Marijuana and HOAs: Can homeowners groups ban people from growing, using pot?
With that in mind, Orten says, "I don't think associations will be looking to restrict marijuana use just because they're not in favor of it. If associations are interested in restrictions, it will probably be because of adverse effects on others in the community -- and that really begins to define the type of community that might be interested in it.
"Generally, that probably won't include single-family communities where homes aren't attached. It will probably be communities where homes are attached" -- like condominiums or duplexes -- "where there's some aspect of odor or effects that might begin to bother other residents."
Math may come into play before HOAs decide to act, he goes on. "Let's say it's a twenty-unit community and the odor of the growth or smoking of cannabis is affecting four or maybe eight people. Then that community may be more inclined to look to restrict it by covenant or rule. But if it's a 100-unit community and you've got the same number of people who are affected, that association might not view it as something that's broad enough to affect all of the community to consider adding a covenant or draft a rule that would restrict the odors associated with marijuana. As in the case of most things, context is everything."
Lining up strong evidence to support such restrictions could be important, since a lawsuit challenging a homeowners association's marijuana ban is certainly possible -- and "HOAs are not interested in being sued," Orten admits. "They wouldn't want to be a test case, because that often means it would go up to an appellate court or even the Colorado Supreme Court. That would mean the possibility of three different courts ruling on it, and the parties involved might be in litigation for potentially four or five years. Associations would prefer to be viewed positively by the community, and the cost and expense of that might not put them in the most desirable position."
At the same time, Orten points to another provision of Amendment 64 that he sees as applying to HOAs -- and which could give cover to those who want to restrict marijuana use and cultivation.
Continue for more about marijuana and homeowners associations.