05-20-2014 Agenda with backupREGULAR SESSION CITY COUNCIL
May 20, 2014, 6:00 P.M.
HAL BALDWIN MUNICIPAL COMPLEX COUNCIL CHAMBERS
1400 SCHERTZ PARKWAY BUILDING #4
SCHERTZ, TEXAS 78154
Policy Values
Economic Prosperity
Fiscally Sustainable
Family Friendly for All Ages
High Quality of Life
Safe Community
Essential Services
Attractive Community
Innovative and Proactive
Service Oriented
Friendly City
► 5:30 p.m. t
Come and meet Cardiac Arrest Survivors
(City Council Conference Room)
Call to Order — City Council Regular Session
Invocation and Pledges of Allegiance to the Flags of the United States and State of
Texas. (Pastor Luke Evans, Christ Church, San Antonio)
City Events and Announcements
• Announcements of upcoming City Events (J. Bierschwale /B. James)
• Announcements and recognitions by City Manager (J. Kessel)
Presentations
• Proclamation recognizing National Emergency Medical Services Week (Mayor Pro -
Tem Scagliola /D. Wait)
• Cardiac Arrest Survivor Recognition (D. Wait)
Hearing of Residents
This time is set aside for any person who wishes to address the City Council. Each person
should fill out the speaker's register prior to the meeting. Presentations should be limited to
no more than 3 minutes.
05 -20 -2014 Council Agenda
All remarks shall be addressed to the Council as a body, and not to any individual member
thereof. Any person making personal, impertinent, or slanderous remarks while
addressing the Council may be requested to leave the meeting.
Discussion by the Council of any item not on the agenda shall be limited to statements of
specific factual information given in response to any inquiry, a recitation of existing policy in
response to an inquiry, and /or a proposal to place the item on a future agenda. The presiding
officer, during the Hearing of Residents portion of the agenda, will call on those persons who
have signed up to speak in the order they have registered.
Workshop
• Presentation discussion and possible action regarding invocations at Council
meetings. (Item requested by Councilmember Fowler) (J. Kessel/D. Schmoekel)
Discussion and Action Items
1. Minutes — Approve the minutes of the regular meeting of May 13, 2014 (J. Kessel /B.
Dennis)
2. Ordinance No. 14 -M -23 — Consideration and/or action approving an Ordinance
amending the City's Code of Ordinances by adding Chapter 75 making it unlawful
for certain sex offenders to reside within 1000 feet of a child safety zone; malting it
illegal for sex offenders to go in, on, or within 1000 feet of a child safety zone;
providing exceptions to the ordinance; and providing penalties for violations of the
ordinance. First Reading (J. Bierschwale /M. Hansen)
3. Ordinance No. 14 -M -24 — Consideration and/or action approving an Ordinance
amending the City's Code of Ordinances Chapter 50, Article IV regulating the
discharge of guns; providing for certain exceptions; repealing all Ordinances or parts
of Ordinances in conflict with this Ordinance; and providing an effective date. First
Reading (J. Bierschwale /M. Hansen)
4. Ordinance No. 14 -S -25 — Conduct a public hearing and consideration and/or action
PH approving an Ordinance on a request to rezone approximately 0.468 acres of land
from General Business (GB) to Residential /Agriculture (RA). The property is more
specifically described as a portion of the Stacy B. Lewis Survey No. 317, Abstract
No. 443, and the Antonio Zamora Survey No. 36, Abstract No. 82, City of Schertz,
Bexar County, Texas, generally located on Boenig Drive approximately 170 feet west
of the street Laura Heights. First Reading (B. James /L. Wood)
5. Ordinance No. 14 -S -26 — Conduct a public hearing and consideration and/or action
PH approving an Ordinance on a request to rezone approximately 3 acres of land in the
Verde Enterprise Business Park Planned Unit Development (PUD) Ordinance 07 -S-
14A to Planned Development District (PDD). The property is specifically Unit 1 of
the Verde Enterprise Business Park and generally located on the corner of Interstate
Highway 35 and Mid Cities in the City of Schertz, Guadalupe County, Texas. First
Reading (B. James /L. Wood)
05 -20 -2014 City Council Agenda Page - 2 -
Roll Call Vote Confirmation
Requests and Announcements
6. Announcements by City Manager
• Citizen Kudos
• Recognition of City employee actions
• New Departmental initiatives
7. Requests by Mayor and Councilmembers that items be placed on a future City
Council agenda.
8 Announcements by Mayor and Councilmembers
• City and community events attended and to be attended
• City Council Committee and Liaison Assignments (see assignments below)
• Continuing education events attended and to be attended
• Recognition of actions by City employees
• Recognition of actions by community volunteers
• Upcoming City Council agenda items
9. Information available in City Council packets — NO DISCUSSION TO OCCUR
• Country Club Overpass — TxDOT Response
Adiournment
CERTIFICATION
I, BRENDA DENNIS, CITY SECRETARY OF THE CITY OF SCHERTZ, TEXAS, DO
HEREBY CERTIFY THAT THE ABOVE AGENDA WAS PREPARED AND POSTED
ON THE OFFICIAL BULLETIN BOARDS ON THIS THE 16th DAY OF MAY 2014 AT
11:15 A.M., WHICH IS A PLACE READILY ACCESSIBLE TO THE PUBLIC AT ALL
TIMES AND THAT SAID NOTICE WAS POSTED IN ACCORDANCE WITH CHAPTER
551, TEXAS GOVERNMENT CODE.
grevOn Devwl,'Ls
Brenda Dennis CPM, TRMC, MMC, City Secreta
I CERTIFY THAT THE ATTACHED NOTICE AND AGENDA OF ITEMS TO BE
CONSIDERED BY THE CITY COUNCIL WAS REMOVED BY ME FROM THE
OFFICIAL BULLETIN BOARD ON DAY OF 2014.
Title:
This facility is accessible in accordance with the Americans with Disabilities Act. Handicapped
parking spaces are available. If you require special assistance or have a request for sign
interpretative services or other services please call 210 - 619 -1030.
05 -20 -2014 City Council Agenda Page - 3 -
The City Council for the City of Schertz reserves the right to adjourn into executive session at
any time during the course of this meeting to discuss any of the matters listed above, as
authorized by the Texas Open Meetings Act.
Executive Sessions Authorized: This agenda has been reviewed and approved by the City's
legal counsel and the presence of any subject in any Executive Session portion of the agenda
constitutes a written interpretation of Texas Government Code Chapter 551 by legal counsel
for the governmental body and constitutes an opinion by the attorney that the items discussed
therein may be legally discussed in the closed portion of the meeting considering available
opinions of a court of record and opinions of the Texas Attorney General known to the
attorney. This provision has been added to this agenda with the intent to meet all elements
necessary to satisfy Texas Government Code Chapter 551.144(c) and the meeting is conducted
by all participants in reliance on this opinion.
COUNCIL COMMITTEE AND LIAISON ASSIGNMENTS
Mayor Carpenter
Mayor Pro -Tem Sca0iola — Place 2
Audit Committee
Animal Control Advisory Committee
Hal Baldwin Scholarship Committee
Cibolo Valley Local Government Corporation
Interview Committee for Boards and Commissions
Schertz Seguin Local Government Corporation
Investment Advisory Committee
Interview Committee for Boards and Commissions
TIRZ II Board
Sweetheart Advisory Committee
Councilmember Fowler — Place 1
Councilmember John - Place 3
Interview Committee for Boards and Commissions
Schertz Housing Board Liaison
Randolph Joint Land Use Study (JLUS) Executive
Committee
Councilmember Edwards — Place 4
Councilmember — Duke — Place 5
Audit Committee
Audit Committee
ASA Commuter Rail District Board — Lone Star
Investment Advisory Committee
Hal Baldwin Scholarship Committee
05 -20 -2014 City Council Agenda Page - 4 -
Agenda No. 1
CITY COUNCIL MEMORANDUM
City Council Meeting: May 20, 2014
Department:
Subject:
BACKGROUND
City Secretary
Minutes
The City Council held a regular meeting on May 13, 2014.
FISCAL IMPACT
None
RECOMMENDATION
Staff recommends Council approve the minutes of the regular meeting on May 13, 2014.
ATTACHMENT
Minutes — regular meeting May 13, 2014
MINUTES
REGULAR MEETING
May 13, 2014
A Regular Meeting was held by the Schertz City Council of the City of Schertz, Texas, on May 13,
2014, at 6:00 p.m., in the Hal Baldwin Municipal Complex Council Chambers, 1400 Schertz
Parkway, Building #4, Schertz, Texas. The following members present to -wit:
Mayor Pro -Tem David Scagliola
Councilmember Jim Fowler
Councilmember Cedric Edwards
Staff Present:
Deputy City Manager John Bierschwale
Chief of Staff Bob Cantu
City Secretary Brenda Dennis
Mayor Michael Carpenter was absent.
Call to Order
Councilmember Daryl John
Councilmember Matthew Duke
City Manager John Kessel
Executive Director Brian James
City Attorney Connie Lock
Mayor Pro-Tern Scagliola called the Regular Meeting to order at 6:00 p.rn.
Invocation and Pledges of Allegiance to the Flags of the United States and the State of Texas
Pastor Ryan Russell, Victory Assembly of God, provided the ocation followed by the Pledges of
Allegiance to the Flags of the United States and the State of Texas.
City Events and A nouncements
• Announcements of upcoming City Events (J. Bierschwale/B. James)
Mayor Pro -Tem Scagliola recognized Executive Director of Development Brian James who
provided the following announcements and upcoming events:
• Wednesday, May 14, Schertz- Cibolo Fallen Officers Memorial, Cibolo City Hall,
200 S. Main Street, 10:00 a.m.
• Sunday, May 18, National EMS Week, EMS Golf Tournament, Olympia Hills Golf
& Conference Center, registration 10:00 a.m., Shotgun start noon.
• Announcements and recognitions by City Manager (J. Kessel)
Mayor Pro -Tem Scagliola recognized City Manager John Kessel who recognized newly
appointed department heads City Marshal Michael Harris, City Engineer Kathy Woodley,
and Library Director Melissa Uhlhorn. Mr. Kessel stated how impressed he is with the work
they are doing as they are preparing their budgets and how they are providing leadership in
running their departments.
