Lynchburg City Zoning Warrants

Article from the News & Advance by Alicia Petska:

The Lynchburg Planning Commission voted in favor of a new ordinance Wednesday that will allow zoning officials to obtain warrants to enter homes where zoning violations are suspected.

Zoning administrator Rob Fowler said the provision would be used sparingly and only after all other options have been exhausted. The “inspection warrants” can only be issued by a judge or a magistrate. The process followed will be the same as that used by police when seeking search warrants, city officials said.

Fowler said warrants can be a useful tool when dealing with hostile property owners who are suspected of exceeding residential occupancy limits, illegally operating businesses out of homes or otherwise violating Lynchburg’s zoning ordinance.

Other city divisions, including building inspections and the fire department, are already allowed under city code to obtain inspection warrants.

Fowler said zoning had not requested that power before because it has traditionally been able to resolve complaints without it. But in the past year, he has “hit a brick wall” in two specific cases, he said.

“Neighbors are calling. They’re furious. They know something is going on. We’ve been out there and we know that something is going on,” he said, adding it has still been difficult to take action because of a lack of cooperation from the property owners.

Fowler said the nature of the cases was concerning enough to prompt staff to propose the new ordinance. Officials suspect the property owners are housing tenants in closets and hallways and locking doors with padlocks, he said.

Fowler said that “99 percent” of all zoning complaints are resolved amicably and he did not expect that inspection warrants would be needed often.

“It’s an option of last resort,” he said. “… We have no intention of knocking down doors or anything like that.”

During a public hearing, only one speaker, C.J. Hicks, a landlord, came forward. Hicks did not speak against the proposal, but did ask what limits would be put on the zoning administrator’s power.

“I would hate to see this abused,” he said. “This is opening the door, literally, to entering any structure.”

The planning commission also expressed concern about the need for checks and balances, and asked numerous questions about how the process would be handled.

City Attorney Walter Erwin said each warrant would specify what the inspector was looking for and officials would not have free rein to search every part of the house. If concerns not related to the zoning ordinance were noted, such as possible criminal activity, the inspector would refer it to the police or other appropriate enforcement agency.

Property owners would be notified of the inspection beforehand and asked to be present. Erwin said it was unlikely that the city would break locks or use other forms of force to gain entry to a house.

After discussing the matter for around half an hour, the planning commission voted unanimously in favor of the new ordinance.

“I’m very confident this will not be abused and it will be very helpful to our city,” said Commissioner James Coleman.

Vice Chairman Andy Sale said it would be valuable for enforcement agents to have an additional “arrow in their quiver.” He said he was satisfied that the third-party review provided by the courts or magistrate would guard against misuse.

The proposed ordinance will now be forwarded to City Council, with the planning commission’s recommendation, for final consideration.

Brief run-down of the issues:

1. There are 31,610 property parcels according to the city GIS office. 2 problems / 31,610 parcels = 99.99368% compliance rate.

2. Of course the Planning Commission was concerned about checks and balances: the potential for abuse is enormous. The one constant that the United States was founded upon was government abusing its power – hence the need to constrain it. If there is a law, you can count on some government official to abuse it.

3. The idea that non-law enforcement trained zoning inspectors would be going into houses under the pretense of non-criminal search warrants, and then reporting any suspected criminal violations to law enforcement makes each non-criminal warrant a de facto criminal search warrant: a clear violation of the 4th Amendment.

4. There is no evidence that having the warrants issued would even provide the evidence they were hopeful it would provide. William Blackstone said it is better than 10 guilty go free than 1 innocent suffer – it is quite guaranteed that innocents would suffer under this.

5. The planning commission voted unanimously for this despite having concerns on checks and balances. The planning commission should be replaced. Vice Chair Andy Sale said it would be nice for enforcement officials to have an extra arrow in their quiver. I’m sure law enforcement would like to have an extra arrow in their quivers also, but current law holds that any extra arrows would be Unconstitutional and that if they can’t get the job done with what they have, it doesn’t need to get done.

You can find the Planning Commission Documents here:

Proposed Inspection Warrants Ordinance: Section 35.1-20.1

Proposed Zoning Ordinance Amendment

Inspection Warrants Agenda Summary Resolution

City Council Resolution #R-11-033

Inspection Warrants Planning Commission Report

Planning Commission Report: Inspection Warrants

City Council Members:
(To encourage them to vote “NO” on the Planning Commission Amendment)

Mayor Joan Foster (At Large): Unsure
Joan.Foster@lynchburgva.gov

Vice-Mayor Ceasor Johnson (Ward 2): Unsure
ceasor.johnson@lynchburgva.gov

Michael Gillette (Ward 1): Unsure
michael.gillette@lynchburgva.gov

Randy Nelson (At Large): Leaning Yes
randy.nelson@lynchburgva.gov

Turner Perrow (Ward 4): Has committed to voting NO
turner.perrow@lynchburgva.gov

H. Cary (At Large): Has committed to voting NO
H.cary@lynchburgva.gov

Jeff Helgeson (Ward 3): Has committed to voting NO
jeff@jeffhelgeson.com