Pennsylvania Commonwealth Court Strikes Association Restriction Barring Sex Offenders From Living In Community
On October 28, 2022, the Commonwealth Court of Pennsylvania held that a private community may not adopt a restrictive covenant that prohibits lifetime sex offenders from residing within its boundaries. In a ruling with potential implications beyond underlying facts, the Court in Lake Naomi v. Rosado struck the restriction as void against public policy. In reaching its conclusion, the opinion analyzes the concept of “preemption” as it applies to private community associations and construes the statute of limitations for challenging amendments to a declaration.
Responding to resident concern, the association proposed an amendment to its declaration prohibiting all Tier III sex offenders from occupying or residing in “any lot, dwelling or common area” within Lake Naomi. The amendment was approved by 94% of those who returned ballots, comprising 71% of all unit owners; it was recorded on May 11, 2016.
Mr. Rosado was twice convicted of sexual crimes committed against his granddaughter in Pennsylvania in 2015, and again in New York in 2016. As a result of these convictions, he was required to register as a Tier III sex offender for life pursuant to the Sexual Offender Registration and Notification Act (SORNA)*. The Pennsylvania Parole Board approved Mr. Rosado’s release to his home in Lake Naomi in 2018 (a home which at the time he had owned for more than two decades). Several weeks after moving back to Lake Naomi, Mr. Rosado was notified by the association that he was in violation of the amendment (Covenant 14), and was asked to vacate the property. Following his refusal to move out, the Association filed an action seeking to permanently enjoin Mr. Rosado from residing within the Lake Naomi community.
Analysis and Decision:
Defending against the Association’s suit, Mr. Rosado argued that Covenant 14 is void as against public policy and thus unenforceable. The trial (and later the Commonwealth) court agreed with him, relying heavily on the doctrine of preemption** and a Pennsylvania Supreme Court case known as Fross v. County of Allegheny. In Fross, the Supreme Court struck a county ordinance which sought to impose limitations where sex offenders can reside. Particularly, the ordinance prohibited sex offenders from residing within 2,500 feet of childcare facilities, community centers, public parks, recreational facilities, or schools. The practical effect of the ordinance was to prevent sex offenders from residing in most residential areas of Allegheny County. In deciding whether the county ordinance was preempted by SORNA (at that time, Megan’s Law) and the parole system, the Fross court wrote as follows:
… a local ordinance is invalid if it stands as an obstacle to the execution of the full purposes and objectives of the General Assembly, as expressed in a state law…To determine whether the county has created such an obstacle, we assess the effect of the challenged ordinance on the proper functioning and application of the state enactment. … “stands as an obstacle” means state law interference with “methods” by which federal statute was designed to reach its goal… If the local ordinance impedes the operation of the state statute, the ordinance is preempted. County legislation tailored to the particular locality is permitted, if the enactment merely aids and furthers the goals of the state statute. … But, local legislation cannot permit what a state statute or regulation forbids or prohibit what state enactments allow…
After citing numerous reasons why and how the county ordinance obstructed the intent, purposes, and implementation of Megan’s law, the Fross Court ultimately held that:
The County’s legislative effort in this instance undermines the General Assembly’s policies of rehabilitation, reintegration, and diversion from prison of appropriate offenders, and significantly interferes with the operation of the Sentencing and Parole Codes. For these reasons, we agree with the federal district court that the County’s Ordinance stands as an obstacle to accomplishing the full purposes [and] objectives of the General Assembly and is, therefore, preempted.
Similarly, (despite not involving a municipal ordinance or legislative preemption***) the Lake Naomi Court concluded that Pennsylvania’s public policy to reduce recidivism among sex offenders and to improve public safety through the parole scheme was expressed by the General Assembly within SORNA and the Sentencing and Parole Codes (and later Fross). “If local counties and municipalities must adhere to these statewide mandates, so must private residential communities.” Striking Covenant 14 as against public policy (rather than by “preemption” – which applies to legislative bodies), the Lake Naomi Court concluded that a private community may not impose more restrictive standards on where released sex offenders may live than county and municipal governments.