05 -13 -2014 Minutes Page - 1 -
Presentations:
• Proclamation recognizing Small Business Week
Mayor Pro -Tem Scagliola read and presented the Small Business Week proclamation to
Chamber President Maggie Titterington.
• Proclamation recognizing National Public Works Week
Mayor Pro -Tem Scagliola read and presented the National Public Works Week proclamation
to Public Works Director Sam Willoughby and members of the Public Works Department
who were present.
• Proclamation recognizing National Police Week
Mayor Pro -Tem Scagliola read and presented the National Police proclamation to Police
Chief Michael Hansen and members of the Schertz Police Department who were present.
• Hal Baldwin Scholarship Award Recommendations (B. Cantu /S. Gonzalez)
Mayor Pro -Tem Scagliola recognized Executive Assistant Sarah Gonzalez and Committee
Member Don Taylor. Ms. Gonzalez stated the Hal Baldwin Scholarship Committee met this
afternoon to review the applications received. She stated that only three applications were
received and unfortunately they did not meet the criteria that was set forth. After careful
review and much discussion, the Committee unanimously recommends that they do not
award a scholarship this year and that the money will go back into the scholarship fund for
next year. Ms. Gonzalez stated the Committee plans to discuss better ways to increase
getting the word and out and getting better participation for next year.
Hearing of Residents:
Mayor Pro -Tem Scagliola recognized the following who spoke:
I- ,=a, ,-IF.
• Mr. Bob McMahon, 6100 Covers Cove, who addressed his concerns of the new
Not-Tex Development Plan that is being proposed in his area. He addressed concerns
of traffic already affecting the area and that the proposed new outlets will direct even
more traffic to the area. Mr. McMahon requested Council to look at the flow of traffic
in this area.
Mayor Pro -Tem Scagliola encouraged Mr. McMahon to attend the Planning and
Zoning meeting scheduled for Wednesday, May 14, 2014, where he would have an
opportunity to voice his concerns.
• Mr. Robin Dwyer, 906 W. Court, Seguin, who spoke on the upcoming Republican
Primary Runoff Election, asking for support as he is running for Guadalupe County
Court-at -Law Judge #1. He reminded everyone that Early Voting begins on Monday,
May 19th through Friday, May 23ra
05 -13 -2014 Minutes Page - 2 -
Consent Agenda Items
1. Minutes - Consideration and /or action regarding the approval of the minutes of the regular
meeting of May 6, 2014 (J. KesselB. Dennis)
2. Ordinance No. 14 -D -22 — Consideration and/or action approving an Ordinance amending
the City's Code of Ordinances by revising Section 86 -115 maximum speed limits generally
on Pfeil Road from Ware Seguin Road to IH 10. Final Reading (K. Woodlee /L. Busch)
The following was read into record:
ORDINANCE NO. 14 -D -22 'IWEL
AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
PROVIDING THAT THE CODE OF ORDINANCES OF THE CITY OF SCHERTZ,
TEXAS BE AMENDED BY REVISING SECTION 86 -115, MAXIMUM LIMITS
GENERALLY ON SPECIFIC STREETS; AND PROVIDING AN EFFECTIVE
DATE.
�r
Mayor Pro -Tem Scagliola recognized Councilmember Fowler who moved, seconded by
Councilmember Edwards, to approve the consent agenda items 1 and 2. The vote was
unanimous with Mayor Pro -Tem Scagliola, Councilmembers Fowler, John, Edwards, and
Duke voting yes and no one voting no Motion Carried.
Roll Call Vote Confirmation 06, r
Mayor Pro-Tern Scagliola recognized City Secretary Brenda Dennis who recapped the votes of items
1 and 2.
Requests and Announcements
3. Announcements by City Manager _
• Citizen Kudos
• Recognition of City employee actions
• New Departmental initiatives
Mayor Pro-Tern Scagliola recognized City Manager John Kessel who introduced Senior
Associate Connie Lock, with Denton, Navarro, Rocha, Bernal, Hyde & Zech, P.C., who was
here this evening as Mr. Zech was out of town.
4. Requests by Mayor and Councilmembers that items be placed on a future City Council
agenda.
No items requested.
5. Announcements by Mayor and Councilmembers
05 -13 -2014 Minutes Page - 3 -
• City and community events attended and to be attended
• City Council Committee and Liaison Assignments (see assignments below)
• Continuing education events attended and to be attended
• Recognition of actions by City employees
• Recognition of actions by community volunteers
• Upcoming City Council agenda items
Mayor Pro -Tern Scagliola recognized Councilmember Fowler who stated he was glad to be
back after returning from a short vacation to Mississippi.
Mayor Pro -Tem Scagliola stated he attended the following ev
• Saturday, May 10, Doggie Dash
• Saturday, May 10, Hal Baldwin Memorial Ceremony
• Monday, May 12, presented a proclamation to Silver Tree
Nursing Home Week.
Adjournment
As there was no further business, the meeting was
ATTEST:
City Secretary, Brenda Dennis
05 -13 -2014 Minutes Page - 4 -
Home recognizing
Mayor Pro -Tem David Scagliola
Agenda No. 2
CITY COUNCIL MEMORANDUM
City Council Meeting: May 20, 2014
Department: Police Department
Subject: Ordinance No. 14 -M -23 -Sex
Offender Ordinance (First
Reading)
BACKGROUND
The City of Schertz (the "City ") requests authorization to add Chapter 75 to the City's Code of
Ordinances to make it unlawful for sex offenders to reside within 1,000 feet of a child safety
zone or go in, on, or within 1,000 feet of a child safety zone. In the proposed ordinance, child
safety zone is defined as a school, licensed day -care facility, private or public playground, public
or private youth center, public swimming pool, video arcade facility, public or private park, or
public library.
These restrictions are necessary because certain crime studies indicate that sexual offenders are
more likely than any other type of offender to be re- arrested for a new rape or sexual assault. In
addition, certain crime studies also suggest that individuals commonly commit crimes in close
proximity to where they reside.
Both the restrictions on sex offenders in the proposed ordinance relating to residency and going
in, on, or within a child safety zone are consistent with the restrictions that the State of Texas has
established in Article 42.12 (13B) of the Texas Code of Criminal Procedure.
Goal
The City seeks to protect the health, safety, and welfare of children by reducing
opportunities for sexual predators to come into contact with children.
Community Benefit
The benefit of this ordinance is to create a safer community by designating
restricted areas in the City in which sexual predators cannot reside near or go in,
on, or within.
50631771.1
Summary of Recommended Action
Recommend approval of first reading of ordinance adding chapter 75 to the City Code of
Ordinances to make it unlawful for certain sex offenders to reside within 1,000 feet of a
child safety zone and prohibiting sex offenders from going in, on, or within 1,000 feet of
a child safety zone.
FISCAL IMPACT
None.
RECOMMENDATION
Recommend approval of First reading of Ordinance No. 14 -M -23
ATTACHMENT(S)
Ordinance No. 14 -M -23
Exhibit A -study relating to "Crime Places in Crime Theory"
Exhibit B -Doe v. Miller, 405 F.3d 700 (8th Cir. 2004)
50631771.1
ORDINANCE NO. 14 -M -23
AN ORDINANCE AMENDING THE CITY'S CODE OF ORDINANCE BY
ADDING CHAPTER 75 MAKING IT UNLAWFUL FOR CERTAIN SEX
OFFENDERS TO RESIDE WITHIN 1000 FEET OF A CHILD SAFETY
ZONE; MAKING IT ILLEGAL FOR SEX OFFENDERS TO GO IN, ON,
OR WITHIN 1000 FEET OF A CHILD SAFETY ZONE; PROVIDING
EXCEPTIONS TO THE ORDINANCE; AND PROVIDING PENALTIES
FOR VIOLATIONS OF THE ORDINANCE
WHEREAS, the City of Schertz, Texas (the "City "), has a compelling interest in protecting the
health, safety and welfare of children by reducing opportunities for sexual predators to come in
contact with children; and
WHEREAS, victims of childhood sexual abuse are known to suffer long - lasting emotional,
behavioral, psychological, and other physical and mental health- related trauma; and
WHEREAS, studies readily available in the public domain, one of which is attached hereto as
Exhibit A, indicate that individuals commonly commit crimes in close proximity to where they
reside; and
WHEREAS, courts upholding the validity of similar residency restrictions, including the court
in Doe v. Miller, 405 F.3d 700, 715 (8th Cir. 2004), cent. denied, Doe v. Miller, 546 U.S. 1034
(2005), attached hereto as Exhibit B, have determined that "when convicted sex offenders reenter
society, they are much more likely than any other type of offender to be re- arrested for a new
rape or sexual assault "; and
WHEREAS, to protect children from sex offenders, the City Council finds it necessary to amend
the City's Code of Ordinances, Chapter 75, to create restrictions prohibiting registered sex
offenders from residing near or going in, on, or within Child Safety Zones (hereinafter defined);
and
WHEREAS, the laws of the State of Texas, including those found in Chapter 51 of the Texas
Local Government Code and the City's Charter, authorize the City to adopt ordinances for the
good government, peace, order, and welfare of the City; and
WHEREAS, the Texas Legislature has deemed it appropriate in Article 42.12 (13B) of the
Texas Code of Criminal Procedure to establish a 1000 -foot safety zone for children as a
condition of community supervision for those convicted of certain sexual offenses; and
WHEREAS, the City Council of the City hereby finds and determines that sexual offenders who
prey on children are a threat to the public health, welfare, and safety of the citizens of the City;
and
WHEREAS, the City Council hereby finds and determines that prohibiting individuals required
to register on the Texas Department of Public Safety's Sex Offender Database from residing near
or going in, on, or within a Child Safety Zone (hereinafter defined) will reduce opportunities for
sexual offenders to come into contact with children; and
WHEREAS, the City Council hereby finds and determines that the City's residency restriction
and prohibition on going in, on, or within a Child Safety Zone (hereinafter defined) on sex
offenders is consistent with the current child safety zone statutes established by Article 42.12
(13B) of the Texas Code of Criminal Procedure; and
WHEREAS, the City finds and determines that rules and regulations adopted herein promote the
public health, welfare, and safety of the citizens of the City.
