Municipalities in New Jersey are taking action now more than ever to protect their residents – especially their children – through Drug-Free School Zones, DNA identification programs for children, criminal background checks for youth athletic league coaches, and now “Pedophile-Free Zones”. In May 2005, Hamilton Township, New Jersey passed a “Pedophile-Free Zones” Ordinance that may be the strongest in the nation. The Ordinance prohibits convicted sex offenders from living within 2,500 feet of where children congregate, such as schools, parks and playgrounds. In doing so, Hamilton Township followed the lead of towns and municipalities in over 14 other states. Many common interest community associations are trying to employ similar methods to protect its members – especially their youngest and most vulnerable.
In Mulligan v. Panther Valley Property Owners Ass’n, 337 N.J. Super. 293 (App. Div. 2001), the New Jersey Appellate Division addressed the issue of whether a condominium association could ban all “Tier 3” offenders – the highest level sex offenders in New Jersey – under “Megan’s Law”, N.J.S.A. 2C:7-8(c)(3). The Trial Court upheld the association’s amendment precluding such individuals from residing within the common interest community. While the Appellate Division did reject Mulligan’s argument that such a restriction unlawfully infringed on her right to sell or lease her property, ultimately the Court refused to address the validity of this amendment due to an insufficient record. However, the Appellate Division left two issues unanswered – which are now before the New Jersey Supreme Court in Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Association, namely: (1) whether common interest community associations perform “quasi-municipal” functions and must be considered “quasi-municipalities”; and (2) whether the Court must analyze amendments to associations’ governing documents based on the “business judgment rule” or based on a higher, constitutional standard. Ultimately, the constitutionality of such “Pedophile-Free Zones” in common interest community associations may turn on the Supreme Court’s decision in Twin Rivers.
Critics of “Pedophile-Free Zones” and “Pedophile-Free Associations” argue that such restrictions are unconstitutional, stating that towns and common interest community associations are essentially making it impossible for offenders to live legally in most urban communities, which have a multitude of schools, parks and playgrounds. Moreover, once in place, these restrictions may prove expensive and difficult – if not impossible – for a community to enforce. The basis of the restriction is evident – protection and safety. However, does it provide a false sense of security? As critics have pointed out, banning the most serious of sex offenders from owning or living in your common interest community does not preclude a sexual predator from entering your community. Many communities have shared facilities and common elements, such as clubhouses, pools and exercise facilities, and other individuals such as maintenance contractors and deliverymen have access to the community and children on a daily basis. Moreover, these concerns over protection and safety may not be strong enough to outweigh the constitutional challenges such restrictions may soon face. Convicted sex offenders – through legislation – lose certain constitutional rights, including the right to vote or the right to bear firearms. Whether these additional restrictions would violate the constitutional rights of an individual to own property as well as other rights remains to be seen.