Under our charter, the Kauai County Council has the power to consider and adopt ordinances. Bills for new ordinances are introduced on council meeting agendas by individual councilmembers.
Air quality on Kauai is quite good. The principal pollutant is automotive emissions. Other pollutants include open air burning, and vog from Big Island volcanic eruptions. Smoke from residential fireplaces is a minor component.
Early this year, Mr. Gary Hooser introduced Bill 2573, which proposes to establish as a public nuisance allowing air pollutants to “escape into the open air” from buildings or from open fires under the party’s control so as to cause injury to health or damage to property.
Mr. Hooser is an affable and compassionate man. But after public testimony given on introduction of the bill, issues on it were exposed and it was arranged that an amendment to the bill would be offered by another affable and compassionate councilmember, which narrowed the impact of the bill to smoke from some residential fireplaces.
The bill — as originally introduced and as proposed to be amended — contains critical defects.
First, the bill distorts the usual meaning of a public nuisance, which is that the occurrence be a matter of concern to the general public. Wood-burning fireplaces have been around for a long time.
Elsewhere in America they are commonplace and seasonally used with regularity. They provide supplemental heating in cool weather and gathering around the fireplace is symbolic of family congeniality.
On Kauai, such fireplaces are contained in a modest number of residences. It appears that there is quite a small number of persons who experience health problems from inhalation of smoke pollutants.
The vast majority, in most instances, do not experience adverse consequences from residential fireplace emissions. The alleged nuisance is simply not public as it is neither general nor widespread.
Second, the bill, as proposed with the amendment, is discriminatory. It would continue to constitute as a nuisance emissions from fireplaces, although they must now be contained in residences zoned with R-4 or higher density, but it would exclude other pollutants and smoke from other sources, such as outdoor barbecues and luaus.
If protection against smoke is being sought, why not give relief regardless of source?
Third, the bill assumes criminal intent if there is fireplace use and is inherently unfair to the many Kauai citizens who, in good faith, have wood-burning fireplaces complying with building codes in their residences.
To be deprived of usage of the fireplaces, which were included in the structure at significant cost, is a form of governmental taking without compensation.
Fourth, the enforceability of the proposed ordinance is dubious. Is it likely that people will set fires for the purpose of intentionally injuring others? And if it is reckless for smoke from a fire to injure someone, then why does the ordinance not simply outlaw use of fireplaces?
The suffering that a few people may have from smoke is a legitimate concern. But if it is to be addressed, those affected deserve a better reasoned and better written bill than the one offered.
The underlying reality is that Bill 2573 is special interest legislation designed to benefit a very small number of people.
Such bleeding-heart bills may be necessary and should not be ignored, but they impede consideration that the council should be giving to long-standing issues of general applicability, such as disposal of trash, improvement of roads and traffic, tax reform, county governmental deficiencies and others that impact all or a large number of our citizens.
Last week, I read in TGI that approval of restoration of the Coco Palms resort was to be delayed so that concerns about traffic and pedestrian safety could be considered.
Really? It has been almost 23 years since the Iniki damage to the resort and we are just now trying to come to grips with the traffic problems the regeneration of the resort will cause? Our council needs to redirect its priorities and give appropriate attention to the mainstream issues that are vitally important to us all.
I do not suggest that injury from smoke to persons who are susceptible should be discarded. But I do highly recommend that our council in selecting its agendas find a way so its attention is appropriately given to the major issues confronting our society.
Walter Lewis is a retired attorney who lives on Kauai and writes a regular column for The Garden Island.
