Dear Pot Lawyer,
My neighbor’s pot grow stinks! What can I do?
It all depends on where you live. If your neighbor’s land is zoned for farm or forest use, there isn’t much you can do except ask nicely for your neighbor to install carbon air filters or perhaps seal their greenhouses.
Oregon law treats cannabis as any other farm crop, including for the purposes of Oregon’s “right to farm” law. In this law, the Oregon legislature long ago made explicit findings that “farming and forest practices are critical to the economic welfare of this state,” and “in the interest of the continued welfare of the state, farming and forest practices must be protected from legal actions that may be intended to limit, or have the effect of limiting, farming and forest practices.” Accordingly, the legislature determined that public policy requires that “persons who locate on or near an area zoned for farm or forest use must accept the conditions commonly associated with living in that particular setting.” In other words, if you are lucky enough to live in beautiful rural Oregon, you are going to have to put up with the smell of weed, just like the smells from other farms.
In line with these legislative findings, the “right to farm” law gives cannabis farmers operating in farm- or forest-use areas immunity from nuisance or trespass claims, such as claims based on “noise, vibration, odors, smoke, dust, mist from irrigation, use of pesticides and use of crop production substances” [emphasis ours]. For what it is worth, the legislature is considering an amendment that would lift this immunity if the farming use led to “loss of use of residential property or domestic drinking water”, but it seems unlikely to apply to cannabis odors.
If you are not in a farm area, however, you could potentially bring a nuisance claim for the odor—but it will be an uphill battle. Under Oregon law, a “person whose property or personal enjoyment thereof is affected by a private nuisance, may maintain an action for damages therefore.” However, an interference is only actionable if it (1) would significantly harm a person of ordinary habits and sensibilities, and (2) the gravity of your harm outweighs the utility of the farm’s conduct. In other words, the odor will need to be pretty extreme if you’re trying form the basis of a nuisance claim.
The law also allows trespass claims for mere odors, but the truth is that your best bet is probably to cultivate a positive relationship with your neighbor and work to minimize any odors that you find offensive.
Got a question? Email us at potlawyer@portlandmercury.com. And remember that if you have a legal problem, contact a lawyer! Our educational musings cannot be relied upon as specific legal advice.
