Local governments can inspect inside your private home

The Asheville Tribune ^ | 7/26/02 | By Clint Parker

[CFW]

“We get an administrative search warrant, and then they have to let us in…”

A move by two area municipalities to inspect the inside of residents' homes has opened Constitutional questions about how much authority local governments have to enforce zoning and building codes.

The town of Montreat, NC is considering "periodic safety inspections" of "all homes" along with a long list of other requirements for residences.

At the same time, the Hickory Daily Record reported, the city of Hickory, NC will soon be sending inspectors to more than 300 homes and businesses with broken windows, ripped awnings, battered fences or other maintenance code violations

The inspections come as a result of a land-use plan adopted by Hickory in May 2001 which included the new rules on property maintenance.

City officials in Hickory held off on any immediate crack down on violations to give homeowners a chance to make repairs. A citywide survey began last August using a college student intern from Lenoir-Rhyne College who drove street by street through Hickory and noted potential problems. The survey was completed earlier this month.

Armin Wallner, Hickory's building inspections director, said the ordinance mainly covers the exterior of the home. "If your buffer area died . . . we'd say you’ve got to fix those buffers. Or if your sidewalk was breaking up or if your driveway was breaking up or your fences are looking in disrepair or the outside of your building needs a little paint or you’ve got broken windows, we would be notifying owners of those conditions and asking if they would voluntarily fix those," said Wallner.

While the ordinance deals mainly with outside appearances, Wallner said that they have had the right since the 1960s to inspect the inside of the home if they had a petition that was signed by five neighbors.

"The only time we go in the inside of a house is when we get a petition filed by five residences," said Wallner. According to Wallner, city building inspectors would then inspect the inside of the house in question.

Asked if a warrant was needed by the inspectors to enter the house, Wallner first said, "No. We've been doing that since the 1960s." Asked what would happen if a homeowner refused to allow inspectors into the house without a warrant, Wallner replied, "We get an administrative search warrant. Then they have to let us in, but that never happens."

Wallner used a broken window as an example of the new property maintenance ordinance. "If we see a broken window, we're going send you a letter asking you to fix it."

Fines for violations are $50 per day until the problem is fixed. Wallner added that "at some point" if the problem were not fixed, a violator would have to go in to see a magistrate.

Asked what would happen if a person didn't have the money to fix something such as an elderly woman on a fixed income. "Well, we have neighborhood associations. So we would probably go to the neighborhood association and see if there's any help." Asked what would happen if there were no help available from the association, Wallner said, "Then we would ask then to get in touch with... We would do what we could, but at some point someone's got to fix the broken window."

After a pause, Wallner said, "You'll always have those situations that are tough, you know, and we realize that too." He then sighed and said, "Ordinances were made to be followed. They're not all good." He then immediately corrected himself and said, "I mean they're not all bad."

In Montreat, the planning and zoning board is conducting three hearings on new regulations the board wants to impose on homeowners. The list of regulations includes:

* Mandating that "every homeowner be required to provide an off-street parking space for every bedroom in the house."

* "...periodic safety inspections of all [privately owned] homes by the Black Mountain Fire Dept., especially those which are rented."

* Requiring all "property owners who rent housing to obtain a rental privilege license from the Town of Montreat, and that provision of such license be worked out..."

* Requiring the use of only natural materials for homes and structures, to include "wood, stone and natural materials."

* Regulating what "proper landscaping" on private property would be; to include what type of bushes, trees and plants are appropriate in a personal flower bed or private garden.

* Using the Land of Sky Regional Council as a resource to help develop "alternatives to paved parking... to minimize storm water run-off."

* Limit the amount of vehicles traveling through the valley "thus decreasing the dangers of air pollution damage to humans, animals and plants."

* Incorporating shuttle buses to run people into Montreat from external parking facilities.

* Regulating noise from automobiles, summer conferences and heating and cooling equipment.

* Obtaining "a minimum of 3,000 acres (to be preserved) in order to provide a large enough un-fragmented preserve to maintain biodiversity and to off diversity of wilderness recreational experiences."

* Conducting a "full inventory of plant and animal species" in Montreat to see if there are any species that would need to be titled as "threatened" or "endangered" within the "Montreat Wilderness" area.

