4th Amendment prohibition of unreasonable searches applies to land use agencies

Bozrah v. Chmurynski, 303 Conn. 676 (2012), Part I:

For those of you who read with music in the background, your choice of music to accompany this reading most appropriately would be Neely Bruce's setting of the "Bill of Rights." Neely is a composer and professor of music at Wesleyan University. He is in the process of rehearsing a production of the Bill of Rights to be performed for United States Supreme Court Justice Antonin Scalia who will be at Wesleyan University on March 8, 2012. ( I will be a soprano in the chorus.) Click here to listen and watch a previous performance of the piece in Washington, D.C. For the 4th Amendment, begin at 19:25. For those who read the last page of a mystery first, begin at 20:34 to pinpoint which portion of the 4th Amendment the Connecticut Supreme Court held was violated in the Bozrah case discussed below.

On February 14th the Connecticut Supreme Court issued its unanimous decision in Bozrah v. Chmurynski, 303 Conn. 676 (2012). (Click here or here for the decision.) In that case the Supreme Court reversed the trial court order requiring the private landowners (the defendants) to allow the zoning enforcement officer (the plaintiff) to inspect their residential property. The Supreme Court held that the trial court did not apply the standard of proof required by the 4th Amendment to the U.S. Constitution, which prohibits unreasonable searches by the government unless a search warrant is issued based upon probable cause.

Why is this appearing in a blog on state wetlands law? Yes, there are differences between zoning law and wetlands law. In zoning there is a statutory right to conduct inspections; not so, in the wetlands law. Yes, the zoning case involved inspection of a residence and its curtilage. ("Curtilage" was defined in United States v. Dunn, 480 U.S. 294 (1987), as the area immediately surrounding a residence that "harbors the `intimate activity associated with the sanctity of a man's home and the privacies of life.' ") Maybe the wetlands inspections will fall into the "open fields" category instead. Maybe, but then again the upland review area close to a residence may well be part of the curtilage.

A reminder: these comments shouldn't be construed as a primer on 4th Amendment jurisprudence or any other aspect of wetlands law. At best they should give anyone, on behalf of a wetlands agency, reason to pause and seek legal advice before entering property without the owner's consent to conduct a wetlands inspection.

What happened in Bozrah:

The first selectman by e-mail directed the zoning enforcement officer (ZEO) to inspect residential property at a specific address for unregistered motor vehicles and "other junk." Five adults reside at the address. The ZEO arrived and eventually spoke with the land owner who refused to consent to the ZEO's inspection of the residential property and curtilage. Without conducting a search the ZEO observed the following while at the address:

· six vehicles
· not in disrepair
· with license plates
· registration status unknown.

The ZEO departed and consulted with the town attorney. The ZEO returned to the property. In the interim a fence had been installed blocking the view from the street. The town initiated a civil suit seeking an injunction to allow the ZEO to conduct the inspection authorized by CGS § 8-12. Eventually the trial court held a hearing on the request for injunction and granted it. The trial court relied on the statute and municipal regulation authorizing inspections. It recognized that (1) the reasonableness requirement of the 4th Amendment applies to zoning inspections, (2) reasonableness can be satisfied with a valid governmental purpose and concluded (3) a court-ordered injunction is a proper vehicle to satisfy the 4th Amendment's "search warrant" requirement.

Here is the text of the 4th Amendment (Are you already humming along? I was, when I got to page 684 of the decision):

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The CT Supreme Court's reasoning relied on already developed federal case law:

Is there a reasonable expectation of privacy? Yes. Homes and the curtilage area have been deemed areas of legitimate expectation of privacy. The fence, once installed, defined the area of curtilage. The 4th Amendment applies to civil as well as criminal searches. The 4th Amendment applies to business as well as residential properties. Where there is a reasonable expectation of privacy, a search conducted without a search warrant issued upon probable cause, is unreasonable.

Probable Cause: What it is

"A preliminary showing of facts within the knowledge of the zoning officer and of which that officer has reasonably trustworthy information that are sufficient to cause a reasonable person to believe that conditions constituting a violation of the zoning ordinances are present on the subject property." Id., 692-93.

Probable Cause: What it isn't

"Common rumor or report, suspicion, or even 'strong reason to suspect' . . ." Id., 686.
"[S]imple good faith on the part of the arresting officer is not enough . . ." Id., 686.

Often all that a wetlands agency or staff has knowledge of, when motivated to inspect private property, is a rumor or suspicion. As you see, that does not constitute probable cause.

The state Supreme Court distinguished a search motivated by a specific complaint with a general search of an area to implement regulatory enforcement. An example given was the routine annual inspection by a city housing inspector. In that case the motivation was neutral, general and not motivated by a complaint.

