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Hamptons Real Estate: Where Can a Sex Offender Reside?

John A. Viteritti

Protesters in Riverhead in 2006 make their point. (File Photo)

In 2007, the Town of Southampton enacted Town Law S:215 which prohibits sex offenders from residing within one mile of any school located in any school district that does not offer and fund transportation services to school for all students living within one mile of their respective school. The law also prohibits sex offenders from residing within two thousand feet of any school located in any school district that offers and funds transportation services to school for all students living within one mile of their respective school. Additionally, sex offenders may not reside within two thousand feet of any child-care facility or municipal recreational facility.

Suffolk County Local Law S:428, passed in 2006, prohibits sex offenders from residing within ľ mile of the property line of any school, including, but not limited to any public or private nursery, elementary, middle or high school, or any licensed day-care center, or playground.

According to a March 30, 2012, Eastern District Court Decision, Moore v. County of Suffolk, the residency laws in Suffolk County and the Town of Southampton may violate law.

The plaintiff claimed, in a civil rights action, that the local residency laws effectively made the entire county off limits to registered sex offenders. According to an article that appeared in the New York Law Journal, the attorney for the plaintiff said he expects that the court's decision "will lead to the elimination of residency restrictions in Suffolk County and in the Town of Southampton." He further claimed that the residency restrictions are "probably unconstitutional." The issue has not been finally resolved although the judge in the case did signal that he will rule for the plaintiff, Duane Moore, should he ask the court for a ruling on the facts.

The NYLJ article also states that critics of residency restrictions like those in this case take the position that "sex offenders who are unable to find an affordable place to live often become transient or homeless, making it difficult to monitor and undermine the aim of the Sex Offender Registration Act which was enacted in 1996 so police and citizens would know the whereabouts of convicted offenders."

Dr. Edelgard, a professor of psychology at the University of Albany says, "If you restrict the possibilities of where these people can live...you create an accumulation of sex offenders in a particular area. That is not desirable."

The judicial system has always been sensitive to creating circumstances or permitting things to happen that may seem perfectly reasonable when looked at from one perspective but may have unintended consequences which may adversely affect the community. The common law right to acquire ownership of land through adverse possession is a case in point. Fallow land deprives society of the benefits provided by developed land. Courts give tenants subject to eviction for non-payment of rent every opportunity to remain in occupancy until they find alternate housing. We also are seeing this with respect to mortgage foreclosures. To do otherwise could create a homeless problem imposing a burden on society. In loft buildings in New York City, residents were allowed to occupy as "squatters" for pretty much the same reason. Bankruptcy laws are founded on the same principle. If you do not allow people to discharge debt they could become burdens to society. How many debtors' prisons would we have to build? This is also an inference in Moore v. County of Suffolk.

Balanced against this is society's right to pass laws to protect itself. According to the Division of Criminal Justice Services, there are approximately 1,000 sex offenders living in Suffolk County, more than twice as many as living in Nassau County. It is more than a philosophical and a legal question. It is also a practical one which does not appear to have an easy solution.

John is a St. John's University graduate, licensed Real Estate broker, lecturer, teaches real estate license classes at LIU, NYU, and Cook Maran Real Estate School, and is a well-respected consultant to the real estate industry. www.johnaviteritti.com

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