* Placing "platted lots which are adjacent to the Montreat Wilderness boundary, into the Montreat Wilderness, thus adding additional wilderness acreage closer and more accessible."

* Closing any additional hiking trails or hiking shelters within the Montreat Wilderness "in order to protect and preserve the wilderness environment from user impact."

* Requiring any "large groups" holding public events to "provide a plan for traffic control and parking and demonstrate means of implementation to the Town for approval."

Montreat Town Administrator Pam Snypes said she doesn't know exactly what the zoning board is proposing because she is not involved in the meetings. "That's not anything I attend, and I'm not sure what their agenda is for each meeting," said Snypes.

Asked who could answer some questions on the new regulations, Snypes told the Tribune to call the Mayor of Montreat, Letta Jean Taylor. Asked if she was on the zoning board, Snypes said, "No." Asked if it would be better to call someone on the zoning board, Snypes replied, "Well, I think first of all, you need to speak, like I said, with the mayor. According to our personnel policy, when it's a media contact it's usually the mayor or the town administrator or the department head who speaks with the media."

The Tribune tried to reach Mayor Taylor, but she did not return our call by deadline.

Anna Cannon, a Montreat resident, has been to one of the meetings and plans to attend the other two. She told the Tribune after hearing the proposals she got up at the first meeting and said, "I don't understand why you all are not outraged at some of those proposals because they're draconian in their nature and they're unconstitutional."

Cannon said the problem the town is trying to fix is not with the homeowners, but with the conferees at Montreat College, "but they want to punish the homeowners... It's the conference that brings in the majority of people."

Cannon said that the town already tries to manage homeowners down to the most minute detail explaining that when she needed to repair the roof on her 100-year-old home the construction company had to obtain a $30 permit from the town and approve the plans for repair. The approval took two weeks. During which time it rained. The rain caused water damage to the inside of her home.

When asked why she had to get approval from the town to fix her roof, Cannon said she was told that the town has to maintain the "character" of the community. However, Cannon explained, the town approved a variance for an Asheville doctor who moved to Montreat and asked for a 2000 square foot addition to the home he bought. "The additions came within inches of the property line," said Cannon.

It seems no town is immune to the micro-management from town and city.

Hendersonville has ordinances requiring that "every habitable room shall have at least one window or skylight facing directly toward to the outdoors," "all exterior openable windows and doors" will have screens, and even that hot water heaters have "a temperature of not less than 120 degrees."

Asheville is noted for its strict zoning regulations, even Hickory's building inspections director Wallner made mention of it in his conversation with the Tribune. Asked if he was envious of the Asheville regulations, Wallner said, "No, too much work."

[Jonathon Spectre]

JS: Which one of the five neighbors wants to try and come in first?

Publius: You got to be kidding. They get the gorillas with the guns to do it for them.

Which one of the gorillas with guns wants to be first?

[Kay Ludlow]

Interesting Land Use plan. Here in PA it's called a Comprehensive Plan, but calls for pretty much the same thing. The PA Smart Growth Inititative, with Growing Greener funding (Former Gov Tom Ridge's projects) are funding, encouraging and hoping to require these same regulations in every county and community in PA.

In the Centre Region (home to PSU) we've had some of this for years, but of course it isn't enough. We've had a rental inspection program for probably 30 years, and in fact it's turned into a 'tool' for neighbors and disgruntled renters to get back at property owners with. You pay for the rental permit every year, then are on the list for "random" inspections. I've been really amazed at how many widows (husband was the landlord) come up on the list for random inpsections within a year of their bereavement...

For our latest comprehensive plan update, they want to require more alternative transportation, get more control of landscaping, and require the exterior with Natural Materials and non-reflective glass. Oh, and for new construction, they want no building on hilltops, no building on slopes, and no building on farm-fields! We've been working at getting the citizens informed about what these plans include, since when people KNOW, they OPPOSE! It's just mostly done behind closed doors, with the final project (and price-tag) presented to the community.

It all seems pretty unconstitutional to me... but few have the $$$ to challenge it. A few of us intrepid local Freepers are organizing though, and standing up for our rights - leaving local government officials pretty surprised!