Category: Caroline County Board of Supervisors

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.

When I wrote my post yesterday about the proposed open burning ordinance I was not aware that it was an adaptation of the Air Pollution Control Board’s model ordinance. According to Mike Finchum, Director of Planning and Community Development, the Control Board told county staff that they were not allowed to change certain provisions of the ordinance that would result in more lax restrictions than were in the model ordinance. As I recall, the only provision that was changed from the model ordinance was that citizens should notify Caroline County Communications before they burn anything. As such, the stated purpose and writing of the ordinance was not the responsibility of the Board or county staff as a whole.

Last night, the Board decided to hold off adopting the ordinance due to concerns that they had, as well as a couple points that I made during the public hearing.

Addendum: When I wrote this post yesterday about the proposed open burning ordinance I was not aware that it was an adaptation of the Air Pollution Control Board’s model ordinance. According to Mike Finchum, Director of Planning and Community Development, the Control Board told county staff that they were not allowed to change certain provisions of the ordinance that would result in more lax restrictions than were in the model ordinance. As I recall, the only provision that was changed from the model ordinance was that citizens should notify Caroline County Communications before they burn anything. As such, the stated purpose and writing of the ordinance was not the responsibility of the Board or county staff as a whole.

Last night (2009-05-12), the Board decided to hold off adopting the ordinance due to concerns that they had, as well as a couple points that I made during the public hearing.

And these go much farther than the regular statewide regulations (PDF).

And consider this: According to the Virginia Department of Forestry, only two other jurisdictions in the state have local burning regulations in place: Roanoke County and Isle of Wight County.

The public hearing for the proposed ordinance is today at 7:30 p.m.

Thoughts (broken done by section):

§ 72-2. Purpose:

The purpose of this article is to protect public health, safety, and welfare by regulating open burning within Caroline County to achieve and maintain, to the greatest extent practicable, a level of air quality that will provide comfort and convenience while promoting economic and social development.

If the county was so concerned about the health and welfare of its citizens when it comes to the air quality in the county, they should be sending letters to the folks at Fort A.P. Hill every day or filing a lawsuit for violation of the Clean Air Act. It seems to me that Fort A.P. Hill likes to burn stuff every other day this year. Do you know how annoying that gets when you go outside and you have to smell the smoke and have to put up with the haze that is created by it?

And the hilarious thing was that Fort A.P. Hill was burning stuff during the day when everyone else in the state couldn’t because of the statewide fire burn. Remember back in the ’90s when they lost control of one of their “control burns” and they had to shut down Route 301 because it was burning across and by the road? Even this year, visibility was close to zero driving up Route 301 towards Port Royal at night due to the smoke.

And the folks on the Board of Supervisors or in the county government think the pressing concern is Jim Bob burning some stuff in his yard?

Portion of § 72-3. Definitions:

“Built-up area” means any area with a substantial portion covered by industrial, commercial or residential buildings.

The term “built-up area” is used to determine whether someone should be approved or denied for a permit to burn and other stuff (more on that later). However, what exactly does the word “substantial” mean in that definition? It doesn’t provide a minimum population distribution, building distribution, or square footage distribution, per square mile. What someone from Wyoming considers “substantial” development is going to be a lot different than what someone from New York City considers “substantial” development.

Also note the following two definitions for later reference:

“Garbage” means readily putrescible discarded materials composed of animal, vegetable or other organic matter.

[…]

“Household waste” means any waste material, including garbage, trash and refuse derived from households. For purposes of this regulation, households include single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds and day-use recreation areas. Household wastes do not include sanitary waste in septic tanks (septage) which is regulated by state agencies.

Onward to a portion of § 72-5. Exemptions:

The following activities are exempted to the extent covered by the State Air Pollution Control Board’s Regulations for the Control and Abatement of Air Pollution:

B. Open burning for camp fires or other fires that are used solely for recreational purposes, for ceremonial occasions, for outdoor noncommercial preparation of food, and for warming of outdoor workers;

So, a regular citizen can still hold a barbecue, but if he hires someone to do the barbecuing for him (say for a party), the person hired would be required to get approval from the Director of Fire and Rescue (no offense to the person currently in that position on an interim basis, Mark Garnett, of course), since it’s being done for a commercial purpose.

And what if a business wants to hold a barbecue as part of an open house or some such? Since that would be for commercial purposes as well, they would also have to get approval from the Director.

It’s also a damn good thing that the barbecue place in Port Royal went out of business otherwise this ordinance could have put them out of business.

Now to § 72-6. Permissible open burning:

B. Open burning is permitted on-site for the destruction of household waste by homeowners or tenants, provided that the following conditions are met:

[…]

3. Garbage is not burned; (and)

Remember those definitions that I pointed out above? The term “garbage” (defined as “readily putrescible discarded materials composed of animal, vegetable or other organic matter”) is included in the definition of “household waste”. So, they say you can burn “household waste” (which includes “garbage”) but then say you can’t burn “garbage”. So, insistently, you couldn’t burn any organic waste that is generated by your household under this section.

