Dear Counselor: Where’s the beef?

Question: My wife and I have been having neighbor issues recently. Our neighbor has a meat smoker in his backyard. It puts out a fair amount of smoke and odors that waft across our yard. It doesn’t seem like such a big deal when our windows are all closed, but it is really annoying when the windows are open. It is really unpleasant when we are trying to relax outside.

I have tried to raise the issue with our neighbor, but he’s not an easy guy. I’ll spare you the details, but it ended with the two of us in a heated argument with raised voices. He even threatened to call the cops and file a restraining order. I laughed it off, but I feel like I should file one against him because it now seems like he kicks up the smoker solely to annoy me. Is there anything that I can do about this?

Answer: Just as our skies are beginning to clear of wildfire smoke and we no longer smell like a campfire, you now have to endure smelling like a rack of barbecued pork ribs. It’s not right.

Your legal claim against your neighbor is that he is causing a nuisance. California property law defines a nuisance as something that is “indecent or offensive to the senses” that “interfere(s) with the comfortable enjoyment of life or property.”

Whether you can get a judgment against him depends on the evidence and your ability to prove his unreasonable behavior. Would the smoke that you are talking about offend an ordinary person’s senses? Or are you just the #BBQBecky of Davis?

The determination will be made based on the amount of smoke and the type of odor that is pouring over the fence. From an objective point of view, it should be something that the average person simply would not tolerate. The next time the smoker is running, you should film the smoke coming over the fence. You may also want to bring a few witnesses over to experience it firsthand. Depending on the evidence, you may have a good case for private nuisance. But if it appears that the smoke is just a minor annoyance, then your case may not be so hot.

Although the city of Davis Municipal Code contains provisions on nuisance that restrict the emission of smoke from heating stoves, there is no explicit mention of barbecue smoke control. So you may not be able to rely on the city authorities to shut down the activity.

Although you mention that the two of you spoke about restraining orders, it doesn’t sound as if that will be appropriate. A civil harassment restraining order is issued by the court to prevent “harassment,” which is defined as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.”

Unless the discussion between you and your neighbor ended in threats, the court will not likely issue a restraining order. It may seem as though his continued use of the smoker — in light of your complaints — is a form of targeted harassment, but the law requires “serious” harassment with “no legitimate purpose.” Even if the smoke constitutes serious harassment, your neighbor’s legitimate purpose is cooking up dinner.

You should try to repair the lines of communication with your neighbor to resolve this situation as it really should not go to court. A possible resolution might include limiting his smoking to certain times that won’t interfere with your use of your own backyard or moving the smoker to a different part of his yard. If you are not able to resolve this situation on your own, you may want to enlist an attorney’s help. Your neighbor might respond differently to the situation when dealing with someone else.


Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.

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By |2018-09-10T21:18:10+00:00August 31st, 2018|Dear Counselor|Comments Off on Dear Counselor: Where’s the beef?