Posted by: Patricia Salkin | July 31, 2008

Local Zoning Ordinances Imposing Distance Requirements for Convicted Sex Offenders Struck Down by New Jersey Appellate Court

The Townships of Galloway and Cherry Hill each adopted a zoning ordinance that prohibited convicted sex offenders (CSOs) from living within 2500 feet of any school, park, playground or daycare center in the Township. The ordinances provided for penalties of fines and imprisonment if the CSO failed to move within sixty days of notice from the Township. CSOs in each of the Townships challenged the ordinances.

A New Jersey appellate court concluded that the ordinances were preempted by State statute and were therefore invalid. Specifically, the Court said that Megan’s Law was a compilation of laws that pertained to CSOs (see New Jersey Stat. Ann. §§ 2C:7-1 to 2C:7-19, and 2C:43-6.4). Megan’s Law required, among other things: registration; notification as to residence in the community by the CSO; and parole supervision, usually for life, of the CSO by the Department of Corrections (DOC) over things such as residence, rehabilitation, and employment.

In determining that the Legislature intended to preempt local control, the court looked at five factors.  First, the court found that the Ordinances conflicted with Megan’s Law because: (1) in prohibiting CSOs from residing in virtually all, or nearly all, of the entire Township, they interfered with the ability of parole officers to carry out their duty under Megan’s Law to find the most appropriate housing for CSOs with goals of rehabilitation and reintegration into the community; (2) they had no termination clause, while Megan’s Law relieved CSOs from notification and community supervision provisions after fifteen crime-free years; (3) Megan’s Law specifically prohibited the denial of “housing or accommodations” to CSOs by private as well as public entities, and the Ordinances effectively denied such; and (4) New Jersey’s criminal code, which Megan’s Law was under, prohibited local governments from enacting ordinances that conflicted with or preempted provisions of the code.

Second, the court found the Legislature’s intent to exclusively regulate the activities of CSOs living in the community was clearly demonstrated by: (1) the Legislature’s enactment of comprehensive legislation in Megan’s Law; (2) the development of Attorney General Guidelines for law enforcement for the implementation of Megan’s Law; and (3) the adoption of DOC regulations governing parole supervision of CSOs living in the community.

Third, the court found that the oversight of CSOs living in the community required uniform treatment. The court said this was because protection of children from a CSO committing the crime again and rehabilitation of CSOs were matters of statewide concern, not a problem particular to a municipality. The court also found that residency restrictions imposed by the ordinances hampered a CSOs ability to be near family and employment, which could increase the chance of a repeat offense.

Fourth and fifth, the court concluded that Megan’s Law was so pervasive that it precluded the coexistence of municipal regulation, and local ordinances were an obstacle to the accomplishment of the full purpose and objectives of the Legislature.

G.H. v. Township of Galloway, 2008 WL 2726635 (N.J. Super. A.D. July 15, 2008).

The opinion can be accessed at: http://lawlibrary.rutgers.edu/decisions/appellate/a4036-06.opn.html

This edited abstract appears in the August 1, 2008 Quinlin’s Zoning Law free on-line version. See http://west.thomson.com/signup/newsletters/215.aspx for information about how to subscribe.


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