Posted on 01/24/2004 9:17:05 AM PST by mylife
Couple demands halt to neighbor's smoking Restraining order sought over nuisance to health By Phil Trexler Beacon Journal staff writer
Robert Zangrando has had it up to his chest, nose and eyes with his neighbor's smoking and he's taking her to court to get her to quit.
Zangrando, a retired University of Akron history professor who lives in Stow, was in Summit County court Thursday with his wife and lawyer.
Together they are seeking a restraining order against his next-door neighbor, Nicole Kuder, 28, that would prohibit her from smoking outdoors within 30 feet of her condominium.
Zangrando, 71, and his wife, UA instructor Lisa A. Pace, contend the smoking affects their health and has become a nuisance.
Before the hearing, Kuder said, ``I have tried to accommodate them, and this is the result.''
The couple's attorney, Ed Gilbert, called the situation an emergency and wanted Common Pleas Judge Marvin Shapiro to rule immediately on the restraining order request. Shapiro declined because Kuder came to court without an attorney.
Akron attorney Tom Adgate was retained by Kuder just before the hearing and was unable to attend. Shapiro delayed ruling until the hearing resumes Tuesday with Kuder and her attorney.
Kuder and Zangrando have been neighbors in a condominium complex on Higby Drive for about two years. Their two-story units are separated only by a shared wall. They share a front porch, and a wooden fence separates their back doors.
Zangrando said his neighbor's cigarette smoking is apparent whenever he opens a window or steps outside his home. He said the fumes compromise his health, causing him to wheeze and cough.
He said he suffers from lung problems, including emphysema, and has had asthma in the past. He said the smoking is such that he is reluctant to let his dog or two cats outside.
``It hits you right away, the minute you walk out the door. It catches me, I start coughing, I know she's smoking, I can see she's smoking visually, and I can get the effects of the smoke when I inhale what should be fresh air in my own back patio,'' Zangrando told the judge.
Kuder rents the condo she and her family live in and is not permitted to smoke inside the unit. Zangrando and Pace have owned their unit since marrying in 1996.
``It's a constant reality. She's out there smoking, and I have been appealing to her since she first moved: Please, if you're going smoke, would you move away from the house because the fumes come in our house, and we no longer have discretionary use of our house,'' Zangrando told the judge.
He said he has tried for more than a year to convince Kuder to smoke elsewhere, to no avail. He said he tried to reach an agreement in October, but Kuder and her husband, who does not smoke, refused to sign.
Kuder said Zangrando wanted her to walk to a nearby parking lot to smoke. She said he snoops on her, photographs her movements and has yelled at her to ``go, kill my family'' with her cigarettes.
``I tried to be nice and go out back and compromise, but they constantly harass us,'' Kuder said outside court. ``There have been times when I've had friends over, and he comes out screaming at us. It bothers me, but at the same time, I try to be a respectful smoker.''
I know what you mean. I have severe asthma and I can't be around cigarette smoke. So I choose to live in a single family house with a large yard. I'm not about to take away other's freedoms on a whim.
Funny. That's just how I feel about people who brush their hair or use cell phones while they drive. Or any other activity that takes their attention from the road. I think permanent and irrevocable loss of driving privileges is in order for such selfishness.
I have a history of respiratory infections and have had asthma attacks. I am also sensitive to chemical pollutants. I don't like using air conditioning or heat unless absolutely necessary, preferring fresh air, not to mention keeping the bills down, and live in a climate where neither is really needed much of the year. Problem is, there is a paper mill on the south side of town and many times, when the wind is right, the smell, along with whatever toxic chemicals may be in the air, gets to be overwhelming and it is just about impossible to breathe and I have to close the windows and turn on the AC. And all this time I didn't realize that what I really should be doing is suing the paper mill for posing a threat to my health and causing my electric bill to skyrocket.
The point is, unless you are independently wealthy, anywhere you live is going to come with things you don't like and are not necessarily healthy. You choose the trade offs. If later you decide you can't handle it, you move. You don't impose your will on everybody else.
So whats with the all the incense?
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That's a loaded question given some of the control freaks on this thread.
As an attorney, I would think that you would be aware that whether or not the retired professor has legal recourse has yet to be determined by the court.
The court shouldn't have let the case be heard.. Smoking is allowed on the condos common grounds.
The court may find in favor of the plaintiff, the defendant, or (probably less likely) simply dismiss the case on either legal or jusisdictional grounds. Laws regarding smoking and so called 'smokers rights' are in a state of change. Hopefully, the losing party will take it through the appellate process and get a valid legal precedent, no matter who wins.
You are encouraging a scofflaw, [the nutty professor] and his slimball legal advocate to harrass an innocent neighbor through our totally corrupted 'legal' system..
For shame. -- This is not conservatism.
My reply to 'etb' at # 198:
"-- Their two-story units are separated only by a shared wall. They share a front porch, and a wooden fence separates their back doors. Here we have a guy on his OWN private property, who cannot escape the fumes from the renter next door."
64 -r9etb-
Only the interior of his condo is the guys "OWN private property".. -- Under the associatons rules, the rest of the surrounding condo property is owned in common.
Apparently the associations rules allow smoking in/about the complex.. -- Thus the nutty professor has no legal leg to stand on.. He bought into the condo fully aware that his neighbors could smoke him out..
Case closed..
While I don't agree that it's right, I think it probably falls under the same premise as being able to exclude children, pets, waterbeds, etc.
Correction: should be "where you can't control..."
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