The homeowners at Heritage Hills #1 Condominium Association recently lit their victory cigars after Altitude Community Law successfully defended an amendment to its Declaration which prohibited smoking in the entire community, including inside the condominium units themselves.  Jefferson County District Court Judge Lily Oeffler found on November 7, 2006 that the passage of the Amendment to the Declaration of Covenants, Conditions and Restrictions to prohibit smoking inside the units, in the common elements, and in the limited common elements was proper, reasonable, made in good faith, and not arbitrary and capricious.

The Arguments
The Plaintiffs in the lawsuit were Colleen Christensen and Rodger Sauve, owners of Unit 2 in the four unit community.  They asserted that the passage of the Amendment was improper because the Declaration did not allow for such a prohibition, there was no proof that it was actually second-hand smoke filtering into the other units, and they had a right to smoke inside their unit.

The Association contended that it maintained a right to amend the Declaration with seventy-five percent approval of the members in the community.  Further, it argued that the amendment was proper under the terms of the Declaration and in furtherance of its stated purpose to allow for the health, comfort, and safety of all of the residents in the community, and to prevent activities that the Association deemed a nuisance.  The Association argued that proof of actual second-hand smoke was not required, because either way the smell was obnoxious and a nuisance.  The Court agreed with the Association.

The History
Since the Association’s inception in 2001, the homeowners and residents in the small four unit community dealt with second-hand smoke filtering through the units.  The building itself was an older building converted into condominiums around 2001.  The smoke originated in the Plaintiffs’ unit, as they were the only smokers in the community.  The homeowners located on each side of the Plaintiffs noticed the infiltration of second-hand smoke immediately, and raised it at the very first board of directors meeting.  Initial attempts were made by all parties to try and prevent the infiltration, by spraying foam insulation in certain crevices in the common walls, but they failed.

The owner of Unit 1 continued to smell the smoke and continued to complain to Ms. Christensen while she lived there.  In March 2004, she moved, but rented the unit.  The owner noticed the tenants would often install filters in the air ducts and received complaints from the tenants about smelling smoke.

The owner of Unit 3 purchased the unit with her husband in March 2003, as an investment property.  Similar to the owner of Unit 1, she noted that her tenants complained about second-hand smoke.  The owner of Unit 3 experienced the second-hand smoke firsthand when visiting the tenants.

Again, the issue was addressed with the Plaintiffs and attempts were made to seal each unit so second-hand smoke would not filter through the units.  Over the course of approximately ten months the tenant in Unit 3 hired two mechanical contractors, a drywall contractor, and a painter to inspect the units, determine how the second-hand smoke was filtering among the units, and make repairs to try to prevent the infiltration.  In addition, she purchased air purifiers to try to eliminate the smoke and its odor.

She paid the contractors in excess of $5,000.00 to conduct these repairs in Unit 3, Unit 4, Unit 1, and in the Plaintiffs’ Unit 2.  The inspections revealed the air ducts were inefficient with pencil-sized holes which allowed the free transfer of air that accessed the common walls.  Moreover, the mechanical systems did not obtain their air from the outside, but re-circulated the air in the units, further exacerbating the problem.  In addition, the duct work shared a common soffit among the four units that penetrated the common walls.  In sum, the inspections revealed the construction of the units was rather porous and allowed for the free transfer of air and second-hand smoke among the units.

Each contractor attempted to seal off these penetrations, and reduce this free transfer of air each with limited success.  The mechanical contractors installed new return ducts and sealed the existing duct work.  The drywall contractor installed foam insulation and a fire block in the soffit areas to try and better seal these areas.  The painter installed caulk and Kilz paint.  And while each step seemed to improve the infiltration of second-hand smoke, it never eliminated it.

After these attempts failed, the Association approached the Plaintiffs in November 2005 to try and reach some common ground on the issue.  Specifically, the Association proposed that the Plaintiffs smoke outdoors only.  The Plaintiffs rejected this proposal and asserted a right to smoke inside their condominium, regardless of its impacts on others in the community.

Feeling that there was no other choice, that they needed to protect the people living in the community, and that they needed to protect their investment, the Board of Directors looked into the Association’s ability to prohibit smoking in the community.  The Association hired Altitude Community Law to address this issue and ultimately prepare an amendment to the Declaration that would be presented to the homeowners for approval and make the Association a non-smoking community.  The Amendment was prepared and presented to the homeowners for approval.  Three out of the four homeowners approved the proposed Amendment.  With seventy-five percent homeowner approval, the Amendment passed and it was recorded on December 31, 2005.

Shortly thereafter, the Plaintiffs, who did not vote for the Amendment, filed a lawsuit against the Association to challenge the Amendment.  A two-day trial was held in front of Judge Oeffler in early October, 2006.  After hearing the evidence, Judge Oeffler took the matter under advisement and issued her ruling on November 7, 2006.

The Ruling
Judge Oeffler noted that, while the Association was young, the building was older and rather porous.  In addition, she found that there were numerous complaints about the second hand smoke from the inception of the Association.  Further, she noted that numerous attempts were made by the homeowners in the community and the tenants in the community to eliminate the second-hand smoke, but nothing was effective.

Judge Oeffler addressed the fact that the Amendment prohibiting smoking was not contained in the original Declaration, but that the Declaration also stated it could be amended with the proper percentage of homeowners.  Further, she noted that individuals who buy into a common interest community know they are subject to certain use restrictions and the use restrictions may be altered from time to time.

Judge Oeffler rejected the Plaintiffs’ argument that the Amendment exceeded the Association’s authority under the Declaration.  She noted that second-hand smoke, whether it is smoke itself or simply its odor, could be considered a nuisance under the Declaration, and thus, the Amendment was proper.

Next, Judge Oeffler considered whether the Amendment was unreasonable or arbitrary and capricious.  Based upon the steps taken by the Association and the tenants to try and eliminate the infiltration, the Court concluded the passage of the Amendment was not unreasonable, arbitrary or capricious, or done in bad faith.

Finally, the Court noted the ban was consistent with public policy regarding second-hand smoke, its potential ill-effects, and its obnoxious odor.  She took judicial notice of the recently passed Colorado Clean Air Act and the numerous attempts that have been taken to protect non-smokers from smokers.  Moreover, she noted the smell of smoke was akin to loud music, which in this setting would negatively affect others in the community.  The Court rejected the Plaintiffs’ contention that they maintained a constitutional right to smoke in their home.

What the Case Means
The case is a very unique one indeed.  The ruling was very fact specific in that the community shared airspace due to the ventilation system and numerous attempts were taken to eliminate the infiltration of second-hand smoke, without success.  While it was a victory for the association, it does not stand for the proposition that all homeowner associations can take steps to eliminate smoking throughout their community.  It does stand for the proposition, however, that depending on the circumstances, making your community a smoke-free environment may be an option.

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