Not-in-my-back-yard (NIMBY) describes the common and (for developers)
frustrating reaction of community residents to plans for the
construction of new housing, new commercial structures, or new
anything in close proximity to where they live. But NIMBY doesn’t
begin to describe the reaction to news that a convicted sex offender
may be living nearby.
NIMBies protesting low-income
housing are concerned (or say they are concerned) primarily about
their property values. Residents protesting the presence of a sex
offender are concerned about their safety. This is only an emerging
issue today, visible in just a few states and isolated communities.
But it promises to become a much larger concern. A few examples, drawn
from recent press reports, highlight the trend.
Developers of a planned subdivision
under construction in Lubbock, TX have promised that the new community
will be molester-free. To ensure that result, they say they’re going
to conduct criminal background checks on all prospective owners and
reject any convicted sex offenders who apply.
Moving in a similar direction, more
than 150 associations in Ohio have approved by-law amendments barring
sex offenders and many more communities in Ohio and elsewhere have
enacted similar measures or are considering them. There is little
question that most community association residents presented with “no
sex offenders allowed” initiatives will approve them. Whether the
courts will uphold those restrictions is less clear.
Judicial Review
Only a few courts have considered
the question thus far. The U.S. Supreme Court refused to review and
let stand an Iowa law preventing sex offenders whose victims were
children from living within 2000 ft. of a school or a day care center.
The Iowa Civil Liberties Union argued that the restriction was an
unconstitutional form of continuing punishment, making it impossible
for offenders to live legally in most urban neighborhoods – an
argument that civil libertarians will no doubt use to challenge
similar restrictions elsewhere.
In what appears to be the only
judicial review of a community association restriction to date, a New
Jersey Appellate Court has considered and rejected a by-law barring
sex offenders,. While this 2001 decision (Mulligan v. Panther Valley
Property Owners Association) was narrowly focused and did not
establish much of a precedent in New Jersey, or any precedent at all
outside the state, the court’s discussion of the issue is interesting,
nonetheless.
The
plaintiff in the case, a resident of Panther Valley, challenged
several by-law amendments approved by owners, including one barring
“Tier 3” sex offenders from residing in the community. (New Jersey and
most other states have adopted versions of “Meagan’s Law,” named after
a child who was murdered by convicted sex offender who had been
released from prison. The law classifies offenders based on the
seriousness of their crimes – “Tier 3 offenders are deemed to pose the
greatest risk of committing new offenses – and requires them to
register with local authorities, who maintain a public data base
indicating where the offenders are living.)
Pubic Policy Concerns
Mulligan complained that the
restriction interfered unreasonably with her ability to sell her
property, imposed an unreasonable obligation on her to identify and
screen out sex offenders, and was contrary to public policy. The
appeals court rejected the first two arguments out of hand, but the
public policy argument gave it pause. The court agreed that sex
offenders are not a constitutionally protected class, covered by
anti-discrimination laws or by the reasonable accommodation
requirements of the Fair Housing Act. “[But] it does not necessarily
follow,” the court said, “that large segments of the state could
entirely close their doors to such individuals, confining them to a
narrow corridor, and thus perhaps exposing those within that remaining
corridor to greater risk of harm than they might otherwise have had to
confront.”
The court also acknowledged that
many people choose to live within common interest ownership
communities specifically because of the perceived security they offer.
But that “understandable desire of individuals to protect themselves
and their families from some of the ravages of modern society…should
not become a vehicle to ensure that those problems remain the burden
of those least able to afford a viable solution,” the court argued.
The key public policy question, the
court said, is whether restrictions like the one adopted by Panther
Valley, if they became widespread, would severely and unreasonably
restrict the residency options of offenders who have served their time
and been released from prison. The lack of data submitted by the
parties on that point made it impossible, the court said, to determine
“whether the result of such provisions is to make a large segment of
the housing market unavailable to one category or individual and,
indeed, to approach ‘the ogre of vigilantism and harassment’ the
dangers of which the Supreme Court recognized, even while upholding
the constitutionality of Meagan’s Law.”
Finding the record inadequate to
decide the merits of the public policy question, the appeals court
rejected the sex offender ban, reversing the lower court, which had
upheld it. However, the court also made it clear that the public
policy concerns it cited in this decision would weigh heavily in
future challenges of similar community association measures.
Association Obligations
Although relatively few community
associations have as yet confronted the sex offender issue, many, if
not most, are likely to do so at some point, and they will find the
legal terrain rocky and uncertain. Depending on state laws and legal
precedents, which vary in different jurisdictions, boards will be
challenged by competing legal obligations and conflicting liability
concerns. For example, associations in many states have a duty to
ensure the safety of community residents. That duty includes an
obligation to anticipate and take steps to prevent dangers that are
reasonably foreseeable. If two residents have been mugged in a dark
parting lot and the board fails to install lighting, the association
might be found negligent if another resident suffers a similar fate.
Under that “negligent security”
theory, associations may also have an obligation to protect residents
from a sex offender in their midst. But because of the lack of
judicial guidance in this area, the extent of the association’s
obligation and the limits of its authority, are unclear. As a result,
this discussion generates far more questions than answers. Among the
unanswered questions:
Conservative Advice
So what, if anything, should
associations do? Given all the uncertainties, a conservative approach
is best. At this point, communities should not adopt policies banning
sex offenders (although owners would no doubt approve them) but they
should respond to reports that offenders have moved into the area,
first by affirming the accuracy of the reports, and then by notifying
owners if the reports are true.
The
Community Associations Institute (CAI), which also recommends a
conservative approach, suggests that boards notify community residents
only if the trustees determine, based on the nature of the offense,
the length of time since it occurred, and other factors, that the
offender poses a “serious” threat. But making subjective judgments of
that kind may expose the association unnecessarily to liability risks.
A blanket policy requiring notice of any offender that comes to the
board’s attention is probably best. That notice should simply state
that an offender is in the community or in the area, and tell
residents how to obtain more detailed information from the sex
offender registry. The board should also inform the on-site security
force, if the community has one, of the offender’s presence.
Additionally, and equally important,
boards should remind residents that most state versions of Meagan’s
Law specifically prohibit “threats, intimidation, or harassment” of
offenders, and caution that any actions of that kind could result in a
law suit and a possible financial judgment against the association.
Given the legal complexities and
risks on all sides of this issue, boards should consult with their
attorney on the substance and form of these notices before posting
them, and they should definitely obtain legal advice before adopting
any policies barring or otherwise restricting the presence of sex
offenders in their communities. No current laws, of which I am aware,
prohibit community associations from barring sex offenders. But
communities that adopt those policies should be prepared for a legal
challenge that could prove very costly to defend.
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