With the legalization of the recreational use of marijuana in Colorado, there are new legal concerns that may arise. One of these is how homeowner associations can monitor and control the use and growth of marijuana in their neighborhoods. Individuals on both sides of the issue may be unsure of where the rights of the homeowner end, and the authority of the HOA begins when it comes to the issue of recreational marijuana.
Colorado Constitution and Cultivating Marijuana
According to the Colorado Constitution, there are no legal consequences regarding specific amounts of marijuana that are cultivated, used and/or possessed within the state. However, some people wonder if whether HOAs are allowed to restrict marijuana usage within a designated area (such as a housing development). The wording of the law would seem to permit HOAs to create limitations because marijuana usage is never expressly referred to as a "right." However, in general, HOAs cannot create rules that go against peoples' constitutional rights.
HOAs Regularly Prohibit Other Activities
Additionally, HOAs implement a number of rules banning activities that are otherwise considered lawful. For instance, while it may be considered lawful to keep chicken coops within the state, an HOA may prohibit this activity at a given development. Other typical bans include making certain alterations to a home, running an at-home business that would generate traffic, erection of fencing and many other considerations. These are known as restrictive covenants, and these agreements may extend beyond recognized local or governmental ordinances.
Concern of Visibility and Smoke of Marijuana
Another issue to consider is the smoke from marijuana and how it can affect others. It is possible that the smoke can cause negative health consequences, and even the odor from plants can be a nuisance. It should be noted that the ability to obtain and use marijuana legally does not necessarily translate to the right to grow it, even for personal use. HOAs may have the ability to regulate this per the terms of the neighborhood covenant, but how they can do this is not always immediately clear.
An HOA can address things that are a nuisance to others, such as the smoke and smell, and the HOA can restrict its use in common areas.
It is also possible the HOA can restrict the types of plants and landscaping a homeowner has in visible places. The ability of the HOA to restrict and control may also depend on whether the community consists of single family homes, condominiums or connected apartment units.
An HOA is limited to how it can enforce rules and restrict the actions of Colorado homeowners. Disputes involving the recreational use of marijuana often involve new and emerging legal issues that can be complicated to sort through. It is beneficial to work with an experienced attorney who can help navigate these issues and pursue a beneficial outcome.