Pubdate: Sun, 02 Feb 2014
Source: Arizona Republic (Phoenix, AZ)
Copyright: 2014 The Arizona Republic
Author: Luci Scott


Some Residents, Lawyers Question the Move; Association Manager Says It's Legal

The board at Carrillo Ranch, a homeowners association in Chandler, 
has ruled that residents cannot smoke marijuana - medical or 
otherwise - in their backyards, front yards and patios.

Some residents say the decision is absurd, while lawyers are 
questioning whether the rule can be enforced.

A Phoenix lawyer who represents some homeowners associations that do 
not include Carrillo Ranch said HOAs are beginning to evaluate what 
they can and can't do in response to the Arizona Medical Marijuana 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," attorney Augustus Shaw said.

Those laws say an association must provide a reasonable accommodation 
to allow disabled individuals the right to use their property.

"In order to get a medical-marijuana prescription, you must have some 
type of ailment or disability," Shaw said. "If you have a 
prescription . you are most likely covered by the Fair Housing Act."

Carrillo Ranch resident Julieta Desrosiers said HOA board members 
spending time discussing the issue is useless.

"They waste their energy trying to see what their neighbors are doing 
in their backyards. (Marijuana) doesn't bother me at all if it's used 
for that (medicinal) purpose," she said.

She said there are worse problems at the development, east of Rural 
Road between Ray Road and Chandler Boulevard, that the HOA board ignores.

"What really bothers me is when there are (burning) restrictions and 
people use their fireplaces," said Desrosiers, who has children with 
asthma and who says smoke from fireplaces is more dangerous than 
medical marijuana smoke from a neighbor's yard.

Trying to avoid disputes

Curtis Ekmark, whose Scottsdale law firm Ekmark & Ekmark drafted the 
medical-marijuana rules for Carrillo Ranch, said HOAs around the 
country are trying to head off disputes.

"They're trying to draft policies or rules and regulations before it 
becomes an issue," he said. "It's difficult with the conflict in 
federal and state laws, and that creates a dilemma for everybody."

It's a case of several laws coming into play, including fair housing 
laws; the Americans with Disabilities Act; Arizona law saying medical 
marijuana is legal; and federal law saying marijuana is illegal.

Ekmark said homeowners associations are mainly concerned with smoking 
in common areas and the possible presence of people who don't want to 
be around smoke.

"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."

He said residents give up some rights when they move to a 
neighborhood governed by an HOA.

"I may have the right to have a dog, but if I move into an 
association, I lose that right if the documents prohibit dogs," he said.

The Carrillo Ranch president is Michael Herrmann, according to the 
Arizona Corporation Commission, and Herrmann won't talk about the 
rule, established last year. But some of the residents say the board 
has overstepped its bounds.

Dorice Exline, a 21-year Carillo Ranch resident, said 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 own property."

"That's going too far," Exline said. "They seem to think they can 
supersede the law."

Keith Stefanczyk, who shares ownership of a house with Exline, said 
in an e-mail, "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? It's a petty and inchoate approach to solving a problem 
that doesn't even exist."

Common areas vs. yards

Attorney Jonathan Dessaules, who represents homeowners in disputes 
with HOAs, said of the Carrillo Ranch ban, "My reaction is that it's 
probably not a valid rule. I would like to see where they think the 
authority for that rule comes from. It's like somebody saying they 
can't sit on their porch and drink lemonade. If its use is legal, 
they shouldn't be allowed to regulate where or how or when you are taking it."

He predicted more HOAs will be addressing the issue.

"Medical marijuana has only taken off the ground here, and I suspect 
the more it starts getting traction, the more likely we'll see these 
types of cases," Dessaules said. "In my experience, it's usually a 
combination of a board being controlled or directed by a lawyer or a 
law firm, and that combination adds a lot of power, and the homeowner 
generally doesn't have any. We've seen that a lot over the years, the 
little guy being taken advantage of."

Ryan Hurley, a partner with the Rose Law Group, said HOAs can 
prohibit marijuana in common areas, "but prohibiting people from 
smoking in their backyards, an enclosure in their own private 
property, is an overreach.

"It would be awfully hard to enforce, particularly in the backyard. 
. It's not like they're having a bonfire."

The Carrillo Ranch board also has forbidden the smoking of medical 
marijuana in common areas, which it is entitled to do, said Brian 
Lincks, president of City Property Management, the community's 
management company.

Carrillo Ranch's HOA documents give the board authority to govern 
behavior on residents' lots. Although boards can govern appearances 
of houses, it's unusual that the board can govern lots, Lincks said.

"This policy was adopted lawfully," Lincks said. "Residents can't use 
marijuana in open areas of their lot because the CC&Rs do allow the 
board to make rules on the lot. ... Who knows where that will go if 
courts ever challenge that?"

Some HOAs have a lot of authority, and others have none, Ekmark noted.

"It's something people should check into before they buy," he said.
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MAP posted-by: Jay Bergstrom