Friday, Jun 28, 2024

Legal Update: Virginia Supreme Court Reverses Court of Appeals Decision on Warrantless Searches and Zoning Violations

At its recent session, the Virginia Supreme Court took a pivotal step in shaping the legal landscape of zoning enforcement by reversing a Court of Appeals decision related to warrantless searches and zoning violations. This decision underscores the Court’s interpretation of constitutional protections in civil zoning contexts. 

Case Background and Lower Court Decisions 

This case originated from a Fairfax County Zoning Ordinance provision which stipulates that “all searches or inspections authorized by this Ordinance require a warrant, court order, consent, or another exception to the warrant requirement.” Furthermore, it emphasizes that “nothing in this Ordinance may be construed to authorize an unconstitutional inspection or search.” 

The situation began when police, during an unrelated criminal investigation, informed zoning enforcement about a potential zoning violation at the property, advising that county staff needed their own warrant to conduct a search. Despite this advice, county staff conducted a warrantless search on the same day the police executed their warrant and subsequently cited the property owner for a zoning violation. 

The property owner challenged the citation, arguing before the Board of Zoning Appeals (BZA) that the case should be dismissed, or the evidence excluded due to the county’s warrantless search, which they claimed violated the Ordinance. Both the BZA and the Circuit Court dismissed these arguments, leading to an appeal. The Court of Appeals reversed the lower courts, holding that the BZA needed to consider the ordinance provision and the constitutional issues raised. 

Supreme Court Decision 

The Virginia Supreme Court has now reversed the Court of Appeals’ decision, providing several crucial interpretations: 

  1. Irrelevance of the Ordinance Provision to Zoning Violations: The Supreme Court determined that the ordinance provision concerning warrantless searches was not relevant to the question of whether the zoning ordinance was violated. The central issue was whether the property was being used illegally as an office, irrespective of how the evidence was obtained. 
  1. Applicability of the Exclusionary Rule: The Court clarified that the exclusionary rule, which bars evidence obtained in violation of the Fourth Amendment from being used in criminal cases, does not extend to civil cases, including zoning violations. Given that the zoning violation was prosecuted as a civil matter, the exclusionary rule did not apply. 
  1. Civil vs. Criminal Proceedings: The Supreme Court highlighted the distinction between civil and criminal proceedings, emphasizing that while remedies exist for property owners whose properties are searched illegally, these do not include excluding evidence in civil zoning cases. Therefore, evidence from the warrantless search was admissible in enforcing the zoning violation. 
  1. Legal Interpretation: The Court reinforced the limited scope of the BZA’s responsibilities, indicating that its role is to determine zoning compliance, not to adjudicate constitutional issues. 


This ruling by the Virginia Supreme Court clarifies the boundaries of constitutional protections in the context of civil zoning violations. It reiterates that while property owners may have remedies for unconstitutional searches, these do not affect the enforcement of civil zoning ordinances. This decision is expected to have significant implications for the prosecution and defense of zoning violations in Virginia. 

The full Virginia Supreme Court decision can be found HERE