From the same section:

C. Open burning is permitted on-site for destruction of debris waste [defined as “wastes resulting from land clearing operations. Debris wastes include but are not limited to stumps, wood, brush, leaves, soil and road spoils” in § 72-3] resulting from property maintenance, from the development or modification of roads and highways, parking areas, railroad tracks, pipelines, power and communication lines, buildings or building areas, sanitary landfills, or from any other clearing operations that may be approved by Director, provided the following conditions are met:

1. All reasonable effort shall be made to minimize the amount of material burned, with the number and size of the debris piles approved by Director;

2. The material to be burned shall consist of brush, stumps and similar debris waste and shall not include demolition material;

3. The burning shall be at least 500 feet from any occupied building unless the occupants have given prior permission, other than a building located on the property on which the burning is conducted;

4. The burning shall be conducted at the greatest distance practicable from highways and air fields,

5. The burning shall be attended at all times and conducted to ensure the best possible combustion with a minimum of smoke being produced;

6. The burning shall not be allowed to smolder beyond the minimum period of time necessary for the destruction of the materials; and

7. The burning shall be conducted only when the prevailing winds are away from any city, town or built-up area.

In short, this subsection requires you to request a permit from the Director (see § 72-7), get permission on how much and what you can burn, and figured out which way the “prevailing winds” are so the smoke doesn’t blow towards any “city, town or built-up area” (and remember how vague the term “built-up area” is) before you can simply burn a stump or other “debris waste”.

§ 72-7. Permits.

This lengthy section deals with the process for approving permits by the Director.

Here’s the important part: A “permit may be issued for each occasion of burning or for a specific period of time deemed appropriate by the Director.” What exactly is “a specific period of time deemed appropriate by the Director”? Does that mean the Director can arbitrary cancel or revoke someone’s permit on a whim if he deems it “appropriate”?

And the worst part about that section is if the Director denies you a permit, there’s no appeals process. You can’t go to the Planning Commission or the Board of Supervisors looking for a permit if the Director refuses to issue one. Again, no offense to Mark Garnett, but that doesn’t cut it for me.

§ 72-8. Penalties for violation:

A. Any violation of this ordinance is punishable as a Class 1 misdemeanor, in accordance with § 15.2-1429 of the Code of Virginia.

B. Each separate incident may be considered a new violation.

For those unaware, a Class 1 misdemeanor is punishable by up to a year in jail and/or a fine not more than $2,500. So, have fun when you get arrested for not getting a permit to burn a stump on your property or when you’re barbecuing for commercial purposes.

And who will be responsible for enforcing this act? The Sheriff’s Office who is forcing employees to take week-long unpaid furloughs?

Or the Department of Fire and Rescue? Are they that hard-pressed for work? If so, they need to lay some people off over there…

Some General Thoughts

Am I the only person that thinks that this act would be in direct conflict with the “rural preservation” and “agricultural preservation” areas of the county? After all, those areas were created supposedly to preserve the rural and agricultural nature of portions of the county. But now, we have the government coming in telling property owners if they want to burn a stump, they have to get a permit from the government among other asinine requirements. Something that people have been doing in this county for centuries going down the drain because of those geniuses on the Board of Supervisors.

The Caroline County Board of Supervisors voted 3–2 Tuesday night to increase the rates for water and sewer service on the county’s utility system.

For years, this system has failed to be self-sufficient, requiring last year approximately a $300,000 subsidy from the general fund. The general fund is, of course, from taxes that all citizens pay. So, the folks in Bowling Green, Port Royal, Damn, etc. have been getting taxed at a higher rate than necessary — the equivalent of a whole cent on the tax rate last year — so the poor little folks in Ladysmith and Ruther Glen didn’t have to pay more on their water bill.

I’m curious, has the county ever subsidized any citizen’s cost for maintaining a septic tank? Hell, they want you guys to have your septic tank pumped every two years or whatever at your cost.

Has the county even paid for someone’s electric bill which is used to power your water pump to get water from your well? Let’s see…uh, hell no.

And last year, those lovable geniuses on the Board decided that it would be a good idea to increase the cost of one-time connection fees — which is supposed to go to pay off the system’s debt — so the money could be diverted into the operating fund for the system. “Wow, let’s use one-time money to pay for continuing expenditures on a system!” Sounds like something the federal government would do, no?

The two supervisors that voted against the increase, Wayne Acors and Floyd Thomas (note that the majority of the system’s users are in their districts), voted against the increase saying, according to The Free Lance–Star, “they would prefer to see the rates change at a slower pace instead of hitting residents all at once.” ((Portsia Smith. “Caroline changes water, sewer rates”. The Free Lance–Star 12 Mar 2009. The Free Lance-Star Publishing Co. 12 Mar 2009 <http://fredericksburg.com/News/FLS/2009/032009/03122009/451713>.)) Wow, so the county should continue to subsidize citizens’ water bills when public safety positions are getting unpaid furloughs and the Planning Department just got six positions axed.

Absolutely brilliant…