Lake Naomi Club, Inc. v. Rosado, ___ A.3d ____ (2022, Penn).
Issue: Can a private, planned community adopt a restrictive covenant that prohibits lifetime registered sex offenders from residing within that community?
The Facts: At Pocono Pines’ 2013 annual meeting, residents raised concerns about a sex offender who was living in Lake Naomi. Accordingly, on March 30, 2016, Pocono Pines (“Association”) amended its Declaration to provide that no registered Tier III sex offender “shall occupy or reside in any [l]ot, dwelling, or common area within the boundaries of” the [Association] and “[n]o [unit o]wner or agent of an owner shall knowingly allow such a [p]rohibited person to occupy or reside in” the Association. In 2015, a unit owner was convicted of sexual misconduct against a child, received 72 months of incarceration and was required to register as a Tier III sex offender for life. The unit owner was released in the fall of 2018 and shortly thereafter the Association advised him that he needed to vacate his property. When he refused to move out, the Association filed suit seeking to enjoin the unit owner from residing at the Association.
Decision of the Trial Court: The Association called “several expert witnesses” who testified on the recidivism rates of sex offenders and the negative impact they have on property values. The manager also testified on the child-centered nature of the Association and its pool. The unit owner claimed the Declaration amendment was unconscionable and against public policy. He presented evidence that he has fully complied with the requirements of sex registry and his parole and has committed no offenses since his release from prison in 2018. The trial court found the prohibition against sex offenders “void as against public policy.” The reasoning of the trial court included:
What the Association is attempting to do is to protect the children in their community by banning this unit owner. The effect though would be to simply move the offender somewhere else, perhaps closer to some other families with children. The trial court found that most associations are “child-centered” and that this is not “unique” to the Association. It concluded by holding that “[f]inding that these associations are free to remove sex offenders would have a similar deleterious effect on the statewide approach to sex offenders that concerned the [Pennsylvania Supreme Court].”
The Association appealed.
Appeals Court: The Court of Appeals found that the Association governing documents are a contract and a contract can be voided on public policy grounds only if it violates a dominant public policy established by statute or other legal precedent. Here the sentencing and parole authorities demonstrate that when the state places an offender in a particular work-release program, the state has determined that the offender’s placement is consistent with both the public’s safety and the needs of the offender to reintegrate into society. Banning offenders with violent histories conflicts with the state’s determination that an offender “is suitable for placement” which includes a conclusion that “public safety would not be jeopardized by the offender.”
The Court then found that “the regulation of released sex offenders is controlled by state law and may not be controlled by local ordinances or restrictive covenants…. [T]he Parole Board is charged with balancing public safety with the rehabilitation and reintegration of released sex offenders.” The Declaration amendment “effectively restricts the Parole Board’s ability to release a sex offender to his own residence, even after the Parole Board has determined that the offender’s reentry plan is adequate and there is no reasonable indication that he poses a risk to public safety.” The amendment would therefore interfere “with the statewide statutory schemes that have been created to achieve a balance between public safety and rehabilitation.” The court went on to hold that the Association is “depriving him of his fundamental right to possess and protect his property” and that the amendment has not been shown to make the Association “any safer than the [State’s] extensive legislative enactments regulating the rehabilitation and reintegration of sex offenders.”
Based on the above, the Court of Appeals concluded that the Declaration “violates … public policy by unlawfully precluding a registered Tier III sex offender from living in his own Parole Board-approved home… [and] properly declared the covenant void as against public policy and … affirmed [the Trial Court’s decision].
Lessons Learned:
- What a difference a decade makes. Ten years ago the country was dealing with a number of sex offender repeat cases and horrific crimes (Brenda Groene (Washington), Sarah Lunde (Florida – 13-year-old murdered by sex offender), Jetseta Gage (Iowa – 10-year-old kidnapped and murdered by sex offender), Jessica Lunsford – (Florida – 9 year old kidnaped, raped and murdered by sex offender), Jacob Wetterling (Minnesota – 11-year-old boy abducted at gunpoint and killed in 1989, remains found in 2016. Killer had previously abducted and sexually assaulted a 12-year-old boy) and Megan Kanka (New Jersey – 7 year old raped and murdered by a convicted pedophile) which resulted in Megan’s Law that mandates that every state provide some level of community notification when a dangerous sex offender moves to a new address.
- The advice 10 years ago that CCAL attorneys were providing to their associations was to consider passing a rule or amendment that prohibited Tier III sex offenders from living in the community and to also consider advising residents that if a sex offender moved into the neighborhood to make that fact known and publish the state’s website on sex offenders.
- Based on this case, advising to prohibit Tier III sex offenders may no longer be a viable option, but advising your association and its residents to be vigilant, to know if there are any offenders in the neighborhood, and providing the state sex registry website is still the best practice.
