Because state law already regulates the residency of convicted sex offenders, Batavia cannot legally enact its own residency restriction, City Attorney George Van Nest informed the City Council this week.
In a memo included in the agenda package for Monday's City Council meeting, Van Nest said that because state law gives the Division of Parole and Division of Probation the responsibility of establishing residency restrictions, local governments are preempted from establishing their own rules.
The state Constitution specifically prohibits local governments from passing laws that are already covered in New York statutes.
Van Nest cited several cases that have invalidated local laws for sex offender residency, and noted that none of the cases have been heard by an appeals court.
"Based on the foregoing," Van Nest writes in the conclusion, "although passage of a local law may be viewed in isolation to have merit, a comprehensive scheme of New York State statutes already exist in this area and such State legislation will be viewed as a basis to find preemption. In addition, there are significant constitutional challenges that might be brought against a local law adopting residency restrictions.
"Therefore, in the event the law is passed, enforcement action is taken by the City and a third party challenges the law, it is likely that the City will be forced to expend resources defending a local law that will ultimately be deemed in effective by a reviewing court."
