What About Growing Marijuana in Communities?

January 27, 2015

In recent articles, we explored the controversial topic of second-hand smoke and it continues to be a tough issue for HOA’s to navigate. This month, we decided to take a look at how growing marijuana is becoming more prevalent in managed communities and the challenges it brings. Take a look at this brief Q&A that provides some helpful tips for HOA Boards.

QUESTION: We have a resident who is growing a LOT of marijuana in her back yard. Our CC&Rs say no to this but if the state says it’s legal who is right?

ANSWER: Under the federal Controlled Substances Act, the cultivation of marijuana is prohibited. Most governing documents include a restriction that restricts an owner from using his property to engage in illegal or criminal conduct. If your CC&Rs include such a provision, growing marijuana is a violation and would subject the owner to disciplinary action by the association.

Medical Marijuana. What if the person has a prescription (also known as a “card” or “license”) for medical marijuana? Although federal law does not recognize a distinction between medical and recreational use of marijuana, California does. In 1996, marijuana was legalized for limited medical use. Under California’s Health & Safety Code§11362.77, qualified patients are allowed to cultivate up to 6 mature or 12 immature marijuana plants. Thus, if your resident has a prescription her pot farm is authorized under state law (provided she does not exceed the allowed number of plants).

Conflict of Laws. Obviously there is a conflict between state and federal laws. However, just because the state allows the growing of marijuana does not mean an HOA must allow it. It is still illegal under federal law, which makes it a violation of the governing documents if they contain a provision against illegal conduct.

Nuisance. If your documents do not prohibit illegal conduct, all CC&Rs have a provision against creating a nuisance. Regardless of the legality of the marijuana plants under state law, their presence may still be deemed a nuisance. Marijuana plants have a strong odor that some find extremely unpleasant, and several plants grouped together can produce an overwhelming odor for neighbors or passers-by. Also, they may attract criminal activity, a legitimate concern of the person’s neighbors. The strong smell as well as safety and security issues fall under the nuisance provisions of the CC&Rs.

RECOMMENDATION. Boards must make a business decision regarding enforcement. Just because an association can go after a pot grower does not mean it should. Directors must first decide if the plants represent a true nuisance, i.e., (i) Is there any criminal activity associated with the plants? (ii) Is the odor strong enough to really affect anyone? (iii) Do the plants represent a visual blight? (iv) How many people are impacted by the plants?

If only one person is complaining, and there has been no criminal activity surrounding the growing of the plants, and the number of plants is within prescribed limits, and in the board’s opinion the plants do not represent a nuisance, then the board can decide not to charge the grower with a CC&R violation no matter how loudly a neighbor might be complaining.

Read more:Growing Pot
from by Adams Kessler PLC. If your association needs legal assistance, call them at (800) 464-2817.