The Medical Marijuana Business Down the Street Stinks

Posted by Bill Kyriagis on February 27, 2011

Medical marijuana businesses, including grow operations and dispensaries, can now be found in many communities throughout Colorado.  The establishment and proliferation of such businesses has presented a number of issues for their neighbors. 

One issue: marijuana stinks.  It has a very strong odor, even before it is smoked. 

Odor emanating from medical marijuana businesses has led to complaints from neighbors, who are typically other businesses.  These businesses and their customers may find the strong marijuana smell that periodically permeates their neighborhoods offensive, or simply overwhelming.  The question then becomes how to deal with the problem.

Colorado’s Medical Marijuana Code, C.R.S. § 12-43.3-101 et seq. (the “Code”) does not directly address or regulate odors coming from medical marijuana businesses, and it does not appear that the proposed state regulations to implement Code will address odors either. 

Accordingly, if neighbors have complaints about odors emanating from medical marijuana businesses, they will either have to hope that local regulation addresses the issue, or be resigned to remedies under the law of nuisance. 

The Boulder Daily Camera recently ran an article addressing the City of Boulder’s regulation of odors from medical marijuana businesses. There have apparently been a number of complaints of wafting smells of marijuana, and the City is investigating.

Under Boulder’s medical marijuana regulations, “[a] medical marijuana business shall be properly ventilated to filter the odor from marijuana so that the odor cannot be detected by a person with a normal sense of smell at the exterior of the medical marijuana business or at any adjoining use or property.”  Boulder Municipal Code, § 6-14-8(h).  Violations can result in a loss of a license, and/or a fine of up to $1,000 per violation. 

According to the Daily Camera, it is difficult for medical marijuana businesses to comply with the requirement, and expensive equipment is needed to mitigate odors.  Medical marijuana businesses have also complained that the requirement is unfair, given that a great many other businesses are allowed to let odors leave their properties without consequence.  (Walking past a pizza parlor, you can often smell the umistakable mix of baking bread and garlic).  However, it appears that the City is intent on trying to enforce its requirement.  As indicated, businesses have a strong incentive to comply, as they risk having their businesses shut down if they do not.

Given Boulder’s odor regulation, neighbors of medical marijuana businesses in Boulder are probably far better off than those in other local jurisdictions that do not have similar requirements.  Without a code provision addressing odors, complaining neighbors would likely only have remedies in the law of nuisance.  While a nuisance suit could result in an injunction, thus cutting off the problem, bringing such a suit would be quite expensive and time consuming for the complaining neighbor.  In contrast, pursuing relief through local code enforcement would likely solve the problem more quickly, and would be carried out primarily at the expense of the local government. 

Colorado’s new licensing scheme for medical marijuana businesses under the Code goes into effect on July 1, 2011.  Local jurisdictions throughout Colorado are still in the process of updating their regulations to conform to this dual state/local licensing system.  As they do, it will be interesting to see if other jurisdictions will attempt to regulate odors as Boulder has.    

 

Noise from Wind Farms May Create Nuisance

Posted by Dimitri Adloff on October 27, 2010

Several weeks ago The New York Times ran an article about noise and vibrations caused by wind turbines.  The article noted that excessive noise has led to complaints and even lawsuits from neighboring landowners.  This shows that while new wind turbine designs are quieter and safer than earlier models, operators of wind turbines (as well as those who lease land to them) still need to remain cognizant of possible nuisance claims that can be brought by neighboring landowners.

Wind Turbine small.jpgTo prevail on a nuisance claim, a neighboring landowner needs to show that the wind turbines substantially interfere with the use and enjoyment of his or her property.  This can be a difficult and fact intensive proposition, especially since courts tend to consider the social utility of the complained of use. 

However, the risks are substantial: a prevailing landowner may be entitled to recover money damages for dimunition of property values or even an injunction that restricts the continued operation of the wind turbines.

Developers and landowners might consider the following ways to avoid potential nuisance claims:

  • Carefully compare potential wind farm sites.  Rural and open spaces far away from residential developments are best.
  • Examine the feasibility of negotiating and obtaining advance waivers from adjoining landowners before beginning construction.  Maybe a neighbor would be willing to waive a nuisance claim for something as simple as having a say in the color or placement of the wind turbines.
  • Assess the cost-effectiveness of operating the wind turbines at a slower rate or only during certain hours of the day.
  • Inquire about insurance plans that cover nuisance claims.

Wind energy is important, both for the economy and the environment.  Care needs to be taken to minimize the risk of nuisance claims derailing the industry's continued growth.

Photo by the russians are here (Flickr)