NOTE: The Idaho law in this article was current as of the date of its publication in 2012.

Synopsis: This article discusses whether and how Idaho private homeowners associations can create restrictions on the residential locations of convicted sex offenders.

Background: “Sex offenders are a serious threat in this Nation.”[1] “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.”[2]  Through the passage of federal laws, Congress encouraged States to adopt comprehensive and uniform sex offender registration laws.[3]  In 2006, Congress enacted the Sex Offender Registration and Notification Act (“SORNA”).[4] SORNA requires sex offenders to register their whereabouts within three business days after their release from imprison­ment, and to keep their registrations current by updating their registrations within three business days of moving to a new residence, gaining new employment, or entering a new school.[5]

By 1996, every state and the District of Columbia had enacted a sex offender registration law.[6] Idaho has two such registration laws.[7] In Idaho, “an offender shall keep the registration current for the full registration period[, which] is for life,” barring a successful terminating petition.[8] Both federal and state enactments in this area confirm the publicpolicy that convicted sex offender registration requirements are both necessary and valid for the public safety especially around schools, in parks, and in neighborhoods.

On the other hand, even though there is a lifetime registration requirement, in most cases convicted sex offenders remain citizens and may, ten (10) years following either release from prison or the end of a probationary or parole period, file a petition with their local district court to be released from the registration requirement.[9] A right to relocate one’s residence is protected by the Fourteenth Amendment of the U.S. Constitution, because citizens have a right to travel in the United States[10]and have the freedom to choose their own domicile as a part of that right.[11] If the government or arguably even a private actor such as a HOA wants to place limits on that freedom, it must have a compelling justification.[12]This author found no case law on point, but private homeowners’ association rules impacting the freedom to choose one’s residence should be carefully weighed and a compelling interest parallel to a governmental actor’s should be considered, both to preserve citizens’ freedom and to avoid unnecessary legal expenditures.

Application to Homeowner Associations

In Idaho, it is a misdemeanor for a convicted sex offender to “[r]eside within five hundred (500) feet of the property on which a school is located” unless the person’s residence was established prior to July 1, 2006.[13]  This law applies even when a residence is located within a homeowner association governed geographic area.  A “school district [may adopt] more stringent safety and security requirements.”[14]  There is no similar subsection regarding a registered sex offender’s residence in relationship to a park or other location where children may be at play.  However, these statutory provisions evidence that distance requirements regarding convicted sex offender residence locations are proper and lawful.

Similar to the Idaho laws, and as a condition of probation, the federal criminal code allows a court to require a sex offender  to “reside in a specified place or area, or refrain from residing in a specified place or area.”[15] Also, that code allows as a probationary condition that the offender “refrain from frequenting specified kinds of places or from associating unnecessarily with specified persons.”[16]

Thus, there are both federal and Idaho sex offender residence and registration restrictions, regardless of whether the convicted offender resides in a homeowners’ association.

Private Association Restrictions

In Idaho, homeowners’ covenants shouldbe of record and a buyer, thus, takes a conveyance with constructive notice of them.[17] A declaration of covenants, conditions, and restrictions (“CC&Rs”) is construed as a contract in Idaho.[18] The objective in interpreting contracts is to ascertain and give effect to the intent of the parties.[19] The intent of the parties should, if possible, be ascertained from the language of the documents.[20] If a covenant is unambiguous, the court must apply its plain meaning as a matter of law.[21] Restrictions that are found to be clearly expressed in the restrictive covenants can be applied against the free use of land, but restrictions not clearly expressed therein will be resolved by Idaho courts in favor of the free use of land.[22]

Zoning has been compared to the law of equitable servitudes, which are individual use restrictions that can be organized into CC&Rs.[23] “Zoning [by public entities is] a legitimate exercise of police power.”[24] Private CC&Rs may restrict a property owner’s right to rezone land, if the express restriction is unambiguous.[25] Since zoning ordinances and CC&Rs are both restrictions on the free use of land, interpretations of ambiguous CC&Rs may be assisted by local zoning rules or definitions.[26]

One commentator noted “[m]any land use activities now constrained by zoning ordinances raise only localized threats that would be better handled through private nuisance remedies supplemented by covenants and good manners.”[27] In Idaho, the still optional rule is that private land use controls using covenants may supplement government zoning.[28]

Public zoning and subdivision ordinances set minimum land use standards.  A group of homeowners may contractually bind themselves to greater restrictions than may apply in the law.[29]

