The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of final judgment. Dkt. #27.
Currently before the Court are motions for summary judgment on behalf of the Sherman Central School District (Dkt. #31), the County of Chautauqua and Robert Berke, M.D., individually and as Commissioner of Health of the County of Chautauqua Department of Health (Dkt. #32), and John Tallman. Dkt. #36. For the following reasons, the defendants' motions for summary judgment are granted and the plaintiff's motion is denied.
Plaintiff resides at 109 Columbia Street in the Village of Sherman, County of Chautauqua. Dkt. #36-21, ¶ 2. His residence is contiguous to an elementary and high school commonly known as the Sherman Central School. Dkt. #36-21, ¶ 3. In 2003, plaintiff installed an outdoor wood boiler adjacent to his garage and approximately 50 feet from the elementary wing of the Sherman Central School. Dkt. #32, ¶ 4; Dkt. #41-10, ¶ 29. According to plaintiff, the outdoor wood boiler consists of a stainless steel structure, measuring approximately three-feet long, six-feet wide, and five-feet tall, with an internal firebox surrounded by a water jacket and a chimney which extends seventeen feet above the ground. Dkt. #41-10, ¶ ¶ 13 & 17. The heat produced from the fire warms the water which is them pumped through pipes underground and into plaintiff's residence. Dkt. #41-10, ¶ 14. Plaintiff began to use the boiler during the end of November, 2003. Dkt. #32, ¶ 5.
Teachers, school employees and parents of children within the school began to complain about the smell of smoke in the cafeteria and certain classrooms on or about November 20, 2003. Dkt. #36-6, pp.13-15, 31; Dkt. #37, ¶¶ 10-20; Dkt. # 41-4, ¶¶ 14-17. On December 4, 2003, Pamela Warner wrote the following letter to Dr. Howard Ferguson, Jr., Superintendent of the Sherman Central Schools:
I am writing to you regarding the severe problem with . . . the air quality in my classroom. On Monday, December 1, [t]he smell of wood smoke in my classroom was extremely strong and bothersome. I developed a severe headache and went home smelling very strongly of smoke. On the two following days, the smell of smoke was not a problem. I presume this is because of wind direction.
Again, today, the smoke smell in my classroom was so strong that it burned my eyes and throat. Again, I developed an immediate headache. I requested that the air unit in my room be turned off to prevent the smoke from being drawn in. That helped the situation somewhat, but the problem has not been eliminated. Aside from concerns with my own health, I have children in my class who suffer from asthma and severe allergies. The air quality in the classroom cannot be good for them. I am not sure how these children or I will be able to tolerate the strong smoke smell throughout the winter nor how the health of these children might be adversely affected.
I understand the need for the school to be a good neighbor to the surrounding families, but I also believe that the school's neighbors need to be cognizant of the need to protect the health of the children whom we serve. It is obvious that the neighbors need to heat their homes, but at what expense? I know this is not an easy problem to solve, but hopefully we can develop a creative way for everyone to be warm, comfortable, and healthy during the coming months.
At Dr. Ferguson's request, the Superintendent of Buildings and Grounds, Steven Persons, sought assistance with this problem from Kevin Cole, Village of Sherman Code Enforcement. Dkt. #31-4, ¶ ¶ 33-36. Mr. Cole advised Mr. Persons that there wasn't much he could do about the situation because there was no law regulating the use of wood burning boilers. Dkt. #36-8, p.12. However, Mr. Cole contacted William R. Pippine, P.E., Regional Engineer for the New York State Department of State, who, by letter dated December 5, 2003, advised the Village of Sherman of the following:
After numerous discussions and previous site visits, regarding the use of free standing wood fire boilers, we visited the Sherman Central School on December 4, 2003 and met with Steven Persons, Superintendent of Buildings and Grounds and Howard Ferguson, School Superintendent. The school had complained that smoke from the free standing wood fired boiler at 109 Columbia Street was smoking and causing problems for the school. Prior to the meeting, we visited 109 Columbia Street.
I concur with your determination that the boiler at 109 Columbia has been installed and is being operated in accordance with the provisions of the New York State Fire Prevention and Building Code. The smoke from the boiler is consistent with its correct usage. The fuel being burned is fire wood and not inappropriate debris.
It is noted that the smoke problem in the school can be attributed in part to the type of ventilation system used by the school and to turbulence caused by the down wind shadow of the school building itself. These are design issues that should have been addressed by the school during the construction of their addition.
School representatives contacted Steve Johnson at the Chautauqua County Department of Health regarding this situation in December of 2003. Dkt. #32, ¶ 10. Mr. Johnson advised the school to document the problem. Dkt. #32, p.63. In a memo dated December 8, 2003, Dr. Ferguson advised faculty at the school of the following:
As you all may know, we have had some wood smoke in the building as a consequence of an outdoor wood stove located on property which directly abuts the property of our school district. As a consequence of this smoke, I have been in conversation with the Chautauqua County Department of Health. Mr. Steve Johnson of the Department of Health has been very helpful in attempting to aid our reviewing this issue. As a result of my conversation with Mr. Johnson, I would ask those of you who are seeing effects in your classroom to begin keeping a log. That log should include the date and time of any smoke or odor. It should also comment on whether or not you can track the odor directly to the outside smoke source. This, of course, can only be done to the best of ...