Vince Sliwoski
by

Like many recent court cases involving marijuana, last week’s Oregon Court of Appeals decision got folks talking. Most headlines read something like “Oregon court rules that the odor of marijuana smoke is not legally offensive.” This is accurate but incomplete, and sort of misleading. A complete description of the court’s holding would read something like “Subject to appeal, Oregon court rules that an affidavit which fails to describe the intensity and persistence of a marijuana smoke odor, cannot, as a matter of law, satisfy the probable cause standard required for search warrant issuance.”

Marijuana Odor and OregonSuch a headline would be unwieldy, but it is important to note that this was a criminal case construing a criminal statute. The law at issue, ORS 166.025, provides that a person who “creates a hazardous or physically offensive condition” commits the crime of “disorderly conduct in the second degree.” Though the court’s ruling (if it stands) may constitute a helpful precedent for civil nuisance complaints, the odor of marijuana has not been adjudicated as powder fresh. Instead, the court’s ruling seems to imply that if a smell were intense and persistent, it could be “physically offensive” enough for a magistrate to issue a search warrant under the statute.

Although this case did not concern “nuisance” in the civil context, the court reviewed the legislative history of the criminal statute at issue and helpfully observed that it appears “designed to reach activity that constitutes a public nuisance” (emphasis added). In civil law a “public nuisance” is an unreasonable interference with a right common to the general public. “Private nuisance,” on the other hand, is an unreasonable invasion of a person’s interest in using and enjoying their land. A nuisance may be public or private or both.

Regardless and in every case, nuisance describes the intentional, negligent or reckless invasion of a common right or private property interest (i.e., by marijuana smoke), but not the invasive acts creating the nuisance (i.e., smoking marijuana). This means that a nuisance complaint cannot be brought against someone for cannabis-related activities on her own property, if those activities do not cause harmful effects over property lines. A plaintiff must also plead and prove that the nuisance is substantial and unreasonable to prevail.

So, could the smell of marijuana smoke or plants be considered substantial enough, and unreasonable enough, for a plaintiff to prevail in a civil nuisance case? Most likely, yes. In making this determination, a court would consider the interests of the parties involved and weigh the harm suffered by the plaintiff against the utility of the defendant’s conduct. For example, let’s say a downwind daycare owner brings a private nuisance complaint against a large marijuana processing operation that creates a strong, persistent odor from 1,001 feet away. It is very possible that a court would consider the odor harmful, and the utility of the defendant’s conduct low. In such a case, the plaintiff might prevail.

Other cases are not so clear. Our cannabis litigation lawyers have defended a number of marijuana growers in private nuisance complaints brought by neighbors. Sometimes these complaints are litigated but other times creative workarounds are available. For example, one client with a large indoor grow operation recently decided to retrofit its building with scrubbers after ongoing complaints by neighboring businesses. This solution was reached after we met with the local fire department, a city office, neighbors and the client’s landlord. Ultimately, the landlord even agreed to foot a large part of our client’s costs so as to keep our client in the building, despite lease terms that put odor control obligations squarely on our client.

Fortunately for that client, no local ordinance expressly declared marijuana a nuisance and its neighbors had less leverage than they would have liked. In other cities, that would not have been the case. The City of Pendleton, Oregon, for example, home to the World Famous Pendleton Round Up and all of its associated smells, recently declared marijuana odor a nuisance. Accordingly, a city ordinance now expressly prohibits marijuana odors from leaving a person’s property. (Pendleton is the county seat Umatilla County, which has opted out of commercial marijuana activity entirely). In Pendleton, even a casual marijuana user could be liable on a nuisance theory for smoke smells drifting across to a neighboring residence.

Marijuana users and businesses need to be mindful of the immediate external effects associated with using and handling marijuana, along with any local rules. Despite the recent Oregon Court of Appeals decision, there are no hard and fast rules on when and whether marijuana smoke may constitute a nuisance, and when it’s just a thing. Smart business practices—including choice of location—will minimize exposure to these types of claims.

