“When Martha Boneta hosted a birthday party for a friend’s 10-year-old daughter on her Virginia farm, she didn’t expect to have the county come knocking on her door.
But come knocking it did — threatening her with nearly $5,000 in fines.
Fauquier County officials say Boneta, owner of the 70-acre Liberty Farms in Paris, Va., didn’t have the proper permit to host the party, nor to sell produce on her own land. Zoning Administrator Kimberley Johnson sent her a cease-and-desist letter in April after the party, warning her with the financial consequences if she didn’t stop her activities within 30 days.
Boneta told Fox News she wasn’t doing anything wrong — that selling produce is just about as old as farming itself, and that curiously she seems to be the only one being targeted — possibly because of a neighbor’s complaint.
“It’s rather odd that I’m the only farmer in the county having these issues,” she told Fox. “It’s customary to do these things. It’s done on farms throughout Virginia to help farming and agriculture.”
Boneta did actually get a permit last year to sell fresh produce and crafts at her “retail farm store,” but after she received it, county regulations changed to require an additional permit to sell certain items — including handspun yarns and birdhouses — once covered under the one Boneta already had….”
Think things are better here in Ontario Canada? Think again. From Peter Jaworski, in the Huffington Post:
“Many municipalities in Ontario permit what can only be described as unreasonable search and seizures through Power of Entry (sometimes called Right of Entry) provisions. These provisions permit municipal law enforcement to warrantlessly waltz onto your land on the mere suspicion of some persnickety by-law or zoning ordinance.
Section 436(1) of the Ontario Municipal Act allows municipalities to pass Power of Entry by-laws. This section of the Act empowers municipalities to pass by-laws “providing that the municipality may enter on land at any reasonable time” for purposes of inspection, including to ensure that by-laws are upheld.
No notice to the landowner is required, no warrant needed. Apart from a requirement that the officer present “proper identification” upon request, there are no hoops to jump through whatsoever.
By-law might argue that it’s because by-law offenses are minor — typically resulting in nothing more than a fine — that power of entry is warranted. But this reasoning is precisely backward.
Suppose a librarian were to see an overdue library book in your car, and he sees that you’ve left your door unlocked. Would anyone argue that he should have the power to enter your car and take the book, leaving an overdue book fine on your front seat? Would you accept his argument that an overdue library book is just a minor offense, so his power to enter an unlocked car is, really, no big deal?
Of course we wouldn’t.
The reason why we wouldn’t is because overriding something of value, like our expectation of privacy and control over our property, requires there to be something at stake that is at least of comparable value.
The fact that by-law offenses are relatively minor is a weighty reason to repeal section 436(1) of the Municipal Act. So is the fact that we have to trust that by-law officers are acting in good faith and on the basis of some ordinary common sense a reason to repeal the extraordinary and unreasonable power of the warrantless waltz.
By-law is required to investigate complaints, which remain anonymous. To my understanding, there is nothing preventing someone from Alberta’s Fort McMurray from calling in a by-law complaint against someone he has a beef with in Ontario’s Township of Tay.
“I think there’s a dog loose in Sally’s backyard right now,” he might say. “Go sic an officer on her.”
Supposing the by-law officer also has a beef with the Tay resident, or is curious about what her backyard looks like, he can go and disrupt her day with a spurious investigation.
Actually, in the Township of Tay, he might disrupt her in the middle of the night. In violation of the Municipal Act, which clearly states that municipalities can only empower officers to do the warrantless waltz “at any reasonable time,” the sage councillors of Tay decided to drop the “reasonable” part. By-Law No. 2012-11, “[b]eing a By-law to regulate or prohibit animals being at large or trespassing and to provide impounding in the Township of Tay,” comes with the following section 4 “Right of Entry” provision:…”