Finally, the state Supreme Court ruled that a judicial hearing before a judge that results in an order requiring the defendant to allow a search of private property is the functional equivalent of search warrant . . . as long as the order is based upon probable cause.

As to the facts in the Bozrah case, the Supreme Court concluded:

"We do not believe that the mere fact that six vehicles, none of which appeared to be in disrepair, were parked on the property of a home where five adults resided provides sufficient reason to suspect a violation of the Bozrah zoning regulations." Id., 693.

We'll consider further thoughts in coming posts on search warrants, inspections conducted without consent and the right for wetlands agencies to conduct inspections.

Creation of state court land use docket announced

It was announced today that a state court land use docket will be created within the state court system. The Honorable Marshall K. Berger will preside over the docket. The news was broadcast today by a phone call from Judge Berger to Attorney Ira Bloom, chair of the Planning & Zoning Section of the Connecticut Bar Association. The topic of a dedicated land use docket has often been discussed among Planning & Zoning Section members. (For the non-attorneys reading this, the CBA Planning & Zoning Section is not, as its title might imply, limited exclusively to those land use matters; all land use matters, such as wetlands and historic districts, fall within the ambit of the section.) The details of the location of the docket, its functioning, etc. will be disclosed at a later time.

A dedicated land use docket could serve the purpose of greater predictability or uniformity of decision-making. This would be useful to all participants in land use controversies. Perhaps more so now, since Chief Justice Chase T. Rogers announced to the CBA Planning & Zoning Section in a talk delivered in November 2009 that we would be seeing fewer petitions for certification granted, the only means for appealing a case to the Connecticut Supreme Court. With fewer cases decided by the Supreme Court, the lower court decisions take on greater importance.

Judge Berger handled land use cases when in private practice, representing municipalities. Two of his cases are still routinely cited. Anyone who has researched the burden of proof in claiming a statutory exemption in the wetlands law or the factors considered when wetlands agencies apply for injunctions has come across Conservation Commission v. Price, 193 Conn. 414 (1984) (click here to read the case) or if you wondered whether the attorney's fees provided by wetlands statute include fees for the appeals to the Supreme Court (yes) you would find Conservation Commission v. Price, 5 Conn. App. 70 (1985) dispositive. (Click here to read the case.)

Restoring and Creating Wetlands? The Envelope, Please

As the parent of one college-age daughter and one college-bound daughter, I could say I took the semester off from posting entries to the blog or I could just get down to business. The latter.

Last week an entry in the New York Times blog on energy and the environment, click here, reported on an article (click here) released earlier that week on the Public Library of Science Biology ("PLOS Biology") website, a peer-reviewed open-access journal published online. The article reported on what the authors characterize as only partial success of restoration and creation of wetlands in the 20th century, by examining 621 wetlands systems worldwide, comparing those impaired or recovering sites to 556 functioning/unimpaired wetland sites.

The article, "Structural and Functional Loss in Restored Wetland Ecosystems," was authored by scientists from California, Spain and France. Some trends that were noted: large wetlands areas (over 100 hectares) in warm climates recovered more rapidly than smaller areas in cold climates; riverine and tidal wetlands recovered more rapidly than isolated wetland segments.
The scientists reported that animals, such as birds, bats and flying insects (midges) returned within five years, while macroinvertebrates such as water fleas, returned within five to ten years.

They noted, however, that the population levels were neither as high nor as diverse.

The plant communities recovered the slowest, on average taking thirty years to recover. Again the plant populations remained less abundant and diverse, recovering to approximately 75% of prior condition. According to the authors, restoration can succeed but over longer timeframes and without complete recovery.

When the state wetlands law was amended in 1996, click here for Public Act 96-157, the legislature included explicit language regarding mitigation of wetlands impacts. Mitigation measures include activities to "prevent or minimize" pollution or damage, "maintain or enhance existing environmental quality." The legislature established a hierarchy of preferred activities, in order of priority: "restore, enhance and create productive wetland or watercourse resources." (This language is found in two sections of the statute: § 22a-41(a) (4) and § 22a-42a (d) (1).)

If the authors of this recently reported article in PLOS Biology site are correct, perhaps "restoring" should take a secondary position and "enhancing" or protecting current wetlands a primary one.

There's an opportunity soon to hear about the results of some local (CT) and regional (NY, MA) mitigation projects, that include relocation of a watercourse, wetlands creation, and other mitigation projects that have been monitored, at the CT Association of Wetlands Scientists' annual meeting on March 22, 2012. Click here for an agenda and online registration.