HOA Restrictions on Sex Offender Residence Locations

There is no known Idaho case law interpreting a private governing association’s CC&Rs, Bylaws, or Rules and Regulations on the validity of sex offender residence location restrictions.  A homeowners association may be a collection of single family detached residences or a condominium association.  Usually, condominiums are located within a single building, like apartments, and so the governing board should consider whether sex offender residence restrictions will be reasonable or practical in condominiums.  Conversely, in single family detached housing neighborhoods, restrictions may be practical and enforceable.  Further, due to the health and safety aspects of such restrictions, a seniors-only community or one with a large number of young families may find such restrictions very desirable as a component of CC&Rs designed to elevate and maintain property values.  A governing board should consider several components to such restrictions.

Practice Tip: Components of a HOA’s rule should include a policy justification, a list of applicable definitions that blend with definitions used in the other governing documents such as landlord-tenant provisions, distance requirements, and notice and approval processing requirements.  Generally, as in all such enactments, the new rules must work with the old rules.

Minimum distance requirements should be considered, because the law recognizes that when several convicted sex offenders live together or near places where children are found, such as schools, restrictions are proper.[30] Idaho cities and counties may restrict sex offender group residence location by mandating “permissible distances between such houses.”[31] These distance restrictions should be arranged such that a grid is created, “to minimize [sex] offender clustering within a community.”[32]

Practice Tip: Whether a HOA is responsible for facilities maintenance or not, identification of either member or publicly used facilities within HOA territory should be mapped, including school bus stop locations, parks, clubhouses, pools, exercise areas, etc., because high use areas usually mean higher HOA expenditures for maintenance of HOA-adjacent areas.

Such a planned grid is used in some Idaho cities for specifying the location of sex-oriented businesses, and there is no reason such zoned use criteria cannot be contractually used in privately governed associations.[33] Governing boards should include how a distance restriction is to be calculated, whether it be air miles (“as the crow flies”), or other measure, so that owners and prospective tenants may do their own calculations before applying to a board for occupancy.

Practice Tip: Distance restrictions should be calculated and applied equally, whether the convicted sex offender lives within or outside the development. The fact of a convicted sex offender living one block outside the subdivision will impact homes in the subdivision, if the planning grid radius is more than one block long.

Associations contemplating such restrictions should also consider homeowners and renters.  Usually, CC&Rs require landlords to give prospective tenants a copy of the governing documents, and tenants are required to adhere to them.  In every case, the potential landlord subject to such restrictions would be responsible for determining whether prospective tenants could be allowed at a particular residence location. The association restrictions need to either allow for a time delay during implementation for existing owners and leasehold tenants with vested rights to move, or allow temporary waivers where hardship may result.  Also, tenants need to know whether and where they may move into an association’s territory, so the governing board should track sex offender residential locations within its area of governance, and be prepared to share the most current knowledge it has related to convicted sex offender residential locations, or direct owners to the Idaho Sex Offender Registration (ISOR) website.[34]

Practice Tip: HOA legal counsel should recommend identification of all non-owner occupied housing and make sure the HOA has copies of leases that mandate tenants abide by HOA governing documents.  They should additionally recommend a newsletter or website to keep landlords apprised of HOA requirements regarding leased properties, including any required process and time frames related to restrictions on convicted sex offender residence locations.  Good planning and communication can help avoid or mitigate most complaints about HOA policies.

Potential Issues

The criteria cited above require an active association governing board, because “not only are offenders required to maintain an awareness of what housing stock is available outside the [restricted zone], they must also be cognizant of where other offenders have established a permanent residence in an effort to adhere to the hybrid restrictions that may be in place . . . [thus,] without advanced analytical and modeling approaches combined with detailed spatial information, the contingencies of these hybrid strategies are difficult to identify, especially for offenders, landlords, law enforcement agencies, and correction officials.”[35] This is a good example of where local private covenants may be preferred over zoning rules, because a homeowners association can accomplish this task with nothing but a good map.