In so holding, the Lake Naomi Court also rejected the association’s argument that Mr. Rosado’s challenge of the Covenant 14 amendment was time-barred. Section 5219(b) of the Uniform Planned Community Act provides that “[n]o action to challenge the validity of an amendment adopted by the association … may be brought more than one year after the amendment is recorded.” The trial court reasoned that Section 5219(b) could not be applied to amendments which are illegal pursuant to statute or violate public policy. Had the Covenant 14 amendment not violated public policy, the trial court would apparently have applied Section 5219(b) to deem the challenge untimely. The Lake Naomi Court declined to adopt the same analysis. Instead, it held that Mr. Rosado’s defense to the association’s claim did not constitute an “action to challenge the validity of an amendment”: “Because the [a]ssociation initiated this enforcement action against Mr. Rosado, we conclude that the one-year statute of limitations is inapplicable here”.
Although the doctrine of “preemption” applies to the actions of legislative bodies, compliance with higher ranking authority is a concept with which associations are familiar. Associations operate daily within the bounds of local zoning laws, the Uniform Planned Community Act, and the Fair Housing Act (to name a few). Associations also know that these laws and regulations potentially limit the extent to which they may govern a particular subject matter. For example, while association architectural rules are permitted to be more restrictive than township ordinances, they cannot be inconsistent with them (i.e. an association cannot permit a 10 foot high fence when a township ordinance permits only a 5 foot high fence).
SORNA and Pennsylvania’s Sentencing and Parole Codes establish a complex regulatory system for eventual re-integration of convicted sex offenders. It is not disputed that these statues are a codification of law enforcement and criminal justice public policy on an important subject matter. Compelled to follow Fross, the Lake Naomi Court concluded that these policies are of such vital importance and authority that they take full precedence over (municipal and) private community regulation. Accordingly, while the court recognized the association’s goal and intent of protecting children residing within the community, it held that that parole scheme established by the General Assembly had full and final authority.
Perhaps law enforcement and parole matters are unique. However, the extent to which association action can now be challenged on “public policy” grounds is unclear. Courts have generally imposed a high burden on challenges to contractual provisions brought on public policy grounds, requiring a showing of overriding public policy from legal precedents, governmental practice, or obvious ethical or moral standard. Nonetheless, the term “public policy” is vague. One might argue that legislation on any subject matter is a codification of public policy. Distinction will thus have to be made between the type of dominant public policy that justifies preemption (or unenforceability), and that which does not. Again, while the concept of compliance with existing laws is not new, this case opens the door to challenges based on policy arguments.
Of great concern is the court’s interpretation of Section 5219(b) (the one-year statute of limitations to challenge amendments). It is no surprise that the one-year statute of limitations does not insulate otherwise improper amendments from challenge. If an amendment is void or illegal at the time of its recording, then the passage of time offers no cure. The trial court adopted this reasoning and held that because Covenant 14 was against public policy when it was recorded, the limitations period did not apply. Unfortunately, the Commonwealth Court took a different and troublesome approach. It held that because Mr. Rosado merely challenged the ordinance as a defense to the association’s complaint, that he had not “filed an action”. What this appears to mean is that amendments are forever subject to challenge, provided that the challenge is posed in defense of a claim. Stated otherwise, had Mr. Rosado (as a plaintiff) filed a declaratory judgment action (against the association as a defendant) seeking to strike Covenant 14, the Lake Namoi court would presumably have barred his claim as untimely. The effect is that 5219 (b) can be used as a shield but not as a sword – a result which begs for a legislative fix.
* SORNA is Pennsylvania’s version of (and previously referred to as) Megan’s Law.
** Traditionally, preemption occurs when a higher legislative authority fully controls and speaks on a certain subject matter. For example, FCC OTARD rules governing satellite dishes “preempt” state and local laws or ordinances – neither state nor municipal legislation (that is inconsistent with OTARD rules) is enforceable. Legislative intent to preempt a certain field must be express and must clearly reserve for the adopting assembly the exercise of all regulatory and legislative powers.
*** The Lake Naomi Court cited to Section 5108 of the Uniform Planned Community Act to confirm that private communities are required to comply with other applicable laws and legal precedent; and that associations cannot stand as an obstacle to accomplishing the full purposes and objectives of the state legislature.
This article is not legal advice and is provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction.