Pubdate: Fri, 08 May 2020 Source: Wall Street Journal (US) Copyright: 2020 Dow Jones & Company, Inc. Contact: http://www.wsj.com/ Details: http://www.mapinc.org/media/487 Author: Beth DeCarlo OOH THAT SMELL Where there's smoke, there's fire. As more states legalize marijuana for medicinal and recreational use, some neighbors and neighborhoods are divided over pot's particularly pungent odor. That divide will likely grow as many residents continue to stay at home to combat the spread of the novel coronavirus. In Augusta, Maine, adjacent condo owners are currently locked in a battle between one owner who uses marijuana for a medical condition and another owner who says the secondhand smoke aggravates her medical condition. So far, a civil suit filed by the nonsmoking condo owner and her husband in 2018 has been dismissed by a judge in Superior Court, as was their complaint with the Maine Human Rights Commission. Most recently, the couple took their case to the federal level. In a housing-discrimination complaint filed with the Department of Housing and Urban Development, they argue that the condo board has denied them "reasonable accommodation" by allowing the downstairs neighbors to smoke. That matter is pending. Much of this could have been avoided had the condo association spelled out its smoking policy in the rules the condo owners received when they purchased their units. Shirley Steinbach, a Bethesda, Md.-based attorney who works with numerous community associations, says many condo boards today already have written rules that either ban smoking in general-use areas, such as lobbies and hallways, or ban smoking on the property altogether. While restrictions presumably cover any type of smoking, they mainly focus on tobacco use. "Marijuana often is not addressed at all [in condo documents]. It's a nascent issue," says Ms. Steinbach, a litigator with the firm Lerch, Early & Brewer. "Now with decriminalization, it's more common to see its use in the open." That is when communities should revisit their rules to ensure that pot use is covered, with changes voted on by the association board of directors or unit owners, as appropriate, she adds. In general, community associations have the authority to ban or limit smoking-including tobacco, marijuana and e-cigarettes-if the policies are spelled out, she says. A resident with a doctor's prescription for medical marijuana can seek a reasonable accommodation based on a disability under the Fair Housing Act, but the board could choose not to grant it because, under federal law, marijuana is still illegal, Ms. Steinbach says. There are workarounds, however. On Jan. 1, Illinois became the 11th state in the U.S. to permit both medical and recreational marijuana use. Legislators also amended the state's Condominium Property Act, which now says community associations can prohibit marijuana smoking within an owner's unit, but they can't prohibit its use in other forms, such as cannabis-infused food and topical ointments. Municipalities are tackling a related issue-when odors emanating from large, commercial marijuana cultivators and production plants stink up entire neighborhoods. Complaints have led to a number of lawsuits, as well as changes in local permitting and zoning laws, sometimes creating more conflict and confusion. In California, for example, voters in 2016 approved Proposition 64, an initiative that legalized recreational use of marijuana for adults 21 an older. However, the initiative also gives the state's 540 city and county jurisdictions the right to ban or restrict cannabis operations at the local level. As a result, a patchwork of rules has emerged, making it difficult for home buyers and businesses alike to know what's permitted. The continuing acrimony prompted Rick Payne in 2017 to co-found Cannabis Real Estate Consultants. This San Diego-based company helps businesses involved in the production and distribution of cannabis products find commercial real estate that meets state and local zoning requirements. In Palm Springs, Mr. Payne represented a licensed cannabis cultivator in a business park located less than a half-mile away from a residential area. The city's planning department issued the company a business permit with the requirement that the operator install odor-mitigation technology. Cannabis Real Estate Consultants worked with the cannabis operator to add ozone generators, machines often used by indoor cultivators to kill disease, fungus, spores and odors at high levels, he says. So far, the company hasn't received any odor complaints. A number of companies offer odor-mitigation solutions for large-scale cannabis operations. Other methods involve charcoal air-filtration systems, negative ion generators/electrostatic precipitators, air scrubbers, masking agents and the use of negative pressure to keep odors within the facility. Meanwhile, cities and counties in states with legalized marijuana will continue to draft rules they hope will satisfy both homeowners and cannabis businesses-a near-impossible task. The odor issue will get bigger as the market grows, Mr. Payne predicts, but odor-mitigation technology will advance as well, which should help reduce some of the friction. While there's growing support for legalized marijuana in the U.S., many house hunters blanch at the skunky stench in a pot-smoker's home. "Even smokers themselves don't want to move into a house with the smell of somebody else's smoke," says John Manning, managing broker of Re/Max on Market in Seattle. Mr. Manning recently had a $1 million listing in which the homeowner and his roommates were frequent marijuana smokers. In addition to the pungent odor that permeated the home, Mr. Manning would find joints and paraphernalia strewn about before open houses. During one showing, a roommate, who Mr. Manning says was high, plopped onto the couch with a bag of chips. Mr. Manning couldn't sell the house, despite its desirable location. It isn't just the odor that is off-putting to clients, Mr. Manning says. Residue from third-hand smoke-both from marijuana and tobacco use-gets embedded in interior walls, carpet, draperies and even woodwork. Marijuana smoke contains some of the same chemicals and carcinogens as tobacco smoke, according to ThirdHandSmoke.org, a research consortium in California. A 2013 survey of real-estate agents based in Ontario and Quebec, Canada, found that smoking tobacco in a home can lower the value of a home by up to 29% and take longer to sell. Overall, 88% of Ontario agents and brokers agreed that it is more difficult to sell a home where owners have smoked, according to the survey, sponsored by biopharmaceutical firm Pfizer Canada. When Mr. Manning's brokerage gets a listing owned by a smoker, he seeks to have the furniture removed, then calls in remediation experts. They prime and paint the walls and ceilings, clean or remove carpets and curtains, and even remove or wash down stinky light fixtures, woodwork, curtain rods and fireplace mantels. "We'll almost always sell a smoker's house empty," Mr. Manning says, adding that the prep work typically costs thousands of dollars. "The good news is that it's almost always worthwhile," he adds. "If you don't do it, it's a greater loss [in sale price] than what would have been spent on mitigation efforts."