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A New Jersey state Superior Court judge has overturned a Cape May County town’s ordinance barring convicted sex offenders from living near schools or playgrounds, finding it pre-empted by Megan’s Law. The Dec. 22 ruling, by Atlantic-Cape May Assignment Judge Valerie Armstrong, is the first in New Jersey to address viability of local laws restricting residency of convicted sex offenders. The Lower Township ordinance struck down is similar to ones recently enacted in more than 40 New Jersey towns. Armstrong rejected arguments that the ordinance only filled in Megan’s Law’s gaps. “The township’s minimization of the intent, purpose and impact of Megan’s Law as ‘merely’ addressing registration of sex offenders and community notification fails to recognize that the statute is broad, comprehensive and far reaching,” Armstrong wrote in Elwell v. Township of Lower. Megan’s Law requires convicted sex offenders not only to register with local authorities but to verify their addresses annually, report any change of address and comply with Department of Corrections regulations requiring a parole officer’s approval before moving to a new residence, taking a new job or leaving the state for any reason, Armstrong noted. Those regulations also give parole officers oversight authority over registrants’ ability to own firearms, consume alcoholic beverages, perform volunteer work or have any sort of contact with minors. Armstrong found the local ordinance – which forbids convicted sex offenders from residing or loitering within 500 feet of a school, park, playground, recreation area or day care facility, or within 25 feet of a school bus stop – a parallel regulatory scheme and thus pre-empted. Armstrong also found the ordinance deprives sex offenders of their due process rights, violates the Constitution’s ex post facto and double jeopardy clauses and is unconstitutionally vague. The suit challenging the law was brought by Frank Corrado, a cooperating attorney for the American Civil Liberties Union-New Jersey. Corrado’s client, Steven Elwell, a former high school teacher, served a year in jail for admittedly having sex with a 16-year-old student. Under Megan’s Law, he is a Tier 1 registrant, the category for offenders considered to pose the lowest risk to the community. Elwell, now married with two children, outgrew his old residence and was searching for housing in Lower Township at the time the ordinance was passed, but the ordinance rendered large portions of the township off-limits to him. Armstrong agreed with Corrado that the buffer zones prevented Elwell from engaging in legitimate activity with his own children, such as accompanying them to school, a bus stop or a public park. “We’re pleased with the decision, in that it confirms that banishment ordinances, while well-intentioned, are an impractical way to address what is a very real concern,” said Corrado, of Barry Corrado Grassi & Gibson. “The issue is not whether our children should be protected from sex offenders, but how to accomplish this in an effective and meaningful way. Banishment ordinances are neither effective nor constitutionally permissible.” Lower Township’s lawyer, Anthony Monzo of Monzo & Catanese, did not return a call for comment. At least two other suits pending elsewhere in New Jersey seek to overturn ordinances similar to Lower Township’s. One suit, in Gloucester County, concerns a Franklin Township ordinance that sets a 3,000-foot buffer zone around protected facilities for Tier 3 offenders – those with the highest perceived danger of recidivism – and zones of 2,500 feet and 1,000 feet for Tiers 2 and 1, respectively. Moreover, the protected facilities are more broadly defined to include convenience stores, public libraries, churches, temples, theaters, skating rinks and bowling alleys. Assistant Deputy Public Defender Dolores Stroup represents a 77-year-old Tier 2 offender who last May was notified by Franklin Township police that he was in violation of the ordinance and had to move. The plaintiff cares for his disabled wife of 44 years and the couple gets by on $1,200 a month in Social Security. The suit, A.B. v. Franklin Township, raises pre-emption, due process, double jeopardy and vagueness counts. The other suit, in Monmouth County, concerns a borough of Highlands ordinance that forbids Megan’s Law registrants from living within 1,000 feet of a school, park, daycare center or playground but exempts those who are “record title owners and occupants” of their properties. Highlands is less than a square mile in area. Legal Services of New Jersey represents a Tier 1 registrant who lives in a mobile home that he owns but who pays rent to live in a mobile home park. He is a member of the park’s homeowner association, which is engaged in an effort to buy the park property from its current owner, giving him an equitable interest in the land that he would lose upon moving, according to the suit, A.Z. v. Borough of Highlands. This article originally appeared in the New Jersey Law Journal, a publication of ALM.

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