An active governing board may have little trouble with these criteria. However, even with accurate records, a private association board may draw unnecessary lawsuits from tenants denied housing, or from the landlord or owner who may not live in their own home, even where civil liability is barred based on public registration records, see below. These claims will likely fail if the board made a good faith effort to create the rules and if the board has a solid process to determine whether restrictions should apply to a given tenant or owner. Maintaining accurate records is possible, because Idaho law mandates information be available to the public on the internet, such as the offender’s date of birth, the address of each residence at which the offender resides or will reside, or information about where the offender has his or her home or habitually lives; and the address of any place where the offender is a student or will be a student.[36]Therefore, it is simply the governing board covenant or rule and the board implementation process that may be at issue. Mirroring due process requirements of public entities should allay tenant and owner fears, while being legally defensible as reasonable regulations.

Practice Tip: Even though a HOA is not subject to Idaho’s open meetings law,[37]maintaining strong communication for notice of meetings, changes in rules, and community events helps bind the common interests of the community together. This is supportive of activities such as Neighborhood Watch, Scouting, local church events, July Fourth picnics, or community litter abatement events. Weaving the HOA into the community fabric assists in rules compliance.

Immunity from Civil Liability

Idaho Code provides that no “person,” including non-profit homeowner associations, has “a duty to collect information [regarding registered sexual offenders], . . . a duty to inquire, investigate or disclose any information . . . an affirmative duty to provide public access to information, . . . [and cannot] be held liable for any failure to disclose any information . . . to any other person or entity.”[38] Further, a homeowners governing board “acting without malice or criminal intent, [that] obtains or disseminates information under this chapter shall be immune from civil liability for any damages claimed as a result of such disclosures made or received.”[39] The requirement in Idaho is that a governing board of a non-profit association act “in good faith [and] with the care an ordinarily prudent person in a like position would exercise under similar circumstances; and [ ] in a manner the director reasonably believes to be in the best interests of the corporation.”[40] Thus, if board members act reasonably and in good faith, sex offender residence location restrictions can join the other CC&Rs to raise and maintain property values.

Practice Tip: HOA board members and their agents or contractors should avoid disclosing or discussing their personal opinions about convicted sex offenders, because they are irrelevant. The board should create a policy statement anchored by HOA goals as stated in the governing documents, such as upholding neighborhood property values, contributing to neighborhood safety, or other iteration of policy supported by contractual goals of the HOA.

Conclusion

Federal and Idaho law require convicted sex offenders register. Idaho law allows school districts, cities, and counties to restrict residence locations for such offenders. Therefore, it is reasonable for the governing boards of homeowner associations to have the power to initiate such restrictions in their private contractual CC&Rs, Bylaws, or Rules and Regulations. Such restrictions may be more narrowly tailored and restrictive than a public entity’s. With care and prudent management, a governing board can protect resident safety and property values by creating reasonable restrictions, and implementing them with proper notice and hearing requirements.

Practice Tip: A HOA board and members at a duly noticed meeting should be given instruction in the new rules to emphasize the purpose and process for implementation.  A board may want to consider having a one to two-year delay in enforcement, so that adjustments in a person’s residence location may be made by those with a present interest as lessor or lessee, so the new policy is minimally disruptive to existing contracts.

[1]McKune v. Lile, 536 U.S. 24, 32, 122 S.Ct. 2017, 2025 (2002).

[2]Id.; citing U.S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 27 (1997); U.S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997).

[3]In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act.  SeeSmith v. Doe, 538 U.S. 84, 89–90 (2003).

[4]Carr v. United States, 560 U. S. ___, 130 S.Ct. 2229, 2233 (2010).

[5]United States v. Clements, 09-10034 (9th Cir. Aug. 22, 2011); citing 42 U.S.C. §§ 16911, 16913.

[6]Smith v. Doe, 538U.S. 84, 90, 123 S.Ct. 1140, 1146 (2003).

[7]The Sexual Offender Registration Notification and Community Right-to-Know Act at Title 18, Chapter 83, Idaho Code, see I.C. § 18-8301, et seq., and the Juvenile Sex Offender Registration Notification and Community Right-to-Know Act at Title 18, Chapter 84, see I.C. § 18-8401, et seq.

[8]I.C. § 18-8307(7).

[9]I.C. § 18-8310.

[10]Saenz v. Roe, 526 U.S. 489 (1999) (“The word ‘travel’ is not found in the text of the Constitution. Yet the ‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence. United States v. Guest, 383 U.S. 745, 757 (1966). Indeed, [referencing Shapiro v. Thompson, 394 U.S. 618 (1969),] the right is so important that it is ‘assertable against private interference as well as governmental action . . . a virtually unconditional personal right, guaranteed by the Constitution to us all.” Id., at 643 (concurring opinion)).

