Tuesday, May 22, 2012

The Fourth Amendment and Zoning Inspections

In an interesting new case from Connecticut, Town of Bozrah v. Chmurynski, 2012 WL 371893 (Conn. 02/14/2012), the state Supreme Court reviewed principles relating to zoning inspections under the fourth amendment to the federal Constitution. The trial court had, at the request of the city, issued an order permitting the inspection of the subject property, but the Supreme Court, while concluding that a lawsuit to gain permission to perform an inspection was appropriate procedurally, ruled that under the facts of this case, there was insufficient evidence to establish probable cause.

The court discussed the well-known US Supreme Court precedents, Camera v San Francisco, and See v City of Seattle. The court noted that in the Camera case, the request for the inspection was part of an overall citywide inspection process and not focused on any particular property. The Connecticut court distinguished that situation from the case before it, where the authorities sought permission only to inspect one property, because of the owner’s refusal to permit an inspection, even though the city officials felt that there was a reason to believe that there were zoning or codes violations present. Emphasizing that “the privacy interest . . .  is at its peak when a search of the home, or its curtilage, for zoning violations is contemplated,” the Court concluded:
When a zoning inspection is aimed at a particular property, we find that the government’s interest does not sufficiently outweigh the threat to individual privacy to warrant suspension of the fourth amendment requirement of particularized suspicion.
The Court reversed the decision below because the trial court did not make a determination concerning whether probable cause existed to believe that there was a zoning violation on the property. In fact, the state Supreme Court cast doubt on whether under the facts, such a conclusion could be reached in any event.

This case is interesting and it is certainly worthy of comparison with the 6th Circuit decision in Jacob v West Bloomfield, 531 F.3d 385 (6th Cir.2008). In that case, even though the trial court had ordered the inspection, the property owner (already convicted of the codes violation) refused to give consent and sued when the inspection was made over his objection. The Sixth Circuit concluded that indeed there was a violation of the fourth amendment and that the Township was liable.

The best advice that any inspector can get is to make absolutely certain that he or she has the consent of the property owner before entering any property to do an inspection, or that an administrative search warrant has been issued. Certainly, if there are other exceptions to the Fourth Amendment’s requirement of a search warrant which might apply, such as the open fields doctrine, or heavily regulated industry exception, entry without a warrant or consent is also appropriate. But the further the inspector strays from having consent or a warrant, the closer to potential legal liability he or she comes.

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