5 responses to “Marijuana Odor in Oregon: The Courts Weigh In”

  1. Second-hand smoke is not the only way marijuana affects people other than the user. This plant puts off intense and profound odors that produce physiological effects on those who inhale the properties. This is why people are now advocating for pot ‘essential oils.’

    I don’t really care what people do or how they make their money…but the chemicals in the pot plant make me very ill. So ill, that after living next to a pot farm in CA, I have persistent immune issues.

    This plant is a drug. Yet it is being advocated as a harmless crop, to be managed like corn or wheat. At the same time, advocates argue for its health benefits.

    You cannot have it both ways. Hemp is a benign crop….Marijuana is a drug, and it should be regulated and managed as one. And the laws that allow it should reflect these facts.

    You will see more and more of us speaking up about this aspect of this plant and growers should have the money and resources to deal with this aspect.

    There should be no reason why I should have to get sick from someone’s activities on their property.

    Thanks for the tips on how to fight this.

    • Odor laws should be Uniform across all industries and Unilaterally enforced. If the Cannabis farm needs Carbon Filters, so too does the Cattle ranch in Pendleton, the Dairy farm on one side of me and the slaughterhouse on the other and the Pulp mill down the road. If anyone at all is living in EFU or RR zoned land, they need to SHUT IT about smells of any farm at all. And so what if it is a “drug”? So is Alcohol – it is a Depressant, but unlike Alcohol, which kills 33 million people every year, Cannabis saves millions of lives every year. There have been less than 20 documented deaths diretly attributable to Cannabis in the past 200 years, but in that same time Alcohol the Drug has killed around 1 BILLION PEOPLE. Just keep a little perspective and try to remember that the American Revolution was fought over Cannabis by Founding Father’s who 100% all grew and imbibed the drug. My suggestion to you is not to fight this but to move out of the country and into the city where farming is not allowed.

  2. What is going on in Jackson county? There are open cannabis farms and the smell is very strong near my house. One is probably 10 acres. I’m starting to get surrounded by multiple grow operations and the neighborhood now smells like a skunk all the time. Do I have any recourse? Is this even legal they can be growing so much and if not, why is there no law enforcement presence?

    • When Jackson County was created in 1852, Cannabis was legal and sold in 100’s of different products both medically and recreationally. Jackson County farmers continued to grow Cannabis until it was made illegal in 1935, and due to lax enforcement it was a major industry in JC up until the 1950s, when enforcement forced the thousands of farmers to grow covertely. And before white man arrived, the Modoc, Shasta, Takelma, Latgawa, and Umpqua Indian tribes all grew Cannabis. The world famous “Skunk #1” which smells just like a skunk was originally from Southern Oregon, where the Modoc were growing it for thousands of years. The Modoc claim they got the strain in a trade with their kin in what is now Oklahoma. Cannabis has been a staple crop in Oregon, and especially in Southern Oregon, for millenia. Perhaps you need to move to another State?

  3. I am in Oregon and my neighbor is growing a LOT (18-24) plants in their back yard right up against the fence to our yard. This is the first year they have done this. I smoke myself since legalization and she has in the past with no ill effects (even with mild asthma). And honestly the smell does not bother me too much.

    The problem is that this has led my wife to discover that the heavy pungent odor of pot plants in this quantity causes very significant issues with her usually very mild and well controlled asthma.

    She has had to go from a rescue inhaler to a maintenance inhaler as well as a new allergy medication to try and control the asthma and so far she has seen very little relief. She still gets short of breath and had difficulty keeping energy levels approaching normal. This has significantly impacted her quality of life here at home and is most definitely linked to the pot.

    Is there anything that can be done? This is a health issue for my wife and I need to do something! Should I talk to a lawyer? I don’t want to stop them from growing completely, perhaps just move the plants away from our side of their yard so as to not impact my wife’s health.

    I plan to speak with them next time I see them, but we are not on good (or bad) terms with them.

    Any advice?

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