Neighbor burns trash - I'm in the city, he's not (HOA, houses)

[timfountain]

I suspect the answer is I am SOL but I thought I'd ask. The subdivision I live in is inside the RR city limits and we aren't allowed to burn trash or have any fires (which is fine by me). I believe this is a RR thing and it is certainly an HOA rule. My back fence is the city limits and my neighbor behind my house is in Williamson co and not in the subdivision or in an HOA (they are older houses). He has about 2 acres and is at the end of a long unmade road. Fairly often he makes a huge fire with all his trash and garden rubbish which smolders for days on end. The fire is in the same spot and is about 12ft from my fence. Of course with the prevailing southerly wind, most of the time noxious fumes and ash blow across my yard and many of my neighbors. I am worried that he is burning material that may be releasing toxic fumes that could be damaging to me and my family. In addition I am totally unable to use my yard and pool due to the smoke and ash.

So here's the question, do I have any recourse get this guy to stop? I do not really know him, we have exchanged pleasantries over the fence and he seems like a reasonable guy but before I talk to him I want to get an opinion on whether I have any grounds to backup my request.

Thanks

- Tim

[atxcio]

I'd call the county, the TCEQ, and EPA offices and ask them about your situation. There is probably something that would cover noxious fumes / toxic waste burning, and at least you could find out if he's actually doing anything illegal.

With 2 acres, I imagine he's not within a MUD or HOA of any kind -- otherwise those people might be able to enforce some rules. Without a city or one of those other entities, you are basically left to sue him to make him stop.

Of course, you could also talk to him about it. Ask him to move his burn, or do it on days with no wind...

Are any of your other neighbors affected by this? Are you in an HOA that might be in the position to do something if several of the homes are affected? Perhaps your HOA could deem in a nuisance enough to pay for his trash removal (so he doesn't have to burn..)

[oldtoiletsmkgdflrpots]

Search Results

That site might help. There are county laws regarding outdoor burning. You don't need an HOA to deal with it but that is your choice. It's a Williamson county site search on "burning". (search results) There is a guy behind us that likes to burn and let it smolder too. He is in an HOA that has five acre lots.

It's interesting that an HOA could have the power to "deem" something a nuisance that isn't in their web of control. They are not law enforcement.

[TexasHorseLady]

Here's a question. Did the neighbor live there before your neighborhood was built and is he doing something that he was doing all along?

And I, too, wonder at an HOA thinking they have any authority whatsoever over someone that is not a member of their HOA. That IS hubris!

From the site that oldtoiletsmkgdflrpots linked to, it appears that in Williamson County "illegal burning" consists of burning specific banned items (there's a list) and burning during a burn ban. So if there's not a burn ban, and he's not burning any of the banned items, you may not have a case.

[IC_deLight]

Thank you TexasHorseLady and oldtoiletsmkgdflrpots!

Unfortunately, there are far too many folks who believe that the HOA corporations are true governments - but they are not nor should they be given such authority. They are "private persons" under the law. Only the people whose property is burdened by these abominations are considered second class citizens subject to "governance" by an unaccountable private corporation board. Fortunately the person with the right to burn is not a second class citizen, nor is he obligated to reduce himself to such.

As oldtoiletsmkgdflrpots has pointed out, there are ordinances at the county level regarding burning - when you can burn and what you are not allowed to burn. In addition, there is nuisance law.

The HOA corporation burdening your property burdens your property, not that of the adjacent owner. Nonetheless, you could certainly ask if he would consider relocating the burn pile because of the proximity to your wooden fence and the odors and particulate matter that interfere with your use and enjoyment of your property. Threats or suggestions coming from the HOA corporation are likely to be routed to precisely where they belong - into the trash for subsequent disposition on the burn pile!

With respect to nuisance, there are generally two forms of nuisance: per se and in fact.

Per se nuisance is usually reserved for something that is a nuisance no matter where it is located (e.g., a toxic waste site). A burn pile might not be classified as a per se nuisance although the ordinances within the neighboring cities suggest that some consider operational burn piles to be a per se nuisance.

On the other hand, a nuisance in fact is often geography, or situation-dependent and is defined as "a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities". Nuisance in fact is typically presented as a non-trespassory invasion of your property by light, odor, sound, dust, etc. A nuisance in fact may exist because of the circumstances of a fire near wooden fences and your home. The fire presents two concerns: the odors and particulates that it gives off when it burns and the risk of spreading to your property either directly or via airborne cinders. You might want to research a reasonably recent Texas Supreme Court case on nuisance: Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269 (Tex. 2004). The court notes that "foul odors" may constitute a nuisance. Accordingly, you could focus on the odor (even if not "foul") and the particulate (comparable to "dust").

[JayBrown80]

Originally Posted by oldtoiletsmkgdflrpots

Search Results

That site might help. There are county laws regarding outdoor burning. You don't need an HOA to deal with it but that is your choice. It's a Williamson county site search on "burning". (search results) There is a guy behind us that likes to burn and let it smolder too. He is in an HOA that has five acre lots.