NOW THEREFORE; BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS:
SECTION 1. CODE AMENDMENT. That Chapter 75 of the Code of Ordinances is amended
by adding a new Chapter 75 to read as follows:
CHAPTER 75
SEXUAL OFFENDER RESIDENCY AND CHILD SAFETY ZONE RESTRICTIONS
Sec. 75 -1. Definitions. For purposes of this Section, the following terms, words, and the
derivation thereof shall have the meaning given herein.
Child means any person under the age of seventeen (17).
Child Safety Zone means any premises that is used as a school, licensed day -care facility, private
or public playground, public or private youth center, public swimming pool, video arcade
facility, public or private park, or public library.
In this section, "playground," "premises," "school," "video arcade facility," and "youth center"
have the meanings assigned by Section 481.134 of the Texas Health and Safety Code, as
amended.
Database means the Texas Department of Public Safety's Sex Offender Database.
Day -Care Facility means a facility licensed by the State of Texas, which provides care, training,
education, custody, treatment, or supervision for children for less than twenty -four (24) hours a
day.
Public or Private Park means (i) any land designated for public recreation or any athletic field
that is owned, leased, or maintained by the City, including, but not limited to, conservation areas,
jogging trails, hiking trails, bicycle trails, recreational centers, water parks, or public swimming
pools or (ii) any private land that is used by the general public as a recreational or park area,
including, but not limited to, a park or playground maintained by a community home owner's
association.
Residence, Permanent means the place within the City that a person registers or verifies under
Article 62.152, Texas Code of Criminal Procedure, as the person's residence.
Residence, Temporary means a place where a person abides, lodges, or resides for a period of
fourteen (14) or more days in the aggregate during any calendar year and which is not the
person's permanent address, or a place where a person routinely abides, resides, or lodges for a
period of four (4) or more consecutive or nonconsecutive days in any month and which is not the
person's permanent residence.
Sex Offender means an individual who has been convicted of or placed on deferred adjudication
for a sexual offense involving a person under seventeen (17) years of age for which the
individual is required to register as a sex offender under Chapter 62, Texas Code of Criminal
Procedure.
Sec. 75 -2. Sexual Offenders Residence Prohibition
(a) It is unlawful for a Sex Offender to establish a Permanent Residence or Temporary
Residence within 1000 feet of any Child Safety Zone.
(b) A Sex Offender shall not on each October 30th and 31st (or any date set by the City for
trick -or- treaters) between the hours of 4:00 p.m. and 11:00 p.m. leave an exterior porch
light on or otherwise invite trick -or- treaters to solicit the premises.
(c) For the purposes of subsection (a), measurement is made in a straight line, without regard
to intervening structures or objects, from the nearest portion of the Residence to the
nearest property line of the Child Safety Zone.
(d) It is a defense to prosecution under this section that a person who has a Residence within
1000 feet of a Child Safety Zone:
(1) Is under 18 years of age and:
(A) resides with the person's parent or legal guardian; or
(B) has not been convicted of an offense after the effective date of this Ordinance
that:
(i) requires the person to register under Article 62.001(5), Texas Code of
Criminal Procedure; and
(ii) Involves a victim or intended victim who was 17 years of age or
younger;
(2) Established the Residence and complied with all the sexual offender registration laws
of the State of Texas prior to the effective date of this Ordinance, and has not been
convicted of an offense after the effective date of this Ordinance that:
(A) requires the person to register under Article 62.001(5), Texas Code of
Criminal Procedure; and
(B) involves a victim or intended victim who was 17 years of age or younger; or
(3) Established the Residence and complied with all sexual offender registration laws of
the State of Texas prior to the date a new Child Safety Zone is established, and has not
been convicted of an offense after the effective date of this Ordinance, or the date the
new Child Safety Zone is established, that:
(A) requires the person to register under Article 62.001(5), Texas Code of
Criminal Procedure; and
(B) involves a victim or intended victim who was 17 years of age or younger.
(e) For purposes of Subsection (d), a person is considered to have established a residence at a
correctional facility, as that term is defined under Section 1.07(14), Texas Penal Code, in
which the person is confined for a conviction of any criminal offense and for more than
seven consecutive days after the effective date of this Ordinance.
(f) It is a defense to prosecution under this section that the person required to register on the
Database has been exempted by a court order from registration as a Sex Offender under
Chapter 62, Texas Code of Criminal Procedure.
(g) It is a defense to prosecution under this section that the person required to register on the
Database has had the offense for which the Sex Offender registration was required
reversed on appeal or pardoned.
(h) It is a defense to prosecution under this section that the person's duty to register on the
Database has expired.
(i) It is a defense to prosecution under this section that the information on the Database is
incorrect, and the person listed on the Database can provide evidence to show such error.
(j) It is not a defense to prosecution under this section that a person, who is required to
register as a Sex Offender under the Texas Code of Criminal Procedure, was allowed by
mistake or error of the City to reside in a Residence that is within 1000 feet of any Child
Safety Zone.
Sec. 75 -3. Sexual Offenders Prohibited from Going In, On, or Within Child Safety Zones.
(a) It is unlawful for a Sex Offender to knowingly or intentionally go in, on, or within 1000
feet of a Child Safety Zone.
(b) Upon discharge from community supervision or parole, it is a defense to prosecution
under this section that, at the time a person prohibited from going in, on, or within a
Child Safety Zone pursuant to sub - section (a) went in, on, or within the Child Safety
Zone,
(1) such person was the parent or legal guardian of a child 18 years of age or younger
who resides with the person; and
(2) the child was on the premises of the Child Safety Zone.
(c) It is a defense to prosecution under this section that the person required to register on the
Database has been exempted by a court order from registration as a Sex Offender under
Chapter 62, Texas Code of Criminal Procedure.
(d) It is a defense to prosecution under this section that the person required to register on the
Database has had the offense for which the Sex Offender registration was required
reversed on appeal or pardoned.
(e) It is a defense to prosecution under this section that the person's duty to register on the
Database has expired.
(f) It is a defense to prosecution under this section that the information on the Database is
incorrect, and the person listed on the Database can provide evidence to show such error.
Section 75 -4. Child Safety Zone Map. The Schertz Police Department will maintain a map
illustrating the Child Safety Zones in the City. The City shall review the map annually for
changes. This map will be available to the public at the Schertz Police Department or available
on both the City website and the Schertz Police Department website.
Section 75 -5. Penalties. Any person found guilty of violating this Ordinance shall be guilty of
a misdemeanor and upon conviction thereof shall be fined an amount not to exceed the
maximum amount allowed by law. Each day that a violation exists shall constitute a separate
offense.
SECTION 2. CUMULATIVE CLAUSE. This Ordinance shall be cumulative of all provisions
of the City, except where the provisions of this Ordinance are in direct conflict with the
provisions of such Ordinance, in which event the conflicting provisions of such Ordinance are
hereby repealed.
SECTION 3. SEVERABILITY. It is hereby declared to be the intention of the City Council of
the City that the phrases, clauses, sentences, paragraphs, and sections of this Ordinance are
severable, and if any phrase, clause, sentence, paragraph or section of this Ordinance should be
declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction,
such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences,
paragraphs or sections of the Ordinances, since the same would have been enacted by the City
Council without incorporation in this Ordinance of any such unconstitutional phrases, clause,
sentence, paragraph, or section.
SECTION 4. PROPER NOTICE AND MEETING. It is hereby officially found and
determined that the meeting at which this Ordinance was adopted was open to the public and that
public notice of the time, place, and purpose of said meeting was given as required by the Open
Meetings Act, Chapter 551 of the Texas Government Code, as amended.
SECTION 5. EFFECTIVE DATE. This Ordinance shall be effective upon passage and
publication as required by State and local law.
PASSED and APPROVED on first reading this the 20th day of May 2014.
PASSED, APPROVED and ADOPTED on second reading this the day of 12014
APPROVED:
Michael R. Carpenter, Mayor
ATTEST:
Brenda Dennis, City Secretary
APPROVED AS TO FORM:
City Attorney
Exhibit A
Exhibit B
CRIME PLACES IN CRIME THEORY
by
John E. Eck
Crime Control Institute,
and the University of Maryland, College Park
and
David Weisburd
Hebrew University
Abstract: Criminologists and crime prevention practitioners are increasingly
aware of the importance of places of crime. A place is a very small area,
usually a street comer, address, building, or street segment. A focus on crime
places contrasts with a focus on neighborhoods. Neighborhood theories
usually highlight the development of offenders. while place level explana-
tions emphasize crime events. Three perspectives suggest the importance of
places for understanding crime: rational choice, routine activity theory, and
crime pattern theory. Though these perspectives are mutually supportive,
routine activity theory and crime pattern theory provide different explana-
tions for crime occurring at different places. Five areas of research help us
understand the importance of places: crime concentration about particular
facilities (e.g., bars); the high concentration ofcrime at some addresses and
the absence of crime at others; the preventive effects of various place
features; the mobility of offenders; and studies of how offenders select
targets. Concern has been expressed that efforts to prevent crime at specific
locations will only move it to other, unprotected locations. Recent research
suggests that these fears may be exaggerated, and that under some circum-
stances the opposite effect occurs: instead of crime displacing, the benefits
of the prevention efforts diffuse to unprotected locations. This paper con-
cludes with a review of the 14 original articles in this volume.
Following a rape at an Orlando motel, the victim sued the motel owners.
She claimed that the crime was foreseeable and that the motel had not
taken sufficient precautions to prevent such incidents. I
Address correspondence to: John Eck, Department of Criminology and Criminal
Justice, Suite 2220 LeFrak Hall, University of Maryland, College Park, MD 20742.
John E Eck and David Weisburd
A proposal to locate a checkcashing business in a neighborhood drew
the ire of a San Francisco neighborhood association. The association.
fearing increased street muggings, complained to zoning and other city
agencies in an attempt to stop this establishment from opening (Bolton,
1993).
Police in Oakland, CA developed a drug enforcement program that
focused on nuisance addresses rather than problem people. They call
it beat health, because they believe that the problem locations are the
source of drug and other nuisance problems in Oakland neighborhoods
(Green, 1993).
A study found that about 15% of Milwaukee's taverns were responsible
for over half of tavern crimes in that city (Sherman et al., 1992).
These examples provide only a glimpse of the growing recognition of
the role of place in crime and crime control. Law suits that hinge on the
ability of claimants to show that buildings and parking lots are unneces-
sarily dangerous abound in our civil courts (Bates and Dunnell, 1994).
