Community Associations and Marijuana Use
By: Donna A. Zanetti, Esq.
Leach Johnson Song & Gruchow
On November 8, 2016 a majority of Nevadans approved the recreational use of marijuana. However, a substantial minority voted against it. Chances are your community association includes owners with strong opinions on either side of this issue. Medical marijuana has been legal in Nevada since 2001, but marijuana production, sales, distribution, and use are still illegal under federal law. Many CCRs contain a provision that any violation of federal or state law is also a violation of the CCRs. This creates an interesting dilemma for the Board.
The Nevada legislature should pass laws governing recreational use in the upcoming 2017 legislative session which may define the scope of both local and private control of recreational use. Currently, both the state and municipalities are involved in regulating medical marijuana. The state issues registration cards to medical marijuana users and regulates the production and distribution of the drug. Municipalities regulate zoning, land use, and signage within the scope permitted by NRS 453A. So how may legalized marijuana impact community associations? Consider these situations:
The board president receives a notice that the county is considering approving a recreational marijuana retail store about ½ mile from his home and wants the association to oppose this proposal.
Sarah owns the ground floor unit of a condominium which includes a small enclosed backyard. While inspecting, the manager notices a greenhouse containing marijuana plants in the backyard that is using commonly metered electricity and water.
John smokes marijuana to help him manage chronic back pain. He usually smokes on the back patio of his single family home. Recently, John’s downwind neighbors have complained about the smell of burning marijuana entering their home.
Whether an association may use assessments dollars to advocate for or against governmental actions depends on the association’s governing documents. Some documents specifically prohibit advocacy, while others are more broadly worded.
Under current law, a medical marijuana user may only grow up to 12 plants and, unless she cannot travel, must stop growing her own when a dispensary opens in her county and within 25 miles of her home. See NRS 453A.200
. So at a certain point, Sarah may no longer be legally entitled to grow marijuana at her home. Whether or not Sarah is legally entitled to grow, if Sarah’s greenhouse operation has caused a spike in commonly metered utilities, the Board may explore whether that increase can be passed on to Sarah. It may also enforce its covenants regarding architectural standards.
Under NRS 118, the state’s fair housing law, a person with a disability may have a fair housing claim if an association attempts to deny his right to use marijuana to relieve a disabling medical condition. Of course, the downwind neighbors may have a nuisance claim under the CCRs due to what may be considered a noxious odor. The Board will need to tread carefully between these competing claims. The law is clear that Boards cannot ignore neighbor to neighbor disputes. The Board must investigate and take the actions that are within its power, such as requesting that John demonstrate a nexus between his disability and the need to smoke (rather than ingest) marijuana or holding a hearing regarding the alleged nuisance violation. Keep in mind that NRS 116.3102(3) allows a Board to determine that it will not take enforcement actions if it determines that, under the facts and circumstances presented, the association’s legal position is weak, the covenant to be enforced is inconsistent with current law, the violation is not so material as to justify expending association resources or it is simply not in the association’s best interest to pursue enforcement. However, before relying on NRS 116.3102(3)
, the Board must determine the facts and make findings supporting its decision.
In conclusion, marijuana use will be a growing challenge for community associations. We encourage Boards to work closely with their corporate counsel when an issue arises.
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