[11]Id. at 503; citing Slaughterhouse Cases, 16 Wall 36, 80 (1873) (“a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bonafide residence therein, with the same rights as other citizens of that State.”).

[12]Id.; citing Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (“the effect of imposing a penalty on the exercise of the right to travel [may] violate[ ] the Equal Protection Clause ‘unless shown to be necessary to promote a compelling governmental interest.”)

[13]I.C. § 18-8329(1)(d).

[14]I.C. § 18-8329(3).

[15]18 U.S.C. §§ 3563(b)(13), 18 U.S.C. § 3583.

[16]18 U.S.C. § 3563(b)(13).

[17]West Wood Investments, Inc. v. Acord, 141 Idaho 75, 106 P.3d 401 (2005); see Matheson v. Harris,, 98 Idaho 758, 572 P.2d 861 (1977) (discussion of purpose of recording statutes).

[18]Pinehaven Planning Bd. v. Brooks, 138 Idaho 826, 829, 70 P.3d 664, 667 (2003); Best Hill Coalition v. Halko, LLC, 144 Idaho 813, 817, 172 P.3d 1088, 1092 (2007).

[19]Twin Lakes Village Property Assn., Inc. v. Crowley, 124 Idaho 132, 135 (1993).

[20]Id.

[21]City of Chubbuck v. City of Pocatello, 127 Idaho 198, 201 (1995); Best Hill Coalition, 144 Idaho at 817.

[22]Thomas v. Campbell, 107 Idaho 398 (1984).

[23]Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408, 442, 109 S.Ct. 2994, 3027 (1989) (Stevens, J. concurring); Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 345 (6th Cir. 1994).

[24]Giltner Dairy, LLC v. Jerome County, 181 P.3d 1238, 1241 (Idaho 2008); City Of Idaho Falls v. Grimmett, 63 Idaho 90, 96, 117 P.2d 461, 467 (Idaho 1941) (proper and legitimate exercise of the police power).

[25]Lane Ranch Partnership v. City of Sun Valley, 144 Idaho 584, 589, 166 P.3d 374, 379 (2007).

[26]Brown v. Perkins, 129 Idaho 189, 193, 923 P.2d 434, 438 (1996).

[27]Ellickson, Alternatives to Zoning; Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U.Chi.L.Rev. 681, 762 (1973).

[28]I.C. § 67-6511A; Hauser City Code §§ 8-1-4(C); 8-3C-6(C) (Any application for a subdivision that does not provide a master plan for development of the entire contiguous holdings of the developer/owner shall be rejected); Ada Co. Code § 8-6-3(C)(3) (covenants and restrictions optional for new subdivisions); but see Ada Co. Code § 8-3H-5 (maintenance requirements shall be incorporated into the protective covenants for a subdivision and the conditions of approval for development applications).

[29]Post Falls City Code § 17.04.090 (where city codes are more restrictive or impose higher standards or regulation, the requirements of these regulations shall govern irrespective of private contractual provision).

[30]I.C. § 18-8329; 18 U.S.C. §§ 3563(b)(13), 18 U.S.C. § 3583.

[31]I.C. § 18-8331(4)(b).

[32]Cityscape Magazine, U.S. Dept. of Housing and Urban Dev., Vol. 13, No. 3, 2011, p. 15.

[33]Post Falls City Code § 5.08.130 (sexually oriented business cannot operate within 1,000′ of [schools, parks, churches, etc.]); Ada Co. Code § 8-5-3-2(A) (1000’ separation from schools, churches, and other adult entertainment establishments);see World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004) (Spokane ordinance upheld re zoning of sexually oriented businesses).

[34]http://isp.idaho.gov/sor_id/.

[35]Cityscape, Vol. 13, p. 16.

[36]I.C. § 18-8323(2)(a-d).

[37]I.C. §§ 67-2341(4) and (5) (defining “public agency” and “governing body”); and 67-2342 (requires open meetings).

[38]I.C. §§ 18-8325(1) and (2).

[39]I.C. § 18-8325(3).

[40]I.C. § 30-3-80(1)(a-c).

Note: This post is not legal advice, and should not be relied upon as such. Different sets of facts will likely lead to different legal conclusions. If you need assistance with real property matters, call Macomber Law, PLLC for a forty-five minute, no charge consultation to see if we can help.

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