov

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