Thursday, October 3, 2013

Guns, Marijuana, Political Signs and Other Controversial Issues in Washington Community Associations

With grateful thanks to Dan Zimberhoff of Barker Martin -- offices in Bellingham, too -- here are the highlights of the October 2013 session. (Tip: Follow Dan's link -- he's a prolific and knowledgeable, online advisor.)


Gun laws can be enforced under a hierarchy of laws: Federal, State and local. Gun ownership in the United States is at an all-time high.

This means that chances are high that residents in a common interest community own and keep a gun or multiples in their homes. Dan asks boards to consider the practical implications of implementing and enforcing regulations about guns. His list includes:

  • May the association act?
  • Should the association act?
  • Must the association act?
  • What guidelines are in force?
  • Generally, the concept of 'reasonableness' can be a problem.
With much interactive discussion, a substantive recommendation is this: assume that there are guns in your community. Boards can recommend that owners store them and keep them in their homes in such a way so that gun accidents don't happen. Any attempt to regulate guns beyond a recommendation may well meet with defeat by owners.

Think about how children can access them, how a visitor might discover one, and how owners and residents can prevent the tragedies that often occur when guns are too easily available.

It's worth a discussion within the community to highlight the issue and to make residents aware that the association is thoughtful in this vein of their responsibility to lead the protection and safety of the community.

Marijuana and Nicotine Use

With the assumption that both drugs have a smoke state, it's important to note that second-hand nicotine smoke  has been proven harmful. No such data is yet available regarding second-hand marijuana smoke. 

Current laws in Washington State prohibit 'smoking' in public, including restrictions to help protect others against second-hand smoke. This is based on it being noxious, offensive, unhealthy and toxic.

Today, only the possession of marijuana is legal in Washington State. No adjustment has been made to Washington State's 'smoking' laws to accommodate marijuana. Note that the new law allows possession of ". . .one ounce of usable marijuana, sixteen ounces of marijuana-infused product in solid form or seventy-two ounces of marijuana-infused product in liquid form."

Again, some common sense is required by boards to address these uses:

  • May the association act?
  • Should the association act?
  • Must the association act?
  • What guidelines are in force?
  • Generally, the concept of 'reasonableness' can be a problem.
(Do you see a pattern here? Is there any black and white? Is there any right or wrong?)

Blatant violations, such as the interior of a unit being used as a grow operation, or a processing center, may be clear violations of existing guidelines in an association. Look for 'odors', home-based business provisions, and so forth. This may also be a criminal matter so that the association can involve police.

Medical marijuana is another matter. Associations are encouraged to work with association attorneys to work out guidelines for residents qualified to use this drug.

Caveat: If your association is a mixed-used community, you may want to discuss prohibiting commercial space use for marijuana processing operations, retail establishments or grow operations. Especially where state laws do not prohibit these operations based on proximity to schools, libraries and so forth, the community is well-advised to step out ahead of the January 1, 2013 -- or later -- release by the state of its guidelines for these businesses.

Why? The association may want to protect residents from powerful odors that emanate from these operations, and may want to establish a guideline for commercial traffic to these enterprises. 

Involve the association's counsel in order to maximize the association's position while protecting itself from future compromise based on a commercial owner's need to rent space.

Political Sign Displays

In Washington State, political signs are regulated in home owners associations, but not in co-ops or condominiums. Boards are well advised to review the previsions included in RCW §64.38.034, and then develop guidelines that include the time, manner and place allowed for political signage.

Again common sense applies. 
  • No signs means no signs, right?
  • What if we allow signs, are the democrats going to kill the republicans in my community?
  • What if we allow signs, are the republicans going to kill the democrats in my community?
Conduct an open discussion among owners and devise the guideline for your community.

Hot Topic #1 -- Noisy Neighbors

Attendees voted to include this topic in Dan's session. He explained that there is a difference between a sensitive neighbor -- one sensitive to noise -- and a few neighbors whose quiet enjoyment of their home is interrupted by a noisy neighbor. 

In these cases, there are times when the board should be involved and times when this is simply a neighbor-to-neighbor dispute. A conversation or note from a sensitive neighbor that reminds noisemakers of quiet times, of dog barking from loneliness during the day, and so forth may resolve the issue.

If parties -- or dogs, or sound systems -- disturb multiple other residents, the board may want to step in on behalf of the community and enforce quiet times or minimize excess noise.

Again, Dan's common sense guidelines -- above -- apply.

Hot Topic #2 -- Secretive Boards

This topic, too, was voted on by attendees to be included here. Dan advises boards to read -- actually read -- the governing documents. He encourages directors to highlight all occurrences of the word shall and all occurrences of the word may. The difference is this: the word shall implies a legal obligation -- there is no choice, while the word may implies that a board can, but is not required to do so.

(Owners are similarly advised: living in a common interest community requires you to do so responsibly -- in full knowledge of your governing documents. When you have questions, you may pose them to the board or to the association manager. Ask for a reference to your CC&Rs, Bylaws, Rules and Regulations and so forth, so that you can learn more about your living situation.)

Boards that operate according to their governing documents are in possession of authority: process is authority. Lack of process means that the board is operating outside their authority. D&O insurance coverage isn't guaranteed when boards operate outside their authority.

If a board fails to enforce rules, guidelines or other covenants, the unenforced statutes can be deemed as 'abandoned' by the association. When boards enforce rules, wisdom dictates that they do so with full consideration of the practicalities, but do so evenly and consistently.

Boards and owners with a substantial gap between them must find a way to come back together. Establish a protocol and an expectation for communication among community members. Minutes may be a way to communicate, but should not be the community newsletter. Use a newsletter to educate owners; minutes document association business and are legal, historical documents. Agendas and minutes should match.