In more condos, home isn't where the smokers
are
Residents' associations enacting bans on secondhand fumes and
their perils
Thursday, December 23, 2004
BY PAULA SAHA
Star-Ledger Staff
For years, Don Williams put up with a downstairs neighbor who
smoked. The stench was so overpowering to Williams it would wake
him in the middle of the night, cause his voice to become hoarse
and stress him out.
"It's not only a nuisance, it's a threat to my well-being
and my life," said Williams, who owns a condo in Mendham Knolls,
a tiny, 12-unit affordable housing complex in Mendham Township.
The next person who moved into the unit didn't smoke, but the
condo is back on the market and Williams didn't want another smoker
to move in. So he fought to ban smoking in Mendham Knolls altogether.
Earlier this month, the homeowners' association did exactly that
by a 9-2 vote (one owner was absent) and joined a growing number
of smoke-free condominiums and apartment buildings across the nation.
"Smoking has become an increasingly contentious issue," said
Frank Rathbun, a spokesman for the Community Associations Institute
in Alexandria, Va..
In New Jersey, anti-smoking groups report that most of their calls
from the public are concerning secondhand smoke in multi-family
dwellings.
"We hear from tenants in rental units, we here from owners
in condo situations, we also occasionally hear from people who
are in office spaces," said Regina Carlson, executive director
of the New Jersey Group Against Smoking Pollution, or GASP.
Carlson said it is not clear how prevalent homeowner association
bans are in the Garden State, but "it is obviously an area
that people are now addressing."
Bay View Manor in Ocean City became the first public housing facility
in New Jersey to go smoke free, but such bans are controversial.
Many question both the propriety and legality of dictating what
people can and cannot do in their own home.
Chris Bostic, general counsel to Action on Smoking and Health,
a Washington, D.C.-based anti-smoking organization, said no court
has ruled directly on the issue of a condominium banning smoking
in individual units. Edward Sweda, who runs the Tobacco Products
Liability Project based at Northeastern University School of Law
in Boston and tracks smoking-related litigation, also said he was
not aware of any cases challenging condominium smoking bans.
"There have been many cases across the country brought on
behalf of non-smokers trying to get some relief from smoke seeping
from one unit to another," Sweda said. In those cases, he
said, the courts have generally ruled that there is no constitutional
right to smoke.
The underlying principle, said Carlson of NJ GASP, is that these
would not be issues "if people found a way to smoke in their
own home when it doesn't go out of their own home."
At Mendham Knolls, one resident smokes and she will still be allowed
to smoke in her unit. But at least one non-smoking resident wasn't
happy with the association vote.
"It's a private home and I feel people should be able to
do what they want to do," said Frank Daries, who voted against
the ban.
Penny Newell, a trustee of the Morris S. Frank Housing Corp.,
agrees. The town-created housing corporation, which oversees affordable
housing in Mendham Township, markets the units at Mendham Knolls.
Newell believes screening prospective buyers on whether or not
they smoke is discrimination.
Newell said the unit below Williams is for sale, and he has told
her she cannot sell to a smoker.
"I cannot discriminate that way against a potential purchaser," she
said.
But Bostic disagrees. "People have the right to do whatever
they want in their house until it starts affecting somebody else," he
said.
It was Bostic who Williams contacted when he was researching his
options to avoid another smoking neighbor. Bostic told him that
having the residents of his complex vote on a ban was the simplest
way to avoid smoking neighbors.
"There is no right to smoke," Bostic said. "There
is a constitutional right to privacy (but) the moment it affects
someone else, it becomes a new issue."
David Ramsey, a Morristown attorney who represents numerous homeowners'
associations and is past president of the Community Associations
Institute, said so long as a substantial number of residents in
the complex voted for the ban, it is legal.
"It's discrimination, but it's not illegal discrimination," Ramsey
said, likening the smoking ban to no pets or no loud music policies.
As for the issue with the housing authority, Ramsey said, "This
is where I think there ends up being a little tension between the
public and private sectors. It's not public housing."
Ramsey also said smokers would have other affordable housing unit
option in the town.
Newell says she is concerned that the no-smoking rule will discourage
buyers, but Williams disagrees. "It makes the place more desirable,
that's my point of view," he said.
Newell said she is not sure where the conflict between the housing
authority and the Mendham Knolls homeowners' association will end
up, but that it will somehow have to be resolved. In addition,
she said she does not believe the rule is effective unless it is
recorded with the county in the association's bylaws.
Williams said that he is working now to get the new bylaws recorded.
"I'm going to take this issue to the bitter end," Williams
said. "If it goes to court, fine. This is near and dear to
my heart."
Paula Saha works in the Morris County bureau. She can be reached
at psaha@starledger.com or (973) 539-7910.
Copyright 2004 NJ.com. All Rights Reserved.
Compliments of:
RESPECT, Resources and Education Supporting People
Everywhere Controlling Tobacco -- a statewide project of the American
Lung Association of the East Bay . Tel. 916-739-8925 respect@jps.net
www.respect -ala.org
Made possible with funds from the Tobacco Tax Health Protection
Act of 1988—Proposition 99, under Grant Number
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