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Going to pot is raising a stink in Colorado

POSTED June 9, 2017 7:01 p.m.

Pot smells.
And that might just lead to another battlefield as marijuana advocates seek to make pot mainstream and to block organized crime from cashing in on the growing legalization trend.
Making its way through the 10th District United States Circuit Court of Appeals is a lawsuit that could create a weapon to counter efforts to grow pot legally in residential areas or in business and industrial zones.
The court on Wednesday said a lawsuit could proceed against a pot-growing warehouse in Colorado that is being pursued by a couple that owns a neighboring horse farm. In short, the court said the neighbors can legally sue the pot growers on the basis of smells and other perceived problems such as the potential attraction of unsavory people that could cause a drop in the value of their property.
If it succeeds, get ready for challenges that could rain down on people under California law put in place by Proposition 64 that allows the personal use cultivation by adults 21 years of age or older of six plants per residence.
While anyone can try to sue anyone over anything, if the courts essentially give standing to claims that civil damages can be incurred by “noxious odors” the growing or use of marijuana generates, the real gold rush in California won’t be those trying to cash in on the legalization of Acapulco Gold and other cannabis strains  but from lawyers.
It doesn’t take too much imagination to see where this can head.
There are people who absolutely can’t stand the smell of marijuana plants or smoke.
While there have been a handful of lawsuits over the years with various degrees of success where one neighbor is irked that another constantly allows tobacco cigarette smoke to drift across property lines to blow into windows or make it impossible to enjoy the outside use of a yard, the issue of smells from the cultivation of pot hasn’t really been litigated on a neighbor versus neighbor basis.
If you don’t think this is an issue, guess again. One of the main driving forces about complaints to local police departments after the use of marijuana for medicinal purposes was legalized was the strong smell of cannabis plants.
One man’s joy is another’s nightmare. Put six marijuana plants downwind and in close proximity of the windows or yard of a neighbor who abhors the smell and the feuding begins.
Turlock and many other Valley cities may be a right to farm city, but whether that protects the smells and the growing and processing of non-food plants is an open question. The right to farm law protects farming as long as they follow accepted agricultural practices. If it does, growing marijuana would be pretty much protected against such nuisance lawsuits.
While lawsuits are likely to occur, the real full court press wouldn’t be before a judge and jury but elected bodies that would face tremendous pressure to zone and regulate where pot could be grown even tighter than under current proposed regulations.
You might argue that has been done to a degree with various rules written for regulating the manner in which pot is grown, but unless marijuana growing regardless of the scale is granted full immunity from the California Environmental Quality Act going after where pot is grown will become fair game.
Noxious smells under CEQA often have to be mitigated.
The only way to make such challenges unlikely to happen is to incorporate marijuana growing done in a specific manner into zoning codes.
Ironically, that would probably be the best way to allow people to grow their six plants any place and in any manner they want on property they own or rent unless a city had an effective and aggressive code enforcement process in place. That’s because most cities aren’t exactly pro-active on code enforcement.
Smell issues would also open the door for tighter regulation of commercial growers meaning they could require conditional use permits.
On one level if you are a marijuana use supporter this is good because it treats marijuana growing like all other businesses.
However, it would likely mean more enforcement would be brought down on home grown pot than when it was simply legal to grow it for medicinal purposes.
Like it or not pot is basically being legalized even though the action of many states including California runs counter to federal law.
But anyone who thinks legal pot won’t come with restrictions beyond what is now being pursued to fully implement Proposition 64 is living in a fantasy world.
There are legitimate concerns about impairment and reaction times operating vehicles and equipment given that pot relaxes people. Employment drug tests aren’t going away. Insurance companies aren’t going to look the other way for a driver under the influence of pot.
There will still be crime connected with both the growing, distribution, and selling of pot.
And there will be push back from neighbors against smells they find revolting.
In short, the fun is only beginning.

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