Page 10 - CooperatorNews New Jersey Expo 2021

10 COOPERATORNEWS NEW JERSEY —EXPO 2021 NJ.COOPERATORNEWS.COM MANAGEMENT Coping with Legal Cannabis Smoke Gets in Your Eyes BY A J SIDRANSKY With the advent of legislation legalizing marijuana for both medical and recreational purposes in a number of U.S. states, many co-op and condo communities are now faced with a new quality-of-life issue. Apartment living is of course very different from living in a detached single-family home. What one res- ident does in their apartment may significant- ly impact their neighbors in adjoining units. Secondhand tobacco smoke has long been a chronic problem in multifamily communi- ties—and now many boards are concerned that if cannabis use increases thanks to legal- ization, it will add a new layer of complication to smoke complaints. Is Smoke...Smoke? Perhaps the overarching question is whether boards can treat different kinds of smoke in their buildings and HOAs differ- ently. Are all smokes equal under the law, or are some smokes more privileged than oth- ers? Can a co-op or condo community permit tobacco smoking within apartments (or in common areas, for that matter), but forbid the consumption of cannabis? Secondhand smoke is an issue because in addition to the objectionable odor, cigarette other, since now they are all legal.” and cigar smoke contains carcinogens, al- lergens, and irritating particles that can cre- ate or aggravate a host of medical conditions tions adopted yet,” says Scott Piekarsky, an at- in nonsmokers. While a number of credible torney with Philips Nizer, located in Hacken- studies have suggested that marijuana smoke sack. “As the law has been effective only since smokers? Must they be grandfathered in smoke in your unit.” Again, that’s a distinction is less harmful than tobacco smoke to both the February 2021, no marketing of recreational (which seems a bit contradictory, since the between the differing forms of co-op and con- smoker and those exposed to the smoke sec- ondhand, the fact remains that lots of people sold and used, but recreational use hasn’t com- don’t want the smell of weed wafting through menced. That said, people complained about board force owners who currently smoke to their home any more than the smell of cheap this problem before the change in the law. One break the habit? stogies. “There is no absolute right to smoke, even second-hand smoke problem and asked us for to apply to all kinds of smoking, since the ba- in your own apartment, if doing so creates a advice. The statute speaks to smoking, vap- nuisance or disturbs your neighbors,” says ing, and aerosolizing of cannabis. If you’re a est of the building. So permitting one form of ‘smoke-free’ policy considerably more diffi- Michelle Quinn, a partner with Manhat- tan-based law firm Gallet Dreyer & Berkey. in the units or common structure of the co- “Boards can place restrictions on all kinds of op. Co-op boards have those broad powers, the building would not be considered ‘smoke- smoking. Most co-op and condo buildings but condos can only institute rules if they’re free’ and would not benefit from the higher exceptions to a building’s no-smoking policy. have existing provisions in their proprietary approved by the association and the major- lease and/or house rules that prohibit resi- dents from allowing offensive odors to seep to regulating the issue in common areas only. risk of fire associated with tobacco smoking, smoking policy is implemented to continue to into their neighbors’ apartments or the com- mon areas of the building. Odor nuisances in their property, but condominium associa- are not limited to smoking, but also include tions only own pieces of common elements. or pot.” smells from cooking, pets, and hoarding situ- ations. Generally speaking, the limitations on not an owner. By nature of the ownership ban all smoke, rather than one or the other,” ing going forward. “I think there would be smoking cannabis would be the same as the structure, co-op boards have different rights he says, but adds that while “it’s difficult to say grandfathering if you moved in when smok- limitations on smoking tobacco or vaping/ electronic cigarettes. It would be extremely difficult to justify permitting one and not the The overall picture in New Jersey is a little cut out for it—and can’t really pick and choose consideration when drafting such rules that different at present. “There are no real regula- cannabis has begun yet. Medical marijuana is goal of a smoking ban is to eliminate smoke do ownership and the rights of owners and of our co-op clients was concerned about the co-op, you can prohibit or regulate smoking smoking and not the other defeats that pur- ity of unit owners—and they may be limited non-smoking buildings; there would still be a live in the building at the time the new no- Co-op corporations own everything included and neighbors would still complain of offen- As a co-op shareholder you really are a renter than condos.” To Smoke, Or Not to Smoke... As previously discussed, a co-op or condo bis but not tobacco. There will be challenges board wishing to go smoke-free has its work to this of course. It should also be taken into what types of smoke to allow or disallow. With there are existing tobacco regulations in New that in mind, what effect does going smoke- free have on a community’s existing tobacco but those same regulations don’t say you can’t from the building’s environment), or can a shareholders. Quinn reiterates that “the rule would have otherwise making considerations for smokers sis for it would be grounded in the best inter- pose. Also, if the ban were selectively applied, odors,” she says. She also stresses that grand- property values generally commanded by Grandfathering permits those residents who sive odors, whether they came from cigarettes Piekarsky agrees. “It’s probably better to ing, if a board made the move to ban smok- right now because the situation is too new, ing was allowed. It is a legal thing. A board it looks like you could try to prohibit canna- Jersey prohibiting smoking in common areas, According to Quinn, “There is no legal or standard requirement for ‘grandfathering’ or already living in the building or HOA. Grand- fathering some residents makes enforcing the cult due to the pervading nature of smoke and fathering and medical marijuana use are both smoke despite the ban. Piekarsky adds that he believes the law in New Jersey would provide for grandfather- would be hard pressed to prohibit it for those continued on page 28