Local newspapers are full of community protests against drinking estab-
lishments, sex shops, or 24 -hour stores that are seen as magnets for
crimes and criminals. Community advocates suggest taking legal action
against the owners of places that disrupt neighborhoods (Cadwalder et al.,
1993). Police programs that focus on where crimes happen rather than
the offenders who commit them are developing in cities and towns
throughout the country, at the same time that a series of academic studies
show that crime is concentrated at specific places even within neighbor-
hoods that have high crime rates.
Concern with the relationship between crime and place is not new. As
early as the first half of the nineteenth century, French scholars analyzed
the distribution of crime across regions with differing ecological and social
characteristics (see Guerry, 1833; Quetelet, 1842). in the U.S., advocates
of the pioneering "Chicago School" of sociology carefully examined the
location of crime in the city of Chicago. They concluded that characteristics
of the urban environment are critical to explaining the emergence of crime
in specific communities (see Burgess, 1925; Thrasher, 1927; Shaw and
McKay, 1942). However. these early attempts to understand the relation-
ship between crime and place took a "macro" approach — looking at
aggregates of places such as regions, states, cities, communities and
neighborhoods— rather than a "micro" approach that examines the places
themselves.
Recent interest in crime and place has focused on micro -level relation-
ships. Such studies began with efforts to identify the relationship between
Crime Places in Crime Theory 3
specific aspects of urban design (Jeffrey, 197 1) or urban architecture
(Newman, 1972) and crime, but broadened to take into account a much
larger set of characteristics of physical space and criminal opportunity
(e.g., Brantingham and Brantingham, 1975, 1977, 1981; Mayhew et al.,
1976; Duffala, 1976; Rengert, 1980, 1981; Stoks, 1981; Le Beau, 1987;
Hunter, 1988). These studies drew distinctions between the site in ques-
tion and the larger geographical area (such as neighborhood, community,
police beat, or city) that surrounds it.
Places in this micro context are specific locations within the larger
social environment. They can be as small as the area immediately next to
an automatic teller machine or as large as a block face, a strip shopping
center, or an apartment building. Often places are thought of as addresses,
specific types of businesses, or blockfaces.
This volume is dedicated to the micro -level examination of crime and
place. Our concern is not with the larger social and ecological units that
are often the focus of social programs and crime prevention efforts.
Sherman et al. (1989) suggest that this new focus on small discrete areas
is radical enough to be properly seen as a distinct new area of study in
criminology. Though it is a departure from prior criminological work, as
we will show next, the criminology of places fits neatly within several
existing theories of crime.
In developing this anthology, we sought to bring together major new
work about crime and the concept of place. The advent of high- speed,
cheap computing, widespread use of computer -aided dispatch systems by
the police, and inexpensive but powerful computer mapping has allowed
criminologists to examine places in ways that were unavailable just a
decade ago. Recent trends in our understanding of the role of opportunity
in crime prevention (Clarke, 1993) and the impacts of crime displacement
(see Gabor, 1990; Barr and Pease, 1990; Clarke, 1992; Eck, 1993; Clarke
and Weisburd, 1994) suggest as well that place should be a central
component in crime theory and crime prevention. This introduction begins
by reviewing how these recent innovations in crime prevention theory
contribute to crime place research and crime prevention efforts. It then
turns to the empirical evidence that has been gathered about crime places
and their implications for formulating crime prevention policies. In con-
cluding, we discuss our choice of papers to include in this collection and
4 John E. Eck and David Weisburd
the specific contributions they make to our understanding of crime places
and our efforts to control them.
CRIME PLACES AND CRIME THEORY
Theories of crime can be divided into those that seek to explain the
development of criminal offenders, and those that seek to explain the
development of criminal events. Theories of and research on offenders
have been dominant in the development of criminology (Clarke, 1980).
Most research on crime and crime prevention has been focused on why
certain types of people commit crime and what we can do about them. It
is only recently that serious attention has begun to be paid to explaining
crimes rather than the criminality of people involved in crime. Concern
with place is very much central to this approach.
While theories of crime and criminality are often seen as competing
explanations of the crime problem, we think it useful to begin with the
idea that offender and event explanations are complements to each other
rather than competitors. Offenders may be highly motivated, but unless
they create a crime event there is nothing to explain. Similarly, given a
criminal act, the full etiology of the event must in some manner include
an explanation of the offender. Offender theories should eventually tell us
how people come to be criminal offenders, and the circumstances under
which they desist from offending. Such theories may suggest crime
prevention strategies that are focused on those individuals who are likely
to become serious violent offenders, or high -rate offenders committing less
serious crimes. However, to date theories about the development of
criminality do not provide a solid basis for making such predictions, and
there is little consensus as to what such a theory in the future would look
like. Consequently, a preventive strategy based on offender theories is not
near at hand. But even if we were to understand more about the develop-
ment of criminality than we presently do, it is not clear whether all or even
most offenders can be prevented from involvement in crime (see Clarke
and Weisburd, 1990).
So even if we had a good explanation for the development of offenders,
we would still need a good explanation for criminal events. Specifically,
we would want a theory that could tell us why certain targets are selected
by offenders —why some targets are attractive and others are repellent.
What are the impediments to offending that are presented to offenders,
and how are they overcome? What types of routine activities of offenders,
victims and what have sometimes been termed guardians contribute to
the likelihood of crime occurring in particular places? Though a com-
prehensive crime event theory that would provide unambiguous answers
Crime Places in Crime Theory 5
to such questions is decades away, there is considerable consensus among
criminologists who study crime events as to what such a theory should
look like. Moreover, there is growing evidence that event - prevention
strategies can have a dramatic and immediate impact on specific crime
problems (see Clarke, 1992). Below we describe how crime and place come
together in such theories and how they have been applied to crime
prevention.
CRIME EVENT THEORY AND CRIME PLACES
Three recent theoretical perspectives — rational choice, routine activity
theory and crime pattern theory—have influenced our understanding of
the importance of place in crime prevention efforts. A rational choice
perspective provides the basic rationale for defining place as important,
since it suggests that offenders will select targets and define means to
achieve their goals in a manner that can be explained (Cornish and Clarke,
1986). Some claim that this perspective is to some degree untestable, as
it is almost always possible to interpret behavior as rational from the
perspective of the offender (Parsons, 1951). Others have demonstrated
that it is possible to test various forms of rational choice (see Hogarth and
Reeler, 1987). Nevertheless, a rational choice perspective can be used to
develop testable propositions describing crime events and offender behav-
ior. This is particularly true if a rational choice perspective is used in
conjunction with routine activity theory (see Clarke and Felson, 1993).
Routine activity theory seeks to explain the occurrence of crime events
as the confluence of several circumstances (Cohen and Felson, 1979;
Felson, 1986, 1994; see also Felson in this volume). First, there must be
a motivated offender. The explanation of the development of motivated
offenders is the goal of offender theories. Second, there must be a desirable
target. Third, the target and the offender must be at the same place at the
same time. Finally, three other types of controllers— intimate handlers,
guardians and place managers —must be absent or ineffective.
Intimate handlers are people who have direct personal influence over
an offender (such as parents, teachers, coaches, friends or employers). In
the presence of such people, potential offenders do not commit crimes.
Most adults are away from intimate handlers for many hours of the day
and many offenders, both juvenile and adult, have few or no intimate
handlers ( Felson, 1986).
People who can protect targets are guardians. They too must be missing
from the place. Guardians include friends (as when three women decide
to run together in a park in order to protect each other), as well as formal
authorities such as private security guards and public police. People or
6 Jahn E. Eck and David Weisburd
things that are separated from guardians for sustained periods have
elevated risks of victimization.
People who take care of the places are place managers. Place managers,
(such as janitors, apartment managers, and others) regulate behavior at
the locations they control. Lifeguards, in addition to preventing drownings,
also help assure that people who come to a pool behave themselves out of
the water. For a crime to occur, such people must be absent, ineffective
or negligent (Eck, 1994).
Crime pattern theory is particularly important in developing an under-
standing of crime and place because it combines rational choice and
routine activity theory to help explain the distribution of crime across
places. The distribution of offenders, targets, handlers, guardians, and
managers over time and place will describe crime patterns. Changes in
society have increased the number of potential targets while separating
them from the people who can protect them (handlers, guardians, and
managers). Reasonably rational offenders, while engaging in their routine
activities, will note places without guardians and managers and where
their handlers are unlikely to show up. Pattern theory explores the
interactions of offenders with their physical and social environments that
influence offenders' choices of targets.
According to crime pattern theory, how targets come to the attention
of offenders influences the distribution of crime events over time, space,
and among targets ( Brantingham and Brantingham, 1993). This occurs
because offenders engage in routine activities. Just like other, nonoffend-
ing individuals, offenders move among the spheres of horze, school, work,
shopping, and recreation. As they conduct their normal legitimate activi-
ties, they become aware of criminal opportunities. Thus, criminal oppor-
tunities that are not near the areas offenders routinely move through are
unlikely to come to their attention. A given offender will be aware of only
a subset of the possible targets available. Criminal opportunities found at
places that come to the attention of offenders have an increased risk of
becoming targets ( Brantingham and Brantingham, ]993). While a few
offenders may aggressively seek out uncharted areas, most will conduct
their searches within the areas they become familiar with through non-
criminal activities.
The concept of place is essential to crime pattern theory. Not only are
places logically required (an offender must be in a place when an offense
is committed), their characteristics influence the likelihood of a crime.
Place characteristics highlighted by routine activity theory include the
presence and effectiveness of managers and the presence of capable
guardians. Crime pattern theory links places with desirable targets and
Crime Places in Crime Theory 7
the context within which they are found by focusing on how places come
to the attention of potential offenders.
It is worth noting that although crime pattern theory and routine
activity theory are mutually supportive in many respects, they can give
rise to differing explanations of crime at specific locations. Given a set of
high -crime locations, a crime pattern theorist would focus on how offend-
ers discover and gain access to the place. A routine activity theorist would
focus instead on the behaviors of the targets and the possible absence of
controllers whose presence could have prevented the offenses from taking
place — guardians, handlers, and place managers. In other words, for the
crime pattern theorist, places are problematic because of their location
and relationship to the environment. For the routine activity theorist,
places are problematic because of the types of people present and absent
from the location. Clearly, both explanations can be valid in different
contexts and situations. It is possible that crime - specific explanations may
show that for some events crime pattern theory is a particularly useful
explanation, for other events routine activity theory offers greater insights,
and for still a third group of events some combination of the two theories
is needed.
