Planning Commission Report

Of particular importance is the attempted link between the comprehensive plan and the zoning warrants in section V. “Findings of Fact.”

1. Comprehensive Plan. The Comprehensive Plan 2002-2020 states “a comprehensive plan does little for a community if it is not implemented. The most important implementation tools are the City’s land use management ordinances: the Zoning Ordinance, Subdivision Ordinance, Erosion & Sediment Control Ordinance, and others”. (pg 5.9) Enforcement of the Zoning Ordinance is an integral part of implementing the Comprehensive Plan. While infrequent use is expected, the proposed amendment would allow the Zoning Administrator another tool in determining if zoning violations exist.

There are two major falsehoods:

1. Is that the current tools are not already working.

2. Is that the Comprehensive Plan will not work if zoning warrants are not included.

The fact that there are only TWO unresolved SUSPECTED issues with property owners out of the thousands and thousands of property owners and properties is proof that the current tools are working quite well indeed. According to the city planning office there are 31,610 properties in the city. (2/31,610 = 0.00632% problem rate. OR… 99.99368% success rate) This indicates that the current tools are not only working, but are working with efficiency numbers that would put industrial engineers to shame. (Some might even consider giving up their first-born to attain comparable results)

The fact that Lynchburg’s economy is one of the best in the country indicates that the Comprehensive Plan is not only working, but working better than most. Further, there is no link to show that having the warrants would make the plan work any more efficiently or effectively than it already is.

10. Impact … On April 12, 2011, the City Council passed Resolution #R-11-033 initiating an amendment to the Zoning Ordinance that would allow the Zoning Administrator the ability to request an inspection warrant from the court magistrate to allow entrance into a dwelling for the purpose of deterring (s.i.c.) (determining?) whether violations exist. The resolution states that the text amendment was initiated in order to take advantage of the authority granted to the City by the General Assembly and to protect the character and the social and economic stability of all parts of the city.

There are two points to be made here:

1. The city is currently doing a great job determining whether violations exist and are doing so without infringing on the citizens right to be secure in their homes in accordance with the 4th and 6th Amendments.

2. The character, social and economic stability of all parts of the city is currently just fine, but even if it wasn’t, search warrants won’t correct issues of character, zoning inspectors won’t correct social issues and entering people’s homes won’t correct economic issues.

10. Impact (cont’d) Chapter 15.2-2286 of the Code of Virginia provides that the Zoning Administrator may request an inspection warrant from the court magistrate to enable entrance into a dwelling for the purpose of determining whether violations (such as the number of unrelated people residing in a dwelling) of the Zoning Ordinance exist. Currently, when the Zoning Administrator receives a complaint regarding the number of people living in a dwelling the following actions are taken:

• Number of occupants is requested from the property owner

• License plates of cars at the residence are checked to determine ownership

• Water usage rates are checked to gauge the number of people living in the residence

• Police Department calls for service are reviewed for information relating to number of people in the residence

Often occupants do not own vehicles and out-of-state property owners are difficult to contact or are not cooperative in providing information concerning occupant information. There is a high turnover rate in the occupants of boarding/rooming houses which also makes it difficult to determine the number of people residing in a building. Neighbors of a property with a perceived zoning violation are often reluctant to testify in court. The majority of complaints are addressed through the actions listed above and violations are corrected. There are other situations where a violation is believed to exist and citizen complaints can not be resolved due to the lack of information needed to pursue legal actions through the courts.

Issues:

1. Attempting to link search warrants with being able to prove that people are residents of a location is a flat out falsehood. There is no way to establish residency in a location other than on paper. If no proof of that residency can be found on paper externally, then no proof will be found internally. The odds are quite high that, amazingly, all but three people staying there will be “just visiting”. Without proof on paper, there is no case in court. A search warrant won’t provide that proof.

2. Ironically 12 members of a family can live in a house, but 4 unrelated individuals cannot. Clearly a family of 12 would be much more cramped and have less room that the 4 non-related individuals (the very concerns that zoning ordinances are typically enacted to prevent) but under current zoning laws the 12 is allowable but the 4 is not. This makes no sense and in fact seems to work against the very purpose of zoning ordinances in the first place. Again, providing search warrants does nothing to remedy this.

3. There are already four particular tools in place that have been very effective in resolving all but two of the many situations that the Zoning Administrator’s inspectors have had to deal with. Again, there is no mention of how warrants would remedy those situations by providing solid proof of residence. Warrants simply wouldn’t fix the alleged problems.

4. The very reasons given by the city as to the limitations of current tools further illustrate the inability of warrants to remedy them.

1. If there are no cars registered to particular occupants at that location, there is nothing on paper to prove that they live there.
2. Out of state property owners may be hard to contact, and may not want to provide information on residents on account of possibly breaching their tenants privacy or otherwise incriminating themselves. The 5th Amendment prohibits law enforcement from compelling individuals to incriminate themselves and the very same principle can be applied here as well. Given this set of circumstances, why would any landowner ever want to cooperate when anything they provided could (and likely would) be used against them?
3. The high turnover of residents illustrates just how unreliable the complaints of neighbors and search warrants are. People are there and gone before a warrant can be issued, carried out or otherwise dealt with, and there’s nothing to keep people from moving right back in after a search. Again, warrants are just ineffective.
4. Neighbors of a property complaint may be reluctant to testify in court, but even in criminal cases, if there is no witness to testify as to criminal activity, the charges are dismissed. The same holds true here. If the issue isn’t big enough for a neighbor to testify over, then it isn’t big enough to invade someone’s house over. Conversely, if the neighbor is willing to testify, there’s no need to invade someone’s house with a warrant.
5. Again, the majority of the complaints are addressed with the tools already available and there is no proof to show that warrants would remedy either of the two alleged instances. However, there is certainly concern that the warrants could be abused as evidenced by the comments of Zoning Administrator Rob Fowler, Planing Commissioner James Coleman and Vice-Chairman Andy Sale in regards to it. The fact that all three had to downplay (but not deny) the possibility of abuse is fairly good evidence that they are worried about it – otherwise, they wouldn’t have thought it necessary to mention.
6. In regards to other situations, although the claim is that this is only in regards to two specific situations, they should be treated similarly to criminal complaints. In criminal complaints, if there is not enough information to resolve the complaint and pursue legal actions in court, then no action is taken. In the case of alleged zoning complaints, unlike criminal complaints where there is the possibility of an actual physical harm to another human being, the only entity potentially “harmed” is the city and that is certainly not physical harm, if there is not enough information to pursue a complaint in court, then it should be dropped. Those standards are in place to protect citizens from overzealous law enforcement in the criminal realm and should also be in place to protect citizens from over zealous government inspectors in the civil realm. Those are the very reasons why this country declared it’s independence in the first place. They are two of the very foundations and pillars of our society and form of government.

The bottom line:

1. The fact that these non-criminal “zoning warrants” would be de-facto criminal search warrants is a clear violation of the 4th Amendment.

2. The warrants are vague and overly broad and quite open to abuse.

3. The warrants – even if issued – wouldn’t actually provide paper evidence that a violation was going on.

4. The current tools are working just fine given the 99.99268% success rate of compliance and there is no need for the warrants.