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 residents’ reaction to news that a convicted sex offender may be living in their community or 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 and their familys’ 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 represented the new community will be sex offender-free. To ensure such result, they plan 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 declaration amendments barring sex offenders from those communities.  Additionally, many more communities around the country have enacted or are considering adoption of similar restrictions.  Although there is little question most residents presented with an amendment banning sex offenders, will approve such proposed amendment, there is far less certainty of whether courts will uphold such restrictions.
 
Judicial Review
Only a few courts around the country have considered the question thus far.  The U.S. Supreme Court refused to review an Iowa court decision upholding a 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 the restriction was an unconstitutional form of continuing punishment, prohibiting offenders from residing in most urban neighborhoods.
  
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 declaration restriction barring sex offenders from residing in the community.  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 other states, the court’s discussion of the issue is interesting. 

The plaintiff in the case, a resident of Panther Valley, challenged several covenant 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.)
 
Public Policy Concerns
Mulligan complained the restriction unreasonably interfered 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 appellate court rejected the first two arguments, but found the public policy argument worthy of discussion.  The court agreed 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 many people choose to live within common interest communities specifically because of the perceived security these communities 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 concern, according to the New Jersey court, is whether restrictions like the one adopted by Panther Valley, 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 the public policy concerns it cited in its decision would weigh heavily in future challenges of similar community association measures. 
 
Association Obligations
Although relatively few community associations have yet to confront the sex offender issue, many who will do so, are likely to 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.  Colorado, on the other hand, does not impose such duty on associations unless the associations have voluntarily undertaken such duty by providing security (or the perception of security).  Colorado associations will also be responsible for security if their governing documents impose such responsibility.
 
By way of example, an association that has an obligation to maintain a common area parking lot, including the lighting thereon that fails to do so, and results in the mugging of two residents walking through the dark parking lot, is likely to expose the association to liability for negligence and damages suffered by the victims.

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:

• Do communities have the authority to bar convicted sex offenders?
• Will communities face potential liability if they fail to bar offenders?  
• If communities do adopt sex offender bans, do they also assume an obligation to ensure that no offenders move in?  And would the association be liable if an offender moves in without the board’s knowledge and harms a resident?
• Is it possible an association might be sued if it does adopt a ban and sued if it does not?  Unfortunately, the answer is probably yes, simply because it is “possible” for associations to be sued by almost anyone for almost anything.