CRIME PLACE RESEARCH
Recent perspectives in criminological theory provide a basis for con-
structing a theory of crime places. However, such a theory must be
developed in reference to a growing literature about the relationship
between crime and place. Below we summarize recent empirical evidence
from five different types of research, each of which sheds light on the role
of place in crime events (see Figure 1). Three of these use the place as a
unit of analysis, making crime events problematic at the outset. In these
studies researchers have tried to understand how the facilities associated
with place influence crime, why crime clusters at places, and finally how
the social and physical characteristics of places alter opportunities for
crime. Two of the research categories focus on people but nonetheless lead
to an understanding of the role of place in crime. In mobility and target
studies, we gain insight into how offenders choose crime places and the
social factors that inhibit their reach. All of the studies, except those
examining target selection, use official crime and arrest records for data.
8 John E. Eck and David Woisburd
Offender interviews and observations form the basis of offender
decisionmaking research.
Figure 1: Studies of Crime and Place
OFFENDERS PLACES
target mobility features clustering facilities
selection
Facilities and Crime
Facilities are special - purpose structures operated for specific func-
tions. Examples of place facilities include high schools, taverns, conve-
nience stores, churches, apartment buildings, and public housing
projects. One way places matter is that. different types of facilities increase
or decrease crime in their immediate environment. As suggested by
offender search theory, this could occur because it draws people, some of
whom are offenders, to the area. Or, as routine activity theory suggests,
this occurs because of the way the facility is managed, the desirability and
Crime Places in Crime Theory 9
accessibility of targets found in the facility, the likelihood of handlers being
at the location, and the level of guardianship found at the site. Evidence
supporting either theory can be found in studies of crime around facilities
(see, for example, Roncek, 1981). Unfortunately, these studies cannot
compare the relative evidence supporting the two explanations because
the studies do not differentiate between offenses at the facility and those
in the surrounding block.
Another problem with some of these studies is that they often do not
differentiate between crime density (crimes per land area) and victimiza-
tion risk (crimes per target) (Wikstrom, 1993). Thirty years ago Boggs
(1965) pointed out that most calculations of crime rates are not estimates
of crime risk because inappropriate measures of the crime opportunities
(targets) are used for the denominator in the calculations. Burglary rates
are normally calculated by dividing the number of burglary events by the
population of the area being studied. The appropriate denominator for
calculating risk is the number of buildings in the area. Burglaries may be
concentrated in one area relative to another because there are more places
to break into in the first area, or because they differ in some other factor
(e.g., the first neighborhood may be populated by childless couples in
which both partners work, whereas the second area is populated by retired
couples who spend a great deal of time around their homes).
Measures of opportunities have been used in some of these studies,
but they are often indirect measures of the number of targets at risk.
Engstad (1975), for example, used the number of bar seats as an indirect
measure of the opportunity for assaults in and around bars. If bar seats
are used to capacity, or if the vacancy rate for these spots is constant
across bars, then they may be reasonable approximations of the number
of targets at risk. If, however, some bars have a greater proportion of their
seating empty than other bars, and vacancy rates are related to crime (e.g.,
bars with many crimes scare off potential customers), the opportunity
measures may introduce a confounding influence to the estimated rela-
tionship being examined.
Roncek and his colleagues have conducted a series of facilities studies
in Cleveland and San Diego, and they follow a standard methodology. The
number of facilities of interest are counted in each of the city's census
blocks using phone directories or other locally available rosters. The crime
count by census block is derived from police data, and census files provide
demographic information for control variables. These studies have found
that bars and high schools are associated with elevated crime counts in
the blocks in which they are located, but have little impact beyond the
immediate block ( Roncek, 1981; Roncek and Bell, 1981; Roncek and
Faggiani, 1985; Roncek and Lobosco, 1983; Roncek and Meier, 1991;
10 John E. Eck and David Wnisburd
Roncek and Pravatiner, 1989). The research has also found that public
housing projects in Cleveland are associated with a small but significant
increases in crime on their blocks ( Roncek et al., 1981). Because compo-
sitional variables have been controlled for, the facility effects are assumed
due to the place and not to the people who reside on the block.
A number of other studies report similar findings. Frisbie et. at. (1977)
reported clustering of crimes within .15 of a mile around bars in Minne-
apolis. These counts were not standardized by controlling for the number
of criminal opportunities available at different distances from the bars, so
it is unclear whether this is due to an opportunity gradient around bars
or whether bars enhance the criminal propensity of people who are
attracted to bars.
Engstad (1975) compared the number of auto crimes and bar crimes
(assault, disorderly conduct, and violations of the liquor act) in small areas
with hotels to the same crime counts in adjacent areas without hotels. He
standardized the crime counts by the number of residents living in the
areas and found an association between the presence of hotels and higher
rates of crime per thousand people. When Engstad (1975) compared hotel
areas and standardized the crime counts by calculating opportunity -based
rates for each crime (i.e.. dividing auto crimes in each hotel area by the
number of parking places in each area, and dividing the bar crimes in the
area by the number of seats in bars), he found that one particular hotel
area had higher auto and bar crime rates than the other hotel areas.
Engstad (1975) conducted the same types of analysis for shopping
centers using auto crimes, thefts, and other property crimes and found
that areas with shopping centers had higher rates of crime per thousand
population than areas without shopping centers. When he compared the
shopping center areas for these crimes standardized by opportunity-based
measures (i.e., parking places for auto crime, retail space per 1,000 square
feet for thefts, and acres of shopping center for mischief), Engstad (1975)
again found variation among the shopping center areas. Because Engstad
did not compare crime events in target areas to crime events in their
surrounding areas controlling for opportunities, we cannot determine if
the associations he found are due to different opportunities available or
to the people who use the areas. Even when controls for opportunity were
introduced, controls for other structural and compositional variables were
not used. Consequently, we have no idea why such variation might exist.
Spelman (1992) examined the association between abandoned unse-
cured residential homes and crime on the blocks on which these homes
were located. He found a positive association, though he did not control
for the criminal opportunities on the blocks. He does provide evidence that
the only significant difference between the blocks with abandoned homes
Crime Places in Crime Theory 11
and those without such homes was that the former had more owner -oc-
cupied buildings.
Brantingham and Brantingham (1982) studied the association between
commercial burglaries per store on blocks and the presence of five types
of "commercial landmarks ": fast food restaurants, traditional restaurants,
supermarkets, department stores, and pubs. Though supermarket and
department store blocks had commercial burglary rates comparable to
blocks without these landmarks, the other three landmarks had commer-
cial burglary rates 2 to 2.5 times higher than the nonlandmark average
(Brantingham and Brantingham, 1982).
Rengert and Wasilchick (1990) provide evidence from interviews with
burglars that drug dealing locations might draw predatory offenders to an
area to purchase drugs. These offenders then may commit predatory
crimes in the area surrounding the drug places. Providing partial support
for the view that places attract offenders for one purpose who then
participate in other crimes, Weisburd et al. (1994) found an over-
representation of crime calls for a series of crime categories in places that
were identified primarily as drug markets. 2 These studies suggest three
possible hypotheses: there is something about the place that fosters
deviance in the block; the facilities draw people into the block; or both.
Unfortunately, these studies cannot test these hypotheses separately.
Several studies suggest that the more access people have to an area or
place, the more crime in the area or place. Friedman et al. (1989) examined
the effects of casino gambling in Atlantic City on crime in the small towns
along the main routes to this resort. They found that crime counts
increased in these towns relative to towns not located on routes to Atlantic
City, controlling for town population, unemployment, value of commercial
and residential real estate per square mile, and population density. If we
could assume that the small towns on the route did not change in social
composition or structure at the same time casino gambling was intro-
duced, the increase in crime would be most plausibly explained by the
increases in outsiders passing through the towns. Unfortunately, the
authors provide no evidence that the social composition and structure
were not changed by the growth of Atlantic City.
Duffala (1976) and Nasar (198 1) examined stores with varying crime
counts (convenience store robberies and commercial burglaries, respec-
tively) and found that those with the most crime were located on major
thoroughfares. Comparisons of high- and low -crime neighborhoods
(Greenberg and Rohe, 1984; White, 1990) and street segments (Frisbie et.
al., 1977) show that area accessibility is associated with higher crime
rates. The more people who pass a place, the greater the chances that the
place will be the scene of a crime. This conclusion is consistent with the
12 John E. Eck and David Weisburd
hypothesis that places that attract large numbers of people will suffer more
victimizations (these studies do not rule out the alternative hypothesis,
however). This suggests that facilities attract people into the block, some
of whom are motivated to commit crimes (Brantingham and Brantingham,
1981).
Though facilities may attract offenders onto a block, the variation in
crime among blocks with the same facilities suggests that there may be
important differences in the social structure of the places that account for
differences in crime counts, even when controlling for crime opportunities
(see Engstad, 1975). Further, all of the studies to date have been of
facilities that may have low guardianship (because they attract large
numbers of people with little in common) and /or low levels of place
management (because of inadequate staffing or training). A study of the
effects of facilities with high guardianship and place management (e.g.,
churches) on block crime would be revealing in this respect.
Clustering
Crime events are not uniformly distributed, a fact known for over a
century. At every level of aggregation, some geographic areas have less
crime than others (Brantingham and Brantingham, 1982). At the place
level, clustering— repeat events at the same place— has been established
by Pierce et al. (1986) for Boston and by Sherman et al. (1989; see also
Weisburd et al., 1992) for Minneapolis. Such clustering has also been
established for specific crimes (e.g., see Weisburd and Green, 1994 for
drug offenses), and a number of successful crime prevention efforts have
recently taken the approach of targeting small discrete areas defined as
crime "hot spots" (e.g., see Sherman and Weisburd, 1995; Weisburd and
Green, 1995: Koper, 1995).
Forrester et al. (1988) show how a successful crime prevention cam-
paign can be built on knowledge of repeat breakins to the same residences.
