Condo Media - October 2011 - 31

by Stephen Marcus, Esq.

ake a deep breath these days, and you may detect the unmistakable, sweetly pungent aroma of marijuana — even if you’re not on a college campus or at a rock concert. Sixteen states (Rhode Island, Maine and Vermont among them) have enacted laws or approved Constitutional amendments legalizing medically-related uses of marijuana and 10 states (including Massachusetts) are currently considering medical marijuana laws. This trend — and it clearly is a trend — will pose unique challenges for community associations, further complicating already complicated and often contentious conflicts over whether and how to restrict smoking (of cigarettes) in common interest ownership communities. Boards will no longer be dealing only with owners who say they want to smoke and have a “right” to do so; they will also be dealing with owners who say they have a medical need for the drug and a doctor’s prescription allowing them to use it, or with “caretakers” who have a statutory right to grow marijuana for others. And non-smoking (or non-using) residents will not only be complaining about the annoyance and health risks of secondhand smoke; they will also be objecting to the presence of drugs in their communities. The courts haven’t provided any guidance yet on the legal questions

that marijuana battles are likely to produce. But complaints about marijuana will be similar in many respects, although not identical, to complaints about smoking and they can be addressed in the same ways — by enforcing nuisance provisions or amending the association’s bylaws to restrict smoking or to prohibit it entirely, in owners’ units as well as in common areas.

that their medical condition requires the drug and their inability to use it would be harmful to their health. They also will, almost certainly, insist that communities waive any smoking ban to provide the “reasonable accommodation” the Fair Housing Act requires for residents with a physical or emotional disability.

A Balancing Act
Boards should respond as they would to any fair accommodation request — on a case-by-case basis. Ask for written documentation from a doctor verifying the owner’s need for marijuana, and then seek solutions that balance the competing rights of the owner who “needs” the marijuana and owners who are objecting to it: • Ask if other equally effective medical remedies are available. If an owner requests a “comfort animal,” a board can argue that a small dog, or a cat or ferret would be a reasonable alternative to the pony the owner has demanded. Similarly, the board might ask if another drug would provide the same relief as marijuana. • Ask if the resident can ingest the marijuana (as an ingredient in brownies, for example) rather than smoking it. • Propose remedial actions — plugging vents or installing filters — that

Bylaw Is Best
The nuisance approach is easiest (boards don’t need owner approval to enact rules or interpret them), but it also is more vulnerable to a legal challenge. Courts tend to give more deference to bylaw amendments, because they require the approval of a super majority (usually at least 75 percent) of the owners and are thus viewed as a clear statement by owners of how they want to govern the community in which they live. A carefully worded amendment banning smoking of any substance anywhere in the community would cover marijuana, as well as tobacco. Like cigarette smokers, medical marijuana users will no doubt, object to these bans, but the battle lines will be different. The primary argument for a smoking ban is that secondhand smoke is not only annoying but potentially harmful to the health of non-smokers. Medical marijuana will turn that argument on its head. Users will insist

CONDO MEDIA • OCTOBER 2011

Condo Media - October 2011

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