Property Rights: CO Smoking At Home

Judge supports homeowners association’s smoking ban
November 17, 2006
This case is interesting. A judge supported a homeowners association rule that a couple cannot smoke in their own townhouse.
First of all, I’m very much into smokers rights. I despise smoking bans and pretty much all “for your own good” legislation.
But the issue here isn’t smoking; it’s the right of homeowners associations to control what goes on on their properties. These associations are created by developers, and they maintain control over individual behavior to make a neighborhood a better place to live. According to Wikipedia, “[a] homeowners association (sometimes HOA) is an organization comprised of all owners of units in a housing development, which may or may not be part of a gated community…In the United States, the vast majority of homeowners associations are incorporated and are therefore governed by a board, which is in essence a private government.”
The only credible argument against them in principle has to do with the fact they’re permanent. Owning land at one point does not give you the right to dictate what happens on it for all eternity. I’d argue you shouldn’t be able to write, in your will, that all future tenants must do this or that; not sure if that would hold up under current law. But the rules are passed by a committee of current homeowners, so no specific dictat is permanent. I would assume the homeowners could vote to dissolve the association if they so chose.
Now, there are some problems with homeowners associations in practice, including the fact that some ban clotheslines — the environment-friendly drying solution that’s more common in lower-class neighboorhoods. Also, from anecdotes I’ve heard about power-tripping board members who give homeowners notes to take their garbage cans in faster or cut their lawns more.
But in this case, I have to say the judge made the right decision. When the couple moved in, they agreed to follow the HOA’s rules. As long as there’s nothing that hurts society at large, like forbidding pro-environment practices, there’s no reason the government should step in.
Robert VerBruggen

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Condo owners lose right to smoke in own home
Association gets backing of judge in prohibition bid

By Charley Able, Rocky Mountain News
November 17, 2006

GOLDEN – Colorado smokers grousing about no longer being able to light up in bars should consider the plight of a couple banned by a judge from smoking in their own home.

Colleen and Rodger Sauve earlier this month lost a court battle to overturn a Heritage Hills #1 Condominium Homeowners Association rule that targeted their cigarette use because the smell of burning tobacco drifted into other condos in the four-unit complex where Colleen has lived, and smoked, for more than five years.

“I don’t understand how you get to change the rules in the middle of the game,” Colleen Sauve said Thursday. “There has to be a limit to a homeowners association’s authority, especially when this (smoking) is a lawful act.”

The legal battle began after the condo association responded to a complaint from the Sauve’s next- door neighbor, Penelope Boyd, about the smoke and odor she said was coming from the Sauves’ condo.

Boyd’s daughter, Christine Shedron, said the problem is not just the smell, but her mother’s sensitivity to it.

“It makes her nauseated; it makes her sick,” Shedron said. “The thing about this is that this is not just my mom against these people. There have been complaints from every person that has lived in that complex with the exception of one or two.”

After each side spent thousands of dollars unsuccessfully trying to mitigate the problem with insulation, foam, filters and air purifiers and a mediation effort failed, the association decided to pass an amendment prohibiting smoking under a covenant that previously dealt with nuisances that could be considered “an annoyance to residents.”

“If you are going to cite smoke as a nuisance, where does that lead us? Half the time, downtown Golden smells like the (Coors) brewery,” Colleen Sauve said. “There are odors everywhere that disturb people.”

District Judge Lily Oeffler sided with the association in her Nov. 7 ruling, finding that “shared airspace in the soffit area permits smoke or smoke smell to migrate.”

“The issue of whether there was actual smoke or simply a smoke smell is irrelevant. Testimony substantiated an almost constant smell of cigarette smoke. . . . Clearly, the smoke smell constitutes a nuisance under these circumstances,” Oeffler wrote.

Legal analyst Scott Robinson said Colorado law upholds the power of homeowners associations to “enact rules that govern the conduct of tenants and the appearance and upkeep of the premises.”

“The court has to decide what is legitimately a nuisance,” Robinson said. “It really is a fine line. Smoking is a voluntary activity which does create a recognizable odor.”

But Bonnie Ferguson, a spokeswoman for the Coalition for Equal Rights, which was formed to help mom-and-pop bars fight Colorado’s new ban on smoking in bars, restaurants and other public places, said Oeffler’s ruling goes too far.

“It’s not only that they (anti-smoking groups) are trying to make it a health issue, now they are trying to make it a nuisance. The biggest part of it is that now they are going after people’s property rights,” Ferguson said.

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Couple’s smoking at home snuffed
A judge says a Golden condo complex can outlaw the smoke -or the smell of it- as a “nuisance.”

11/15/2006
By Ann Schrader, Denver Post Staff Writer

Golden – A Golden couple can’t smoke in the townhouse they own after a judge ruled last week that their condominium association can prohibit smoking in their four-unit building.

“This is my home, and I worked for it,” Colleen Sauve said Wednesday. “I can’t relax and have a cigarette in my own home. If I do, I’ll get fined.”

Sauve and her husband, Rodger, who are both smokers, filed suit in March after the Heritage Hills #1 Condominium Owners Association amended its bylaws to ban smoking. A judge recently ruled against them.

The association was responding to complaints from the Sauves’ next-door neighbor, Penny Boyd, about smoke odor seeping into her unit.

Despite caulking, filters, insulation, painting and ventilation adjustments, the smoke smell continued to bother Boyd, according to court documents.

“We argued that the HOA was not being reasonable in restricting smoking in our own unit, nowhere on the premises, not in the parking lot or on our patio,” Colleen Sauve said.

Owners of the other three units, who approved the ban, were “recognizing the dangers of secondhand smoke and its obnoxious odor and were making their community a safer place for everybody,” said their attorney, Brian Martin.

“Your home is your castle, but when you live in a small community like this and your actions start affecting those around you,” Martin said, “it prevents other people from their homes being their castle, and something clearly needs to be done.”

The state limits smoking to 15 feet away from main entrances to public buildings. Smokers in Golden can light up just outside the doors. And Jefferson County District Judge Lily Oeffler ruled the Sauves can’t smoke in their own home.

In her Nov. 7 ruling, Oeffler said that “the issue of whether there was actual smoke or simply smoke smell is irrelevant.”

Oeffler likened “smoke and/or smoke smell” to “extremely loud noise” that is not contained to one area.

The smoke smell, Oeffler stated, “constitutes a nuisance.” Under the condo declarations, she noted, “no nuisance shall be allowed … which is a source of annoyance to residents.”

Smoking for the Sauves now means leaving home, whether it’s jumping in their car and driving around the block, standing on the sidewalk or wandering across the street to a friend’s home.

Rodger Sauve questions where such rulings will lead.

“If we barbecue fish, is that going to be considered a nuisance?” he asked.

The Sauves said they would like to appeal the ruling but can’t afford it after spending $6,500 on the lawsuit.

“A piece of me says, ‘Just forget about it and walk away,”‘ Colleen Sauve said, “and another piece of me says, ‘Aw, go to hell.”‘

Staff writer Ann Schrader can be reached at 303-278-3217 or aschrader@denverpost.com.