NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3235-06T13235-06T1

G.H.,

Plaintiff-Respondent,

v.

TOWNSHIP OF GALLOWAY,

Defendant-Appellant.

_________________________________

TOWNSHIP OF CHERRY HILL, DOCKET NO. A-4036-06T1

Plaintiff-Appellant,

v.

JAMES BARCLAY and JEFFREY FINGUERRA,

Defendants-Respondents.

________________________________________________________________

Argued March 5, 2008 - Decided

Before Judges Cuff, Lisa and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-6395-06 (A-3235-06T1).

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal Nos. 66-2006 and 67-2006 (A-4036-06T1).

Demetrios K. Stratis argued the cause for appellant in A-3235-06T1 (Law Offices of Demetrios K. Stratis, LLC and Stuart J. Roth (American Center for Law and Justice) of the Washington, D.C. bar, admitted pro hac vice, attorneys; Mr. Stratis and Mr. Roth, of counsel and on the brief).

Frank L. Corrado argued the cause for respondent in A-3235-06T1 (Barry, Corrado, Grassi & Gibson, P.C. and American Civil Liberties Union of New Jersey Foundation, attorneys; Mr. Corrado and Edward Barocas, on the brief).

Lynette Siragusa argued the cause for amicus curiae Legal Services of New Jersey in A-3235-06T1 (Legal Services of New Jersey, attorneys; Ms. Siragusa, Ingrid D. Johnson and Melville D. Miller, Jr., of counsel and on the brief).

Ronald K. Chen, Public Advocate, attorney for amicus curiae Department of the Public Advocate in A-3235-06T1 (Joan D. Van Pelt, Deputy Public Advocate, on the brief).

Loughlin & Latimer, attorneys for amicus curiae The New Jersey Chapter of the Association for the Treatment of Sexual Abusers in A-3235-06T1 (Stephen M. Latimer, on the brief).

Law Offices of Richard D. Pompelio, attorneys for amicus curiae New Jersey Crime Victims' Law Center in A-3235-06T1 (Richard D. Pompelio, of counsel and on the brief; Laura Nazzaro and Nicholas Pompelio, on the brief).

Yvonne Smith Segars, Public Defender, attorney for amicus curiae New Jersey Office of the Public Defender in A-3235-06T1 (Michael Z. Buncher, Deputy Public Defender, of counsel and on the brief).

Walter F. Kawalec, III, argued the cause for appellant in A-4036-06T1 (Marshall, Dennehey, Warner, Coleman & Goggin and Lisa M. Kmiec, attorneys; Mr. Kawalec, on the brief).

Scott T. Schweiger argued the cause for respondents in A-4036-06T1.

The opinion of the court was delivered by

LISA, J.A.D.

In these appeals, we consider challenges to municipal ordinances prohibiting convicted sex offenders from living within a designated distance of schools, parks, playgrounds and daycare centers. The trial courts in both cases invalidated the ordinances, finding them preempted by state law and violative of the due process, ex post facto and double jeopardy clauses of the New Jersey Constitution. We affirm. We hold that the ordinances are preempted by state law and therefore invalid. Because we decide the appeals on preemption grounds, we do not address the constitutional issues.

I

The Galloway ordinance prohibits a person over the age of eighteen who has been convicted of a sexual offense against a minor as listed in N.J.S.A. 2C:7-2, and who is required to register with the authorities pursuant to Megan's Law, see N.J.S.A. 2C:7-1 to -19, from living within 2500 feet of any school, park, playground or daycare center in the Township. Upon notice from the Township, such a person must move within sixty days, or be subject to a fine of $1250 to $5000, imprisonment up to six months, and community service up to ninety days. The ordinance contains a grandfather clause, exempting anyone who established a residence prior to the introduction date of the ordinance.

G.H., a twenty-year-old college freshman at Richard Stockton College, in Galloway Township, moved into a dormitory on campus after the effective date of the grandfather clause. G.H. had been adjudicated delinquent for an offense committed when he was fifteen years old, which, if committed by an adult, would constitute fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b. The victim was a thirteen-year-old girl. G.H. was ordered to serve two years probation, which he had successfully completed. He had no other criminal history. G.H. was designated as a Tier 1 (low risk of reoffense) sex offender pursuant to Megan's Law. The Township sent him a notice advising that he was required to move within sixty days and could not live within 2500 feet of the campus (or, presumably in any other "buffer zone" in the Township).

