Weeding Out Medical Marijuana Use On Arizona Real Estate

March 28, 2011 By Christopher M. McNichol In Legal Alerts

The recent passage of the Arizona Medical Marijuana Act means that medical marijuana dispensaries-a budding industry which will ultimately total about126 under the law’s guidelines-will soon sprout on the landscape, along with an as yet-undetermined number of sites for the legal cultivation of the marijuana plant.

Just because medical marijuana use and distribution has been approved under state law, however, does not modify the longstanding and continuing illegality under independent federal law. Although opponents and proponents alike may welcome Arizona’s new medical marijuana law as warmly as they would welcome a roach in their kitchens, the stark conflict between state and federal law creates a host of foggy issues-including in the real estate field.

Real Estate Rules Restricting Reefer
Reverence for being able to deal freely with property is high among homeowners. Yet Arizona is a state where many people live in planned residential communities and conduct business within controlled commercial centers. Those areas are governed and limited, often in minute detail, by recorded agreements, contracts, easements, covenants, conditions and restrictions, commonly referred to as “CC&Rs.”

Leafing through commonly used CC&Rs reveals that they almost always prohibit illegal actions in so-called common areas on the property. These constraints also trip up activities and uses which could be considered a “nuisance,” either as defined in the CC&Rs or under higher principles of general tort and property law.

Going to Pot: Commercial and Common Areas
Smoking marijuana outside one’s home in the common areas of a planned community, even if otherwise in compliance with state law, would still violate the CC&Rs because the use remains proscribed by federal law, or arguably constitutes a nuisance.

This obviously creates an enforcement conundrum for a homeowner’s association, whose job is to enforce the community’s CC&Rs. These same concerns hold true were a shopper to use marijuana legally (under state law) while strolling around the local retail center.

Leases and Zoning Laws Add Smoke
Leases of residential or commercial property often have similar provisions that will butt into medical marijuana use under state law.

Apart from constraints affecting behavior, a legal marijuana dispensary itself will need to qualify under applicable real estate zoning laws. Many Arizona municipalities are rolling out amendments to zoning regulations that will clip the geographic locations for marijuana clinics. Analogies to other regulated industries are not that far out; from a zoning perspective, some equate the use with adult entertainment.

When the smoke clears, the use of medical marijuana on non-private property may be a pipe dream. Anyone partaking in this new medical marijuana regime should consult legal counsel before inhaling.

For More Information
For more information, please contact Chris McNichol and Kent Cammack using the contact information below.

Christopher M. McNichol602-257-7496mcnichol@gustlaw.com
Chris practices in the area of real estate and is co-author of Ins and Outs of Foreclosure.

Kent E. Cammack602-257-7459kcammack@gustlaw.com
Kent practices in the area of real estate and is co-author of Ins and Outs of Foreclosure.

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