Repeat breakins to the same residences were also found in Saskatoon,
Saskatchewan, Canada (Polvi et. al., 1990). Places with repeat offenses
may have persistently low guardianship of attractive targets (as well as
ineffective place managers). Offenders may select such places either as
part of a determined search or as a chance encounter while engaged in
non - criminal activities (Brantingham and Brantingham, 1981). If places
and crimes are very similar, then solutions may be relatively easy to craft.
Faced with a heterogeneous set of hot spots, effective solutions may be
more difficult to find (Buerger, 1992; Sherman, 1992a).
We have no studies that have systematically examined the social
structure and crime levels of a large sample of places to determine the link
Crime Places in Crime Theory 13
between crime and the social structure of places. We only have ethno-
graphic case studies of social relations at a single place (Liebow. 1967;
Anderson, 1978; Anderson, 1990) or at a set of places in the same
neighborhood (Suttles, 1968). Therefore, we have limited knowledge of
whether the social structure of places influences the offender's decision
to go there, or whether the social structure influences behavior once the
offender is at the place. We can, however, gain additional understanding
of these issues by examining the influence of site -level features on crime
occurrence at places.
Site Features
Studies of crime clusters show offenses occurring at places but provide
scant information as to why some places are more criminogenic than
others. Are these places the hangouts of deviants? Is there a failure of
social control at these places? Or are there features present at these
locations that attract offenders from the surrounding areas? Some insight
as to possible answers can be gained by examining studies of place
features and crime.
The strategy of defensible space entails organizing the physical envi-
ronment to enhance peoples' sense of territoriality, make it possible for
them to observe their environment, and communicate to would -be offend-
ers that they are being watched (Newman, 1972). Newman (1972) pur-
ported to find that public housing projects with defensible space features
had less crime than projects that did not have these features.
Critics have attacked Newman's research and theory. Mawby (1977)
suggested that Newman misrepresented his findings, purposely selecting
the two principal study sites to bolster his premise and failing to describe
the characteristics of the resident populations and offender rates of the
two sites. Merry (1981) found that people do not automatically scrutinize
their environment even when the physical arrangements make surveil-
lance feasible, and that offenders know this. She criticized defensible
space theory for neglecting the social dimensions of crime prevention.
Mayhew (198 1) concluded that consistent surveillance is unlikely except
by employees of organizations who control places; a number of studies
sponsored by the U.K. Home Office support this assertion ( Poyner, 1988a;
Poyner, 1988b; Webb and Laycock, 1992). Other reviews of research on
defensible space consistently reported that the theory is vague and omits
critical mediating variables ( Mawby, 1977; Mayhew, 1979; Taylor et al.,
1984).
Research on convenience stores also supports Mayhew's (1981) hy-
pothesis that employees can prevent crimes through improved surveil-
14 John E. Eck and David Weisburd
lance. Reviews of studies comparing stores with few and many robberies
point to such physical features as unobstructed windows, placement of
the cash register so that the entrance can be monitored, and lighted
parking areas fully visible from inside the store (Hunter and Jeffrey, 1992;
LaVigne, 1991).
It is unclear whether the number of employees conducting sur'eillance
makes a difference. Evaluating the impact of a Gainesville, FL city
ordinance that required two clerks to be present in the evening, Clifton
(1987) contends that robberies were reduced. This contention '.zas been
challenged by Wilson (1990) and by Sherman (1992b), both of whom claim
that Clifton failed to rule out several important rival hypotheses. Never-
theless, Hunter and Jeffrey (1992) contend that this crime prevention
measure had the strongest empirical support of all measures tested.
LaVigne (1991), however, could find no such evidence in her study of
Austin, TX convenience store crime.
Finally, from studies of the deterrent effects of guards, we find addi-
tional evidence that offenders avoid places with people trained to watch
their environment and to intervene if criminal behavior is suspected.
Hannan (1982) used multivariate crosssectional analysis to investigate
the deterrent value of bank guards in Philadelphia. He found that the
presence of guards was associated with fewer robberies, even when the
volume of banking business and the demographics of the surrounding
areas were held constant. Landes (1978) demonstrated that the decline in
aircraft hijacking in the U.S. was due principally to the installation of metal
detectors in airports and secondarily to increased use of armed air
marshals on flights. Additional police security in New York City's subway
system apparently reduced robberies there for a time, even when problems
with police falsification of crime statistics were accounted for (Chaiken et
al., 1974, 1978). Book theft from libraries was deterred through the
introduction of electronic security systems (Scherdin, 1992), while placing
attendants in some parking facilities (Laycock and Austin, 1992) or
installing closed circuit television (Poyner, 1988a) reduced auto thefts. In
summary, offenders avoid targets with evidence of high guardianship.
But note that effective guardianship is linked to place management.
In each of the studies just cited, the additional security was put in place
by the owner or manager of the place, not by the users of the place.
Site features are not only useful for enhancing surveillance, they can
also control access to places. Studies in the security literature highlight
the effectiveness of physical barriers that prevent access to targets.
Grandjean (1990) reported that Swiss banks with security screens have
fewer robberies than those without such barriers. The installation of
security screens in British post offices resulted in fewer robberies of these
Crime Places in Crime Theory 15
places (Ekblom, 1987). The value of access control features for controlling
crime depends on the crime. Eck (1994) found evidence that crack and
powder cocaine dealers may prefer apartment buildings with physical
features that control access. Thus the features that may prevent burglary
may attract drug dealing.
A third way in which site features may influence offender decisions
about places involves making the targets at the place less desirable or
hard to attack. Protecting targets at places can be accomplished, by such
tactics as securing targets, removing targets from places, or making them
appear to be less attractive. Property marking can sometimes reduce
burglaries by reducing the value of the stolen goods (Laycock, 1985). Exact
fares on buses were found to reduce robberies by securing the target to
the floor of the bus (Chaiken, Lawless et al., 1974). Cash control methods
(introducing tiinelock cash boxes, setting cash limits on draws at each
teller, installing safes with adjustable time locks) have been reported to
reduce robberies in betting shops (Clarke and McGrath, 1990). The
removal of pre - payment gas meters from residences in a housing complex
in Britain was partially responsible for reducing burglaries there (Forrester
et. al., 1990).
Finally, how places are managed may have an effect on the risks of
crime at a location, The ways in which bartenders and bouncers regulate
drinking, for example, seems to have an effect on violence in drinking
establishments (Homel and Clark, 1995). Offenders may select sites for
criminal activity based on the level of control owners (or their hired
surrogates) exercise over behavior at the location. Evidence for offender
site selection based on place management can be gleaned from systematic
comparison of crime and noncrime places. By examining the characteris-
tics of drug dealing places and nondrug dealing places in the same area
of San Diego, Eck (1994) found that crack and powder cocaine dealers
seem to prefer small apartment buildings. Smaller apartment buildings
appear to be owned by people who are not professional landlords and who
do not have great financial assets. The majority of the apartment buildings
that contain drug dealing are encumbered with debt, have lost value, and
are either just breaking even or losing money for the owner. Thus, place
management may be weaker at these locations; the landlords either do
not know how to control the behavior of their residents or they cannot
afford to do much about drug dealing. Drug dealers may select places with
weak management, either because they are kept out of strong manage-
ment places or they prefer weak management places, or both (see Eck in
this volume).
In summary, there are a variety of physical and social features of places
that enhance their attractiveness to offenders. These features include an
16 John E. Eck and David Weisburd
obvious lack of guardianship, easy access to the site, and the presence of
readily attainable valuables. Sites without these features have been shown
to have fewer crimes committed than similar sites with them. Additionally,
evaluations of crime prevention programs demonstrate that removal of
these attractive features reduces crime. Finally, how places are managed
may influence the crime at sites. These studies demonstrate that cffenders
make choices about places based on site -level social and physical features.
Offender Mobility
The fact that criminals are mobile reinforces the importance of places
for criminologists. Since offenders move about and crimes occur in a
variety of settings, place and movement matter. Studies of offender
mobility are based on official arrest and incident data from police and
prosecutors' files. Reliance on crimes resulting in an arrest creates a
potential source of bias in the results of these studies, given the low
clearance rates of the crimes studied. Mobility studies may underestimate
the distances offenders travel, if people who offend near their homes are
more likely to be caught than people who commit their crimes further
away.
Two aspects of mobility— distance and direction —have teen examined
in this literature. Distance and direction have been measured in a variety
of ways, but for the most part they are calculated by connecting the
address of a crime to the address of the offender's home. Distances
traveled by offenders from homes to crime sites usually appear to be short,
with the number of offenses declining rapidly as one moves further from
the offender's home (Capone and Nichols. 1976; Phillips, 1980: Rhodes
and Conley, 1981). At the same time, Brantingham and Brantingham
(198 1) hypothesize that offenders may avoid targets immediately adjacent
to their homes to avoid being recognized.
Mobility may also be constrained between crime sites. Weisburd and
Green (1994) argue that drug markets within close proximity to each other
have clear and defined boundaries, often circumscribed by the nature of
drug activities found in a specific place. Examining offenders who were
arrested more than once for narcotics sales in Jersey City, they found it
was very unlikely for an offender to be arrested in drug markets adjacent
to each other. Indeed, suggesting a high degree of territoriality among
offenders, it was more likely for a repeat arrestee to be arrested in a
different district in the city than in a drug market a block or two away.
Evidence suggests that there may also be substantial variation by age,
race, sex and crime type in offender mobility. Young offenders appear not
Crime Places in Crime Theory 17
to travel as far from home as older offenders (Phillips, 1980; Nichols,
1980). African- American offenders may not travel as far to commit crimes
as whites (Phillips, 1980; Nichols, 1980). Women may travel further than
men to commit crimes (Phillips, 1980), but may not travel as far from home
to engage in robberies (Nichols, 1980). Expressive crimes —e.g., rapes and
assaults —are usually committed closer to home than instrumental
crimes — burglary and robbery— (Phillips, 1980; Rhodes and Conley,
1981). For robberies, offenders attacking commercial targets seem to
travel further than offenders attacking individuals (Capone and Nichols,
1976). Drug dealers may have the shortest travel distances of offenders
studied, since a large proportion are arrested at their home address (Eck,
1992).
