This is a copy of an e-mail (with some minor modifications) that I sent to Mike Finchum after he offered to try to address some of my concerns regarding the proposed open air burning ordinance:
1.) More of a question: In § 72-6(C), § 72-6(C)(1), and § 72-6(D)(5) the ordinance refers to a Director position. In § 72-7, the ordinance states the Director position is the Director of Fire and Rescue: Does that definition also apply to the presiding sections? I just wanted to be sure who was responsible for those provisions.
2.) Definition of “built-up area” in § 72-3: What exactly does “substantial” development mean? It would make it difficult for an ordinary citizen to be aware of that definition off-hand. What that be something that the Zoning Administrator would be responsible for defining (subject to appeal to the Board of Zoning Appeals)? Or would it be the responsibility of the Director of Fire and Rescue, Sheriff’s Office, or the courts to define the term?
3.) In § 72-6(B), it states that “[o]pen burning is permitted on-site for the destruction of household waste by homeowners or tenants” if conditions are met. The definition of “household waste” in § 72-3 specifically includes “garbage” as defined in § 72-3, however § 72-6(B)(3) specifically prohibits the burning of garbage. So, would the burning of garbage be permitted or prohibited under that subsection?
4.) § 72-5(B) Exemptions: No exemption for the commercial preparation of food. Someone that is paid to do a barbecue for a party or event would be required to get a permit from the way I read this. The party organizer may not be required, but the person being paid would since he’s the one doing it for commercial purposes. Or even a bank or business that was holding a barbecue as part of an open house to attract customers would also be subject to that provision. Or a business like that barbecue place in Port Royal that has since closed. And I don’t see how a commercial barbecue preparer of food would not fall under the definition of “open burning” since he has no way to control the air intake nor the ability to control the emissions coming out of the grill (see § 72-3) just like a noncommercial grill (hence the exemption that is granted to noncommercial preparation).
5.) § 72-5(C): Land clearing needed for property maintenance is prohibited and the definition of “debris waste” is so broad that it would include say a tree that was cut down as well as its stump, and there’s no distinction between commercial and noncommercial land clearing (agricultural land clearing would presumably be exempt). Note that stumps and full-size trees and brush are not included in the definition of “trimmings” that have more lax restrictions in § 72-5(A). Also, does the Department of Fire and Rescue (assuming that the Director position mentioned is that of the Director of Fire and Rescue [see question 1]) have the time and personnel to come out and tell me how big of a debris pile I can create given they only have an Interim Director and the Captain position is vacant currently? And then there’s the requirement that citizens figure out which way the air fields are going and making sure winds are going towards any “built-up area”.
6.) § 72-6: Permitting process: How will it be done? Will the Director be giving out open-ended permits that he can cancel on a whim (“a specific period of time deemed appropriate by the Director”)? Without a clear permitting process it makes it difficult, not just for regular citizens, but businesses as well which may be relying on those permits to burn stuff as part of the course of business activities. And then you have concerns regarding how many manpower hours it will take for the Director to come to the conclusion regarding whether to issue the permit and, again, this is especially bad given the shortage of people at the Department of Fire and Rescue. Also, if I feel that I was unfairly denied a permit, is there any appeals process that I can pursue before the Emergency Services Commission, Planning Commission, or the Board of Supervisors?
7.) § 72-8: The class 1 misdemeanor (a year in jail and/or up to a $2,500 fine) I feel is excessive when the penalty for violations of the state’s spring and fall burn bans are only a class 3 misdemeanor (no jail time, up to a $500 fine). While the Sheriff’s Office has stated that they will engage in selective enforcement of the ordinance that’s not much of a guarantee when there could, hypothetically, be a change in leadership at the Sheriff’s Office in a couple years. It also does not prevent a private citizen from going to the magistrate and having a warrant sworn out against his neighborhood just to antagonize the neighbor. From what I can find online, there are no restrictions on the issuance of citizen warrants for ordinances that are punished as misdemeanors. In fact, according to an opinion from the Office of the Attorney General dated February 18, 1997, they are specifically permitted.