Last week, the Massachusetts Supreme Court ruled that its cities cannot pass zoning ordinances restricting where sex offenders may live. The ruling resulted from a challenge to a Lynn, MA ordinance which had created a zoning district in which certain level sex offenders were prohibited from residing. The ordinance was challenged on several constitutional grounds: violation of the State's Home Rule Act, violation of the clauses prohibiting ex post facto (retroactive) laws; violation of the right to substantive due process; violation of the right to familial association; violation of the right to be protected from cruel and unusual punishment under the U.S. and state Constitutions; and violation of the right to travel. The Court declined to address broader Constitutional questions, because it found that a Home Rule Act violation occurred. (Under Massachusetts' Home Rule laws, noted the Court, a local ordinance is invalid if it is inconsistent with the Constitution and/or laws of Massachusetts.)
The Court looked at the impact of the Lynn ordinance, noting that at least 212 registered level two and level three sex offenders were residing in the city. It pointed out that a sex offender required by the ordinance to move from his or her residence could encounter similar restrictions elsewhere, because at least 40 other Massachusetts municipalities had also adopted sex offender residency restrictions. Violators of the Lynn ordinance were subject to a $300/day penalty.
The Court ultimately ruled that while the state of Massachusetts could create laws governing where sex offenders may live within a municipality, cities themselves lack the power to do so. Looking at the "totality of the circumstances," the Court found "an express legislative intent to forbid local activity in the area of the civil regulation and management of the post-incarceration lives of convicted sex offenders." Because the Massachusetts legislature never intended its cities and towns to address where sex offenders could or could not lawfully reside, concluded the Court, Lynn exceeded its powers by doing so.
A copy of the Court's order can be found here.
How might this case have been decided in New Hampshire? Like many questions you ask an attorney, the answer is, "It depends...." The concept of "Home Rule" pertains to a city or town's ability to govern itself. But even this ability, as the Massachusetts case shows, has its limits. Despite being the Live Free or Die state, New Hampshire is not a Home Rule state. Here, municipalities only have those powers granted to them by the state. This means that towns and cities can only do those things that the legislature expressly tells them they can do, those things that are implied by a grant of power, and those things which are essential and indispensable to a city or town's existence and functioning. While a Home Rule challenge is impossible in a non- Home Rule state, a New Hamphire local ordinance limiting sex offenders to only certain sections of town could be challenged on some of the other Constitutional grounds raised in the Massachusetts cases (and possibly on additional grounds as well, depending on the specific circumstances). While there are New Hampshire cases upholding zoning restrictions on the location of certain types of undesirable businesses, somewhat different interests come into play when a town restricts where a person can live. Also, these types of cases are extremely fact-specific.
TAKE-AWAY POINT: Via this opinion, the Court is reminding Towns thay they need to be aware of the limits of their powers and act accordingly. When they do not acknowledge and respect those limits, their decisions are susceptible to challenge. (Whether the person bringing forth a challenge to an exclusionary zoning ordinance is within the class of people entitled to bring forth such a challenge, however, will be the topic of a later post.)
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