Offender mobility studies investigating direction consistently
demonstrate that offenders move from residential areas with fewer targets
to areas with more targets (Boggs, 1965; Phillips, 1980; Costanzo et al.,
1986). If the residential areas of offenders are target -rich, taen travel
distances are shorter than when the offenders' residential areas are
target -poor (Rhodes and Conley, 1981). Property offenders avoid targets
close to home where they might be recognized (Suttles, 1968). Rand (1986)
compared offense place addresses to offender and victim home addresses
and found that the most common pattern was that of each address located
in a different census tract. Further, as the distribution of targets in a
metropolitan area changes over time, offenders' direction and travel
distance follow the targets (Lenz, 1986).
Though the search area of offenders may be limited, it does not seem
to be random. Offenders appear to search for targets, though age, race
and possibly gender may affect search strategy. Carter and Hill (1976)
suggest that black and white offenders have different cognitive maps (i.e.,
mental images of their environments), and these may influence target
search patterns,.
The preceding studies have often been interpreted as evidence of
rational and deliberative target - searching behavior, and the influence of
personal characteristics and the distribution of crime targets on this
behavior. These studies, however, are consistent with two different target -
search hypotheses: that offenders actively seek out attractive targets with
low guardianship, and that they chance upon such opportunities while
engaged in routine non - criminal activities. For example, Rhodes and
Conley (1981) puzzle over an anomalous finding: that offenders seem to
skip over areas of small businesses close to their home neighborhoods but
prey on small businesses further away. Presumably, if offenders were
aggressively seeking targets, then closer opportunities would be victimized
more frequently than those further away. However, if offenders are finding
is John E. Eck and David Weisburd
opportunities while going to and from work, school, stores, recreation
facilities and other sites for common activities, and these places are
located at some distance from offenders' places of residence, then this skip
pattern may be more explicable.
Offenders' cognitive maps may not include much information about
areas they pass through, but may be rich in detail about places where
they go for legitimate purposes (Brantingham and Brantingharr.., 1981).
An example of this can be found in a study of crime in Stockholm.
Wikstrom (1995) describes how youths living outside the center city use
public transportation to go to the center city for entertainment and
shopping. The concentration of legitimate activities that are attractive to
youths also creates an environment rich in targets. As a consequence,
center -city Stockholm has more crimes per land area than othcr parts of
the city ( Wikstrom, 1995).
Offender Target Selection
Offenders themselves should be able to describe their decis'on- making
processes, and a number of studies have examined crime site selection
from their point of view. Most of these studies involve interviewing either
a sample of subjects in custody or several offenders freely plying their
craft. Most of the studies are of persistent adult offenders, so the conclu-
sions one draws from them are unlikely to match the conclusions one
would draw from a representative sample of offenders. Further compro-
mising the conclusions we can draw from this approach is the fact that
offenders do not always provide accurate accounts of their own decision
making (Carroll and Weaver, 1986; Cromwell et al., 1991).
These studies consistently conclude that offenders are rational, even
though their rationality is bounded (Rengert and Wasilchick, 1990;
Feeney, 1986; Kube, 1988; Maguire, 1988; Biron and Ladouceur, 1991;
Cromwell et al., 1991). Burglars report looking for cues that suggest a
place is likely to yield acceptable gains with manageab',e risks, though
among burglars there is variation in the salience of specific cues (Rengert
and Wasilchick, 1990; Cromwell et al., 1991). Planning is limited, and the
more experienced the offender, the less planning that takes place (Feeney,
1986; Cromwell et al., 1991). Offenders find targets by chancing upon
them during routine, non - criminal activities, and through intentional
searches (Rengert and Wasilchick, 1990; Cromwell et al., 1991).
Thus, interviews of offenders confirm many of the studies that rely on
official data: offenders make choices about places based on cues at the
sites; and their discovery of places is in large part reliant on routine
activities that are unrelated to crimes. This suggests that places with
Crime Places in Crime Theory 19
disproportionately high predatory crime levels are likely to be easily
accessible (i.e., on major thoroughfares), have things of value that can be
taken, and emit cues that risks are low for committing crimes.
DISPLACEMENT OF CRIME AND DIFFUSION OF
BENEFITS
As our review suggests, the basic principles of rational choice and
routine activities apply fairly consistently across a series of crime place
studies. Nonetheless, the application of these principals to crime preven-
tion has often been hindered by the threat of spatial displacement (see
Reppetto, 1976). If it is the case that crime events can easily shift from
one place to another, then the collective benefits of crime prevention at
places as we have defined them become doubtful. While Sherman and
Weisburd (1995) argue that it is theoretically important to show that crime
can be discouraged at hot spots irrespective of the phenomenon of
displacement, it is surely difficult to encourage crime prevention efforts if
such displacement is complete.
One difficulty in defining the extent of displacement in place studies is
that displacement is often a secondary issue for investigators. It only
becomes important once the primary impacts of a treatment have been
established, and it seldom receives the kind of methodological concern or
focus that is accorded to the intended effects of treatment see Weisburd
and Green chapter in this volume.) Moreover, there are a myriad of forms
that displacement can take. Thus, a finding of little displacement in regard
to the movement of offenders to areas near a crime place after the
introduction of crime prevention initiatives does not mean that such
displacement has not occurred in other areas of a city, or indeed in regard
to other types of offending behavior. If displacement is spread broadly
enough, it could easily become indistinguishable from normal changes in
crime patterns (Pease, 1993).
Several authors have argued that the presumed threat of displacement
resulting from focused crime prevention efforts develops from the "dispo-
sitional" bias of traditional criminological theory (Barr and Pease, 1990;
Clarke and Weisburd, 1994; Eck, 1993; Barnes, in this volume). According
to this argument, the use of rational choice and routine activities as a
basis for the prediction of displacement effects would result in a low rate
of displacement. These authors contend that "the volume of crime is
dependent as much on the numbers of suitable targets and capable
guardians as of likely offenders. Thus, if targets decline and guardianship
20 John E. Eck and David Weisburd
increases, reductions in crime would be expected to follow without any
threat of displacement" (Clarke and Weisburd, 1994:167).
There is a growing body of evidence that suggests that displacement is
seldom total and often inconsequential or absent (Gabor, 1990; Barr and
Pease, 1990; Clarke, 1992; Eck, 1993; Hesseling, 1995). Though it is
impossible to completely reject displacement, the absence of consistent
findings of large displacement effects implies that traditional dispositional
theories may be invalid. Proponents of dispositional theories can justifi-
ably claim that most studies did not look for displacement, and when they
did their methods may have been to weak to find it (Eck, 1993). Neverthe-
less, the preponderance of evidence —both weak and strong -- presents
difficulties for many standard theories of criminality.
A number of recent studies suggest that scholars and crime prevention
experts may have to take into account a phenomenon that is the complete
opposite of displacement in assessing place -based crime prevention ef-
forts. In this sense, not only is the threat. of displacement likely to be less
than ordinarily assumed, but the crime prevention benefits of interven-
tions may be greater than anticipated. Whether termed a "multiplier effect"
(Chaiken et al., 1974), a "halo" effect (Scherdin, 1992), a "free rider" effect
(Mie'he, 1991), or a "free bonus" effect, there is growing evidence that
crime prevention efforts may actually diffuse their benefits beyond the
targets that were initially the focus of intervention. Clarke and Weisburd
(1994) coin the term "diffusion of benefits" for this phenomenon, which
they describe in part as the "spread of the beneficial influences of
intervention beyond the places which are directly targeted" (p. 169). While
spatial diffusion effects have only recently become a concern in place -
based studies, initial evidence points to the salience of this concept for
crime prevention programs that focus on place. For example, Green (1995)
finds improvement not only in the "nuisance" addresses that were targeted
by the Oakland Beat Health Unit, but also in the surrcunding housing
units. This improvement was found both in observations of the physical
characteristics of the property and in measures of official contacts with
police (see Green, in this volume). Weisburd and Green (1995) also find
evidence of diffusion in the Jersey City Drug Market Analysis Experiment.
In this case, calls for service for drug- related offenses in the experimental
areas decline in relation to control locations, not only in the hot spots
targeted but also in the two -block buffer zones surrounding them.
STAKING OUT NEW GROUND
Crime places are beginning to emerge as a central concern among both
criminologists and laypeople. While the larger worlds of community and
Crime Places in Crime Theory 21
neighborhood have been the primary focus of crime prevention theory and
research in the past, there is a growing recognition of the importance of
shifting that focus to the small worlds in which the attributes of place and
its routine activities combine to develop crime events. In this volume we
seek to advance knowledge about crime places in terms of theory, empir-
ical study, practical application and research method. The contributions
that are included provide insight not only into how crime and place
interact, but also as to how such knowledge may be translated into
concrete crime prevention efforts.
The first section provides four papers that focus on theoretical prob-
lems. In the first, Lawrence W. Sherman presents a broad outline of how
the study of crime at places can be developed and how it might influence
public policy. He begins by noting that such study demands a reorienta-
tion relative to the units of analysis used in research and theory. From
the individuals and communities that have preoccupied criminological
study we must move to more defined and discrete units of place. But in
taking such an approach, Sherman suggests that we should not abandon
the insights of traditional criminological approaches. Drawing from the
notion of criminal careers, he illustrates the salience of concepts such as
onset, specialization and desistance for understanding the development
of crime at places.
Marcus Felson examines the motivation to intervene and prevent
crimes of people at places. He focuses on the responsibility felt by three
crime controllers: capable guardians (Cohen and Felson, 1979); intimate
handlers ( Felson, 1986); and effective managers (Eck, 1994). The effec-
tiveness of each of these discouragers of crime is very much dependent on
the extent of responsibility they feel to the place that is the potential target
of crime. When people have direct and personal responsibility for a place
(for example, through ownership or assigned employment responsibility)
they are much more likely to invest efforts to prevent crime than when
they have little personal or professional interest. Unfortunately, modern
society has chosen to emphasize the latter forms of responsibility at the
expense of the former.
