The Advocate - May 2012 - Idaho State Bar - Idaho.gov

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 an HOA’s rule
should include a policy justification,
a list of applicable defi-
nitions 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 an 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 HOAadjacent
areas.
Such a planned grid is used in some
Idaho cities for specifying the location of
30 The Advocate • May 2012
Local private covenants may
be preferred over zoning rules,
because a homeowners association
can accomplish this task with
nothing but a good map.
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 of-
fender 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 hous-
ing 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