G.H. brought a complaint in lieu of prerogative writs challenging the Galloway ordinance. No material facts were in dispute. After hearing oral argument on G.H.'s motion for summary judgment, Judge Valerie H. Armstrong issued a thorough written opinion declaring the ordinance invalid on the bases we have mentioned. Galloway Township filed this appeal.

The Cherry Hill ordinance is similar to that of Galloway Township. The only significant difference is in its penalty provisions. It designates each day of continuing violation a separate and distinct offense, and provides for a fine not to exceed $1250 per offense, together with imprisonment up to ninety days or community service up to ninety days.

James Barclay and Jeffrey Finguerra were convicted sex offenders (CSO), over age eighteen, who moved into the Hillside Motel in Cherry Hill Township, which is located within 2500 of Camden Catholic High School. They moved after the effective date of the ordinance's grandfather clause. Each of the men was a recipient of Section 8 housing allowance from the State, and each moved into the motel after approval of the residence by his parole or probation officer. Each notified the Cherry Hill Township Police Department of the location of his residence. The men were notified by the Township they were in violation of the ordinance and were required to move within sixty days. They did not move because they were awaiting Section 8 housing and approval of a new residence by their parole or probation officers. After the passage of sixty days, the Township issued citations against them for violating the ordinance.

The matter came before the Township municipal court, which denied defendants' motions to dismiss on the grounds that the ordinance was invalid. The cases were then tried on stipulated facts. Defendants were found guilty, and sentenced to a fine of $50 plus $33 costs for each day beyond the sixty-day period after which they were notified. The municipal court suspended imposition of sentence on all but one of the charges for each defendant.

Defendants appealed to the Law Division. After hearing oral argument, the Law Division judge issued a written decision, in which he agreed with and substantially adopted Judge Armstrong's decision and invalidated the Cherry Hill ordinance on the bases we have mentioned. Cherry Hill filed this appeal.

II

Although the two cases come to us by different procedural routes, they present the same issue. Indeed, the record informs us that more than 100 municipalities in New Jersey have recently adopted similar ordinances. The facilities designated in the Galloway and Cherry Hill ordinances are typical, but others are more expansive, including such additional facilities as school bus stops, libraries, convenience stores, sporting facilities, and the like. Most of the ordinances establish 2500 foot restrictions, but others designate different prohibited distances. And, some contain different penalties and other variations.

Galloway Township and Cherry Hill Township (the municipalities) argue that the trial courts erred in finding their ordinances preempted by state law because the State has neither expressly nor impliedly occupied the field covered by the ordinances. Their argument rests upon the assertion that the applicable state law, Megan's Law, deals with registration and notification regarding CSOs, but does not include provisions restricting locations in which they live. Therefore, the municipalities argue that the ordinances serve a different purpose than Megan's Law and complement that law by providing additional measures for the safety of their inhabitants.

We do not agree with the municipalities' narrow characterization of the purpose of Megan's Law. The far- reaching scope of Megan's Law and its multilayered enforcement and monitoring mechanisms constitute a comprehensive system chosen by the Legislature to protect society from the risk of reoffense by CSOs and to provide for their rehabilitation and reintegration into the community. The system is all-encompassing regarding the activities of CSOs living in the community. We conclude that the ordinances conflict with the expressed and implied intent of the Legislature to exclusively regulate this field, as a result of which the ordinances are preempted.

III

Municipalities are authorized by the Legislature to enact and enforce ordinances for specified enumerated purposes, N.J.S.A. 40:48-1, and, as long as not contrary to New Jersey or federal law, for any other purpose for the preservation of the health, safety and welfare of the municipality and its inhabitants. N.J.S.A. 40:48-2. And, laws concerning municipalities should be liberally construed in favor of local authority. N.J. Const. art. IV,