Tuesday, March 10, 2015

Lawsuit against DC town-home owner and family occupant(s) by new neighbor raises questions about second hand smoke, as well as even bigger potential new zoning issues

On Monday, March 9, 2015, ABC affiliate WJLA7 in Washington DC reported on a lawsuit against an owner of a rowhouse in Washington DC by a new neighbor, resulting in at least a temporary injunction that the owner not smoke (either cigarettes, or anything else, since marijuana is now legal in DC in small amounts) in his own home (actually a sister's see details below on March 11), due to a second-hand smoke problem.  The suit seeks $500000 in damages.  Observers fear that there will be a wave of copycat suits.
It was not clear if there might be a structural problem (like a hidden hole or passage) allowing smoke to migrate between units.  Maybe smoke aerosols or carbon monoxide can get through the walls.
One thing that is curious is that, of this morning, WJLA has not yet posted the story, and neither has any other major news outlet in Washington.
However, no-smoking policies, even inside units, are becoming more common in apartments and even condominiums (I’m not sure about townhomes). However, among the many properties I rented (or owned, in Texas) I never encountered a restriction, although I don’t smoke.  I have lived in Virginia, New Jersey, New York, Texas, and Minnesota.  It's important to note in the recent DC case, the unit was apparent owned outright as a townhome, with a plot of land in front and in back of the unit, as is often the case with brownstones or rowhouses.  
Smoking could become an issue with guests. While no one who has stayed with me has ever smoked, imagine if this issue comes up with, say, housing political asylees,  Or in new low cost housing projects for low-income people or even the homeless. 
I found a couple of links about no smoking policies in condos and apartments, here and also here.
It is common for hotels to have no smoking rooms, and even to be entirely no smoking.  In fact, smoking rooms disturb me now (mainly in the South), and it is irritating if there is not a no-smoking room. 
William Mitchell College of Law (St. Paul, MN) researched the problem of smoke movement among units.  There is more support for banning smoking in common areas than in individual units.

I’ve covered zoning problems on this blog before.  There are numerous issues where there is at least a hypothetical possibility that an individual tenant’s or unit-owner’s activity, while lawful, could attract unwanted attention or danger to a building as a whole, especially in “today’s world” with its tensions.  

Update: later Tuesday

The WJLA story of home occupant Edwin Gray is here (the story says that it is a family home, below).

Update:  March 11, 2015

The Washington Post has a detailed story in the Metro section, p. 1, by Keith L. Alexander here,  dated March 10 online. The story implies that Gray's sister, Mozella Boyd Johnson, actually owns the home and is a co-defendant. The plaintiffs are a couple Brendan and Nessa Coppinger, both attorneys (she is an environmental attorney); they have one small child and another on the way.  The plaintiffs say they tried to work with the defendants outside the court system first.  The engineering information available now suggests that there could be cracks in the walls, and there could be chimney damage.  The defendants say this damage could have occurred because of the plaintiffs' renovation.  The plaintiffs say they would have helped with the cost of repairs.

To illustrate a point, I looked for a couple cracks in my "own" home.  The picture above shows a settling crack in the bathroom.  If there were a separate living unit behind it, second hand smoke could pass through.  I think this crack appeared in the 2011 earthquake.

Above is a ceiling crack.  It has been there for at least ten years (before the quake).  If there were a living unit above it, smoke might come through (in fact, there is an attic).  This is an "estate" home, and the details is a matter I'll take up soon on a Wordpress blog; I guess I should get to that for my own disclosure purposes. Normally, people think of a "family" home as belonging to the occupants, but that isn't always technically true (and it isn't in my case).
The Post story mentions previous litigation in Orange County, CA (where earthquakes could add to second-hand risk), and New York City.  How impervious normal sheelrock and other wall materials is to trace amounts of toxic gas (like carbon monoxide) as opposed to colloidal particulate material sounds like a good question.

It did indeed take unusually long for this story, with the potential for setting major precedent in residential use and zoning policy all over the nation. to appear online (in detail)  after the initial reports on WJLA.

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