Posted by: Patricia Salkin | July 14, 2009

VT Superior Court Blocks Enforcement of Residency Restriction Ordinance for Convicted Sex Offender

Parties are due back in Court this week (July 16th) in a case challenging the residency restrictions for convicted sex offenders in the City of Barre, Vermont. The American Civil Liberties Union is representing a young man who claims that he can no longer live with his wife and children in Barre as a result of a City ordinance that bars convicted sex offenders from living within certain “exclusion zones” in the City. Basically, the ordinance prohibits such people from moving into an area within 1,000 feet of a public or private school, any park, playground, recreation center, beach, pool, gym, sports field or sports facility operated by the City. The Plaintiff, who was accused of sexual assault as a result of sexual contact with a 15 year old when he was 18, pled guilty to a lesser charge in exchange for a reduced sentence. He served his prison term and received treatment for sex offenders.  After release from prison, he enrolled in school, started a business, and met and married his wife.  Not aware of residency restrictions in Barre, he and his wife and two children moved to the City.  He was then notified by the City that he had to move or face daily fines of $500 for each he remained in the apartment. Currently unemployed and with no savings or other income, the family obtained Section 8 benefits and believe that they have no options as far as other places to live. The City agreed to stay enforcement until the hearing.

The Plaintiff raises two issues: 1) whether the City, as opposed to the State, has the legal authority to create these residency restrictions by virtue of its general powers; and 2) if not, then may it do so pursuant to its express power to regulate public nuisances.

The Court granted a preliminary injunction because they believed the evidence establishes that if the Plaintiff and/or his family move alone, they will lose his Section 8 benefits, have no place to go, and may not receive assistance in finding another apartment. Therefore, the Court said that they face imminent and actual homelessness for at least some period of time.  Second, the Court explained that Dillon’s Rule is still applicable in Vermont, meaning that municipalities only have those powers expressly granted to them by the State, and that since there is no exception for the City of Barre, it is highly likely that the Plaintiff will succeed on his claim that the City lacked authority to enact the residency restriction ordinance. Lastly, the Court said that the ordinance gores beyond the scope of public nuisance law as the stated public interest in protecting  children from being assaulted in the future to support the ordinance is an “individual right” and not a “public right” according to the Restatement.  

Hagan v. City of Barre, (Washington Co. Sup. CT, Vt, 6/29/2009)

The opinion can be accessed at: http://www.acluvt.org/news/barre_lawsuit_injunction_granted.pdf

Other related court documents can be accessed from the ACLU website at: http://www.acluvt.org/issues/barre_lawsuit.php

For more reading on sex offender residency restrictions click here

Thanks to Dwight Merriam, Esq., FAICP of Robinson & Cole in Hartford, CT for forwarding this case.


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