It was just a matter of time for the use of medical marijuana to become a property rights issue. One homeowners association in Chandler, Ariz. has decided that residents cannot smoke marijuana in their front yards, back yards or on their patios.
Some homeowners think the association has overstepped its authority with the decision.
One resident at the development told the Arizona Republic that it’s “an outrage that an HOA would think they have the authority to tell people what they can and can’t do on their property.”
Another resident in the community told the paper “medical marijuana is legal in Arizona and the federal government has given its tacit approval. What I don’t get is why the board is doing this. What about enforcement? Is the board going to hire professional sniffers?”
The lawyer who drafted the policy, Curtis Ekmark, said the board is just trying to head off disputes, particularly since a number of laws are in conflict here. While medical marijuana is legal in Arizona, federal law says it’s illegal.
Other issues that come into play include fair-housing laws and the Americans with Disabilities Act.
“Here’s the elephant in the room when it comes to medical marijuana: A homeowners association is subject to federal and state fair-housing laws,” said a Phoenix attorney. Under those laws, associations need to provide reasonable accommodation for disabled people to use their property.
To get a prescription for medical marijuana in Arizona, an individual has to have an illness or a disability. “If you have a prescription… you are most likely covered by the Fair Housing Act.”
Ekmark said the association is concerned only with smoking in common areas and its effect on people who don’t want to be around the smell or smoke from the marijuana.
“The general consensus is the association boards don’t really care what people do in their units…but if it affects neighbors, it becomes a community issue,” added Ekmark.
The Arizona Republic reported that the community’s HOA documents give the board authority to govern behavior on residential lots.
Arizona’s Medical Marijuana Act was passed by a referendum in November 2010.