By Rachel Sapin

Anticipated push by HOAs against smoking pot getting hazy.

We’re more concerned about what is happening with Social Security,” said Lewis, who is 68 and vice president of the Heather Ridge Metropolitan District, which consists of 10 different HOAs that govern over 1,000 homes in southeast Aurora.

The home of Aurora resident Van Lewis sits so close to a golf course, you can see a red flag marking a hole from his ground-level patio. His condo is part of the Heather Ridge South Homeowners Association, where he shares a wall with his neighbor and a view with the patios of nearby homes that encircle the course. Lewis, who is president of his neighborhood’s HOA, can’t remember the last time marijuana came up at a neighborhood meeting.“We’re more concerned about what is happening with Social Security,” said Lewis, who is 68 and vice president of the Heather Ridge Metropolitan District, which consists of 10 different HOAs that govern over 1,000 homes in southeast Aurora.

He said so far it’s just an issue that most Aurora HOAs are watching, not necessarily taking action on.“Most HOAs don’t have a covenant against marijuana cultivation or use,” said Jerry Orten, an HOA attorney and spokesman for the Rocky Mountain Chapter of the Community Association Institute. “Most of what’s happening now is just a discussion.”Many of the state’s HOAs haven’t decided what, if any rules, to implement. They could regulate marijuana use if they want to, Orten said. Orten said that right could come from a ruling handed down by the New Jersey Supreme Court.

In 2007, residents of the Twin Rivers Homeowners Association said the HOA was violating their First Amendment rights by not allowing them congregate and to post signs in the neighborhood’s common plaza. The New Jersey Supreme Court ruled the residents waived their constitutional free speech right when they agreed to live by the HOA’s covenant, which only allowed residents to post one or two signs on their personal property. They also ruled that the common area was private property, and also subject to the rules of the HOA. Though that ruling was outside of Colorado, Orten said the same result would be expected in Colorado if Amendment 64 were challenged in court.

Orten says Colorado’s Clean Air Act, which puts limitations on where people can smoke tobacco and on other types of smoke someone might find offensive, also gives HOAs the right to prohibit smoking in common areas. Pot use would remain hazy inside people’s homes simply because HOAs do not want to pursue that type of rule-making, Orten said.

HOAs don’t control what happens inside homes, “and they really don’t want to,” he said. Andrea Frederickson, president of The Condominium Association at East Hampden Circle, said she has concerns about the potential for civil lawsuits that could result from too much regulation.“

We are by some standards a small complex of five buildings with 60 units and certainly do not have a budget that would allow us to bring lawsuits against someone or defend a lawsuit, if someone disagreed with the rules and regulations,” she wrote in an email. “Our association … will address things as they come up and hope that some big association will try it out in court and we can know where we stand.”

She said her HOA has a nuisance clause that prevents homeowners from smoking in common spaces such as stairways, but she said that rule would not compel a neighbor to sue someone for smoking marijuana in their own unit, even if the smell wafted through vents or pocket doors.“

Ideally, you want rules people would voluntarily comply with,” Orten said. He said the bigger issue though may not come with marijuana use, but with cultivation where odors can permeate walls and potentially cause mold to grow in less-ventilated units. Residents using recreational marijuana are allowed up to six plants, but medical pot growers can obtain permission to grow more.“

If you’re going to grow, they could say you need ventilation. They could also limit your use of electricity. A lot of these grow facilities will run their lights for 16-18 hours a day,” Orten said. Whatever HOAs decide, the City of Aurora will not interfere, says Interim City Attorney Mike Hyman.  “We have left that up to the individual HOAs,” he said.