City council modifies zoning inspection regulation

Inspection regulations regarding number of unrelated inhabitants in apartments changed on 4-3 vote

The laws contained within Lynchburg, Va.’s Zoning Ordinance require that three or more persons who are unrelated do not obtain residency together. Lynchburg City Council amended the law Oct. 11 to allow homes or apartments to be lawfully searched if there is presumed to be more than three unrelated residents living there.

The College Constitutional Conservative Christian Coalition (C5) has been following this story since July and is a club on Liberty’s campus. The Board, which is comprised by Craig Storrs and Anthony Simonetti, issued a formal statement against the amendment.

The statement begins: “We denounce this new law on Constitutional and ethical grounds,” and continues in a nearly 700 word document, which outlines their justifications and deductions on the matter.

Lynchburg could, however, be facing what is the lesser of two evils. Before the existence of the current law, there was a prior inspection proposal that was not accepted by city council, but was molded and refined into what Lynchburg has today.

“The Planning Commission authored the first one, which was just abysmal,” Storrs said.

One member of city council, who rejected the initial plans set forth by the commission, took it upon himself to pen what has now gone on to pass city council by a 4-3 split. Councilman Randy Nelson modified the sections of the previous proposal that he found to be ambiguous or incomplete and is the author of the Zoning Inspection Regulation that is currently in place.

Under the previous code, there was no clarification as to when an inspection could be performed. Under the current regulation, it reads, “to enter the subject dwelling during a specified period of time during daylight business hours.”

“(There was also) the need for a judge to hear the petition and not a magistrate who possesses lesser knowledge of Constitutional safeguards,” Nelson said.

Under the previous proposal, a hearing could be brought before a magistrate, which is no longer permissive under the law. The minimum requirement for a magistrate is a bachelor’s degree and they do not hold a law degree. Nelson modified the first proposal and denied a magistrate the right to grant a zoning warrant.

One area that Nelson and others differ is the protection of the Fourth Amendment right. Nelson did not feel the protection in the commission proposal was adequate of personal privacy, and though he made changes, this is still the area that most reject despite his efforts.

“(There was a) need for greater notice to residents who had little to do with the objectionable conditions of their residence but whose privacy would be directly impacted by an inspection,” Nelson said.

Because of the changes he appended, the law now provides five days to appear before the judge in a hearing or to provide a written defense and five days of notice before the inspection can occur if it is deemed necessary by the judge.

According to Nelson, the five days of notice that the current law provides supersede the first proposal in privacy protection.

“(During an inspection, the agent) would look for zoning violations of non-permitted uses or excessive occupancy, but he does not have to ignore anything else he observes that is in plain view while there. That is why I wanted the advance notice, to allow residents to clean up the interior before inspection,” Nelson said.

Although Nelson felt it was imperative to add greater protections of this right in the fine-tuning of the original proposal, others still feel that not enough was done, or that inspections linked to the number of unrelated people in a private residence, are altogether unconstitutional.

Storrs and Simonetti represent a number of constitutional conservative voices in the community who are unhappy with a violation of rights and attended the public hearings.

“The overlying issue with both (the first proposal and the current law), is the 4th Amendment concerns,” Storrs said.

The Fourth Amendment is the portion of the Bill of Rights that guards one from unreasonable search or seizure and also requires a warrant when a reasonable search is due. Searches with a warrant are already lawful when made by law enforcement or emergency officials.

In the early 1970s, the Virginia attorney general interpreted that commonwealth law gave the zoning office just as much legal authority to obtain a search warrant as the firemen, policemen, and other emergency officials.

After two cases of noncompliance with the law and a struggle to obtain warrants in 2010, Fowler said that although Virginia code allows for the inspections, the planning board was advised to distinctly include the right of inspections into their city code so that there wouldn’t be further discrepancies about whether or not it was legal.

Still, Storrs objects to the notion.

“The government is best, which governs least,” Storrs said, referencing a quote often attributed to Thomas Jefferson. “Just because a government can do something, doesn’t mean it should.”

James Price, a commuter student at Liberty, shared a similar concern.

“I don’t think it’s right for the (city) government to have the ability to tell us who can and can’t live with us. That’s just too much power,” Price said.

Storrs also referenced the two cases of non-compliance in 2010. According to the Census Bureau, Lynchburg boasts a population of 72,596 citizens.

“With a virtual compliance rate of 99 percent, it is hard to see this law as anything other than an infringement on personal rights,” Storrs said.

The 72,596 citizens of Lynchburg will ultimately have to be the ones who decide, and for the current time, it seems they have done just that unless there would be a motion to repeal or amend what was put into law in October.