It's interesting that an HOA could have the power to "deem" something a nuisance that isn't in their web of control. They are not law enforcement.

I think if you reread Atxico's response about HOAs, he specifically said that maybe the HOA will deem it a nusiance and therefore offer to remove the neighbors trash for him. Seems like a neighborly thing to do really, and nice because then no one has to sue anyone else, or involve the authorities. If only we could solve all or our problems that way.

I know there are 100s of people on this forum that love nothing better than to bash HOAs, but there is nothing untoward going on here. Atxico simply said that maybe whatever garbage removing service that may be provided by the HOA, could be extended to this non HOA neighbor thereby removing his need to burn trash in his yard. Whether such a thing is available or not, I don't know.

In this case he is advising the OP to use all the tools available to him. I don't see him saying "get your HOA to FORCE THIS GUY TO STOP". Basically it was a very nice solution.

I am not saying you are anti-HOA of course. But there are people on city-data who once a day do searches for the word "HOA" and then post on every thread that mentions them just positively ranting and raving about how evil they are. Sometimes HOAs are a PITA, this doesn't seem to be one of those cases though. I think it is just a much a PITA to be so litigious. I am not saying you are litigous oldtltsmkgdflwrpts, you are cool in my book. But some of the other repliers on this thread just love to complain.

Why is it that the first thing that popped into our minds upon reading atxico's rather innocuous suggestion was "WHO DO THESE HOA'S THINK THEY ARE!!! WHAT HUBRIS!" It just seems that people are a little quick on the draw, when it comes to HOAs.

[oldtoiletsmkgdflrpots]

Originally Posted by JayBrown80

Why is it that the first thing that popped into our minds upon reading atxico's rather innocuous suggestion was "WHO DO THESE HOA'S THINK THEY ARE!!! WHAT HUBRIS!" It just seems that people are a little quick on the draw, when it comes to HOAs.

I don't agree at all. Thankfully there were people on here to warn me of the HOA and the power they think they have. It's bad enough they control their own neighborhood but to even suggest they can control another neighborhood under the guise of being "neighborly" just gets my goat.

And furthermore, this is nothing against the person making the suggestion about the HOA. It's about the HOA itself...NOT the person making the suggestion. Please, don't personalize it.

I don't think people are quick enough on the draw.

[JayBrown80]

Originally Posted by oldtoiletsmkgdflrpots

I don't agree at all. Thankfully there were people on here to warn me of the HOA and the power they think they have. It's bad enough they control their own neighborhood but to even suggest they can control another neighborhood under the guise of being "neighborly" just gets my goat.

And furthermore, this is nothing against the person making the suggestion about the HOA. It's about the HOA itself...NOT the person making the suggestion. Please, don't personalize it.

I don't think people are quick enough on the draw.

Okay, well more power to you. I was simply trying to give you the benefit of the doubt and not accuse you of paranoia.

So, if my neighbors dog is a nusiance, barking his head off because she works all day. And I, rather than calling the cops, go to her and say "Hey, do you want me to walk your dog for you when I walk mine, give him a bit of excercise?" Then according to you I am "suggest<ing> they can control another neighborhood under the guise of being 'neighborly'"

So, if the OP goes to his HOA, and says "8 different households are affected by this. We pay dues to you. Can you take some of that money we pay you in dues, and offer to have this mans trash removed from him free of charge, there by removing his need to burn it" then that HOA is "controlling another neighborhood".

Yeah, okay. Whatever.

There are actually bad HOA's out there that abuse their power. And they get away with it because people are too busy wasting time crying wolf on innocuous things.

Also, how did I personalize anything? I did not say one thing that about people attacking Atxico, only that I think they misunderstood his suggestion. I specifically said that people bash HOAs. Oh well. There is no use explaining. People who are paranoid about HOAs see attacks in every dancing shadow. This thread is obviously going to turn into certain posters twisting words around to fit their preconcieved notions of how evil HOAs are, so there is no need for me to get in an argument with you. You have already reached a conculsion.

We will just have to disagree. You are of an opinion "All HOAs are evil, every post with the word HOA in it needs to be a call for arms to point out the evils of HOA's". I am of the opinon "I don't think that's what Atxico meant". We are not even talking about the same thing. But by all means, enjoy your soapbox. Have a nice day.

[eileenkeeney]

If it were my yard, I would probably get some huge fans, and blow the stuff toward their house.
Hopefully your own HOA does not prevent you from placing huge fans in your backyard.

Having neighbors that do not have to follow the same HOA rules you do, pretty much eliminates the advantages of an HOA, doesn't it.
This pretty much devalues the property on the edge of the HOA boundary.

[eileenkeeney]

Originally Posted by JayBrown80

So, if the OP goes to his HOA, and says "8 different households are affected by this. We pay dues to you. Can you take some of that money we pay you in dues, and offer to have this mans trash removed from him free of charge, there by removing his need to burn it" then that HOA is "controlling another neighborhood".

.

Wow, I really like that solution.
I like that even better than my own idea.