Posted on 11/17/2006 10:46:11 AM PST by TheKidster
GOLDEN, Colo. -- A judge has upheld a homeowners association's order barring a couple from smoking in the town house they own.
Colleen and Rodger Sauve, both smokers, filed a lawsuit in March after their condominium association amended its bylaws last December to prohibit smoking.
"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. The Heritage Hills #1 Condominium Owners Association was responding to complaints from the Sauves' neighbors who said cigarette smoke was seeping into their units, representing a nuisance to others in the building.
In a Nov. 7 ruling, Jefferson County District Judge Lily Oeffler ruled the association can keep the couple from smoking in their own home.
Oeffler stated "smoke and/or smoke smell" is not contained to one area and that smoke smell "constitutes a nuisance." She noted that under condo declarations, nuisances are not allowed.
The couple now has to light up on the street in front of their condominium building.
"I think it's ridiculous. If there's another blizzard, I'm going to be having to stand out on the street, smoking a cigarette," said Colleen Suave.
For five years the couple has smoked in their living room and that had neighbors fuming.
"At times, it smells like someone is sitting in the room with you, smoking. So yes, it's very heavy," said condo owner Christine Shedron.
The Sauves said they have tried to seal their unit. One tenant spent thousands of dollars trying to minimize the odor.
"We got complaints and we felt like it was necessary to protect our tenants and our investment," said Shedron.
The Suaves said they would like to appeal the judge's ruling but are unsure if they have the money to continue fighting. They said what goes on behind their closed doors shouldn't be other people's business.
"I don't understand. If I was here and I was doing a lawful act in my home when they got here, why can they say, 'OK, now you have to change,'" said Colleen Suave. "We're not arguing the right to smoke as much as we're arguing the right to privacy in our home."
Other homeowners believe, as with loud music, that the rights of a community trump the rights of individual residents. The HOA is also concerned that tenants will sue those homeowners for exposure to second-hand smoke and this could be a liability issue.
The couple said that they would like to unload their condo and get out of the HOA entirely, but they are not sure if the real estate market is right.
She is always speculating on my bad habits too. LOL! I sleep with 2 small dogs, I am sure she would say I smell and have fleas. ha!
There are two solutions to this problem. Both involve the parties to the problem doing something themselves, instead of suing.
A would be for the complaining non-smokers to move to housing that doesn't share structural elements with other housing. It's a lot harder for your neighbor to blow smoke into your house if it's 15 feet away from his.
B would be for the smokers either to quit smoking, or to move to stand-alone housing.
I don't advocate either, although as soon as Xena's Guy and I build our house we are never sharing walls with anyone again. (Nothing personal - I like our neighbors just fine - but a house is a house and an apartment is an apartment, and a townhouse/condo is too much the latter to be considered the former.)
Because they are created and controlled by the developer/builder as a way of maintaining uniformity in their planned community McNeighborhoods.
If the rule was a board action after they bought, they should based their suit on inverse condemnation and argued that the ruling reducrd the value of their property.
Not an issue here, tpaine. The issue here is a signed contractual agreement between parties. Exactly the sort of thing libertarians espouse in lieu of centralized governmental controls. If you contractually give up some property rights to an HOA in return for some perceived benefit, that is your choice. But don't weep and moan when the other party enforces the contract to your cost.
I have friends who are dealing with kim chi being cooked in their condominium building. Not sure if that's how you spell it but it has a very strong odor.
A few years ago I looked at an apartment in that building, not to live there but as a rental, and the people below were cooking that stuff. The odor was so strong that I walked away from an excellent buying opportunity. The unit could be had at 20% below market value but I figured I could never sell it or rent it.
Just imagine, if you had lived in shoddy condos with elitist neighbors, you wouldn't have this memory to share.
No, tobacco has been known to be harmful and addictive for well over 100 years. Despite the tobacco companies propaganda, the data was out there and easily obtainable by any adult. I cut no slack to the people who claim they didn't know better.
If people still want to smoke, even knowing the downside, then I give them the same consideration I would an adrenaline junkie who freeclimbs cliffs. If you sustain grievous injury, it's your own damn fault. Just try not to splatter on me when you fall.
This is one of the reasons I'll never buy property with an HOA.
Actually it depends on the state. I believe that in California and some other states, the HOA can and will fine you. If you then refuse to pay the fines, they can foreclose for nonpayment.
Makes sense. I stand corrected.
Well, I don't smoke... In this thread, judging from the number of posts from non smokers vs smokers, that would make me normal.
Considering around 25% of Americans smoke, and the definition of normal, that would make non smokers, therefore, me, normal.
What gives you that idea? -- Read the above for 'what I said'; defending unbridled majority rule is akin to sedition, imo. ..
State referendums are 'bridled' by both Article VI and the 14th Amendment, are they not?
I see you use the term 'bridled". Then use the US Constitution as the governor. I agree.
Fine, we agree that State referendums are 'bridled' by both Article VI and the 14th Amendment.
Laws restricting smoking are either "bridled" of"unbridled". If you feel they are implemented "unbridled" then take it to court. You can challenge the process or the outcome, or both. But until you win in court or the sphere of public opinion (i.e. ballot) box you cannot say smoking laws are illegal.
Wrong.. I can say that, just as Marshall said that in Marbury. -- 'Laws' repugnant to our Constitution are null & void from the minute they are enacted. -- Are you sure you got a "A" in constitutional law?
You may not like them, and I support your position to challenge them, but it is a political choice. The concept that smoke is an unbridgeable right is bunk.
Smoking is not protected in the Constitution.
Unenumerated rights are protected in the Constitutions 9th.. You're wrong again; - grade "F".
Are you saying a political movement that would champion an amendment to the US Constitution to implement a national referendum would be sedition?
If that proposed amendment 'championed' ignoring our individual rights to life, liberty or property, -- you better believe it would be seditious.. - Can you agree?
Nope, if it was political.
You proposed a political amendment, not me. Now you say "if"? -- How weird.
I say the rights we have come from good sense and the Constitution.
I say our rights are self evident & inalienable. -- They do not "come from" the constitution. - Another "F".
I do not believe "individual rights" are absolute and neither do you. Do you?
Of course not. - Not that this will stop you from your sermon about "if you do":
If you do you have a problem with consistency.
Is your right to property superior my right to building codes? property taxes? confiscation? Is your right to life mean there cannot be a death penalty? Does you right to liberty include your right to walk down the street blasting a boom box at 4Am? We are a society of laws. And people have the right to lobby for any law.
You cannot support some individual rights and not others. Unless you have a system of laws.
I've never posted otherwise.
I think the supreme right is the right for citizens to make and change the law. This includes amending the Constitution. One thing for sure. We have building codes and safety codes and other common good regulations.
Yep, we have far too many such 'regs', -- in good part due to lawyers just like you, imo.
Have you ever heard of CA Prop 13? Are you opposed?
I worked and voted for it. Nothing in prop 13 violates human rights. - Can you agree?
Nice clear post. This is not nanny state as some allege. It is a community of people who agree to abide by their self made rules. It is actually quite refreshing on a small scale.
Hmmm,,I thought a lien could be place on property and that meant when it was sold the lien was paid.
And I thought only a bank could foreclose.
my understanding of that kind of fine is that you take it to court, a judge orders payment and things follow from there.
Because they are created and controlled by the developer/builder as a way of maintaining uniformity in their planned community McNeighborhoods.
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