Drawing from the broad theoretical perspectives that inform study of
crime at place, John E. Eck develops a general model of the geography of
illicit retail marketplaces. He begins with the essential dilemma of partic-
ipants in any illicit retail market: how to make contact with a buyer or
seller and still protect oneself from the police and other offenders. He
shows that there are two distinct marketing strategies for reconciling this
dilemma. In the first, sellers and buyers use social networks to screen
potential partners and to identify new ones. In the second, the routine
activities of the area and place are used to identify illicit market areas and
22 John E. Eck and David Weisburd
places that provide both security and access in the context of everyday
social activities. Eck contrasts the operating strategies of two San Diego
drug markets and provides evidence suggesting the plausibility of his
model. He argues that the study of illicit retail marketplaces will be much
enriched if crime place researchers subject his model to repeated testing
in diverse illicit retail markets.
Because of the centrality of the threat of displacement to cr.'.ticism of
place -based crime prevention, we include Geoffrey C. Barnes' fresh ap-
proach to displacement in our discussion of theoretical problems. Barnes
begins by bringing into context the sometimes polemical tone of debates
on crime displacement, suggesting the need to focus more carefully on
how we define both displacement and the types of evidence used to
establish or refute its presence. But Barnes goes beyond the traditional
debate by suggesting that displacement, whatever its extent, may in itself
be a potent tool in crime prevention. He suggests that we can optimize
displacement in crime prevention by better identifying its form and timing.
Even if displacement is inevitable in certain circumstances, crime preven-
tion experts can channel it in directions that are likely to lead over time
to an overall reduction in the frequency and seriousness of crime.
We shift from theory to empirical study by providing three examples of
research on how place and crime interact. William Spelman begins by
examining the "criminal careers" of public places. Are some places more
crime -prone than others? Are some places particularly crime resistant
compared to others? Is "crime proneness" or crime resistance stable over
time? Spelman provides answers to these questions in the context of an
analysis of calls for service at high schools, housing projects, subway
stations and parks in Boston. His analyses provide a substantial caution
to those that have simply examined the cross - sectional concentration of
crime at places. Examining the distribution of crime events over time,
Spelman concludes that a substantial proportion of the statistical concen-
tration of crime at places is due to random and often temporary fluctua-
tions in crime events. Nonetheless, even after correcting for such
fluctuations, Spelman finds that the worst 10% of locations account for
some 30% of crime calls.
Taking the case of a specific type of location — liquor establishments —
and crime, Richard L. and Carolyn R. Block provide a careful analysis of
crime and place in Chicago. Using computer mapping as a means of
identifying liquor crime hot spots, they find surprisingly little relationship
between the density of liquor establishments and liquor - related crime.
Their work suggests the importance of going beyond the type of facility
found at a place to the routine activities that surround it. Liquor is sold
at private clubs and restaurants, as well as nightclubs and dance halls.
Crime Places in Crime Theory 23
It is available in neighborhood bars and carry-out stores. Each of these
types of locations suggests a different context of routine activities of
potential offenders, victims and guardians, leading to different rates of
crime.
Nadera S. Kevorkian also finds strong support for taking into account
the specific characteristics of places in understanding crime. In focusing
on fear of crime among the elderly in the Armenian Quarter of Jerusalem,
she provides an important crosscultural example of the importance of
understanding the crime /place connection. Comparing experiences and
attitudes of the elderly who live within the enclosed areas of the Armenian
quarter with those who live in less controlled social space, Kevorkian finds
significantly lower levels of fear and victimization. The importance of place
in crime is as important in this relatively low -crime area of Jerusalem as
it is in high -crime urban centers in the U.S.
In Section III, we shift focus from understanding the relationship
between crime and place to how knowledge of places can be applied to
crime prevention and control. Lorraine Green's article on drug abatement
in Oakland, CA provides evidence that crime prevention programs that
take a specific and place -based approach can have a significant impact
on crime. In her evaluation of project Beat Health, Green finds that official
measures of narcotics activity declined significantly as a result of the
intervention. As important, she shows that there was substantial improve-
ment in the physical characteristics of Beat Health sites. This finding
suggests that places can be substantially rehabilitated by putting pressure
on place managers. Green's paper is notable also because she uses the
movement patterns of offenders to show that diffusion of benefits and
displacement may not be mutually exclusive.
D. Kim Rossmo provides a guide for using crime place theory and
research in practical crime investigation. He focuses upon the problem of
serial violent criminals to illustrate the ways in which offender search
theory can be used in combination with computer mapping capabilities to
identify the probable home locations of violent offenders. Of particular
interest is that Rossmo begins with the spatial pattern of the crime sites
of a single offender and uses this information to locate a small area in
which the offender is likely to live or work. His use of offender search theory
and computerized mapping demonstrates the utility of environmental
criminology for very practical purposes. His work provides a solid example
of the potential ways in which crime place theory and method drawn from
the best of academic criminology can be brought to the grassroots level of
crime prevention activities.
In the final section of our volume, we include five papers on place
research methods. Our choice here was not accidental. We believe that
24 John E. Eck and David Weisburd
important advances in our understanding of crime places and improve-
ment in crime prevention efforts cannot be attained without careful
attention to the methods used to define and assess the relationship
between crime and place. Too little attention has been given to place
methods. We sought at the outset to offset this omission in crime place
studies.
The section begins with two papers that address the complex issue of
translating concepts about place to its reality. Drawing from their experi-
ences in defining high -crime places in the Minneapolis Hot Spots Patrol
Experiment (Sherman and Weisburd, 1995), Michael E. Buerger, Ellen G.
Cohn and Anthony J. Petrosino illustrate the many problems that re-
searchers and practitioners are likely to face in trying to clearly define the
boundaries of crime places. What criteria should be used? What should
be done when different data about place seem to provide contradictory
images about its definition? What are the limits of present technologies
for defining crime places, and how do these limits impact upon practi-
tioner /researcher cooperation?
Also drawing on data from the Minneapolis Hot Spots Experiment,
David Weisburd and Lorraine Green illustrate the difficulties of measuring
displacement in place studies. Pointing to problems of overlap of "displace-
ment areas" and the wash -out effect of trying to track crime changes in
high -crime neighborhoods, they suggest that hot -spot studies may often
be biased toward a finding of no displacement effects. They conclude that
real progress in the study of spatial displacement and the related phenom-
enon of diffusion cannot be made until such phenomena are made central
rather than secondary issues of study.
Dennis P. Rosenbaum and Paul J. Lavrakas also point to the
weaknesses of present data in fully conceptualizing the nature of place
and its importance in the crime equation. They suggest that survey
methods can provide an important tool for expanding present knowledge
and improving evaluation efforts. But traditional survey techniques are
not well- adapted to small -scale concepts of place, and traditional concerns
about sampling error have inhibited the use of surveys, for very small
geographic units. Rosenbaum and Lavrakas argue that new methods can
be developed that are consistent with surveying places, and that problems
of sampling error at places must be balanced against. the amount of
"nonsampling" error in crime place studies.
The final two chapters examine the role of information technologies
and computer mapping in advancing research and crime prevention
efforts in crime places. Maps play a critical role in understanding crime
places and in developing policies to prevent crime at places. J. Thomas
McEwen and Faye S. Taxman review the ways in which computer mapping
Crime Places in Crime Theory 25
of crime places has been applied by police agencies as a crime analysis
and prevention tool. Their paper illustrates the potential for improving
crime prevention efforts through basic research on places, as weL as the
developing sophistication of criminal justice agencies in their approach to
crime places.
Michael D. Maltz brings the discussion full circle. We began this
chapter by distinguishing between theories of crime events and theories
of criminality. Maltz shows how new methods of organizing data can link
the development of criminals to the places with which they came into
contact. He brings together a concern with understanding the broad social
and environmental components of crime at place with the developing
potential of computer mapping and information technologies. Maltz notes
that criminologists and crime prevention experts can now lock across
broad arrays of data in ways that were virtually impossible just a few years
ago. Maltz calls for the integration of data that would provide a more
qualitative and developed view of places and crime, one that would allow
researchers and practitioners to identify the full social, economic , physical
and criminal characteristics of crime places. We believe this understand-
ing is crucial if we are to fully integrate the study of place into crime
prevention efforts.
These 15 path - breaking papers demonstrate the variety of contribu-
tions that an understanding of places can make to criminology and crime
prevention. While these papers provide new insights into crime patterns,
they intentionally raise many questions that we cannot yet answer.
Continuing the many lines of research suggested should produce useful
results far into the future.
NOTES
1. This summary is based on a lawsuit brought before the Florida courts
in which the Crime Control Research Corporation was asked to serve as an
expert on behalf of the defendant.
2. Eck's model of illicit retail market places, in this volume suggests an
alternative explanation: that the association between crime and drug places
is less causal than spurious. The deteriorated economic conditions of an
area, combined with the presence of numerous targets arrayed along
arterial streets, give rise to both, but for different reasons. In other words,
the same conditions (though not the processes) that give rise to many forms
of crime give rise to retail drug places.
26
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Doe v. Miller, 405 F.3d 700 (2005)
25 A.L.R.6th 695
405 F.3d 700
United States Court of Appeals,
Eighth Circuit.
John DOE, I, on their own behalf and as
representatives of the class of all sex offenders in
the State of Iowa; John Doe, II, on their own
behalf and as representatives of the class of all sex
offenders in the State of Iowa; John Doe, III, on
their own behalf and as representatives of the
class of all sex offenders in the State of Iowa,
Appellees,
V.
Tom MILLER, Iowa Attorney General; Appellant.
J. Patrick White, as representatives of the class of
all county attorneys in Iowa; Michael Wolf, as
representatives of the class of all county attorneys
in Iowa, Defendants.
No. 04 -1568. Submitted: Nov. 4, 2004. 1 Filed:
April 29, 2005. Rehearing and Rehearing En Banc
Denied June 30, 2005.
Synopsis
Background: Sex offenders brought class action
challenging constitutionality of Iowa statute that
prohibited person who had committed criminal sex
offense against minor from residing within two thousand
feet of school or child care facility. The United States
District Court for the Southern District of Iowa, Robert
W. Pratt, J., granted judgment for sex offenders, 298
F.Supp.2d 844. State appealed.
Holdings: The Court of Appeals, Colloton, Circuit Judge,
held that:
ill statute did not violate due process clause of Fourteenth
Amendment on its face for lack of notice;
121 statute did not foreclose opportunity to be heard;
131 statute did not contravene principles of procedural due
process;
i41 statute did not infringe upon constitutional liberty
interest relating to matters of marriage and family in
fashion that required heightened scrutiny;
[5] statute did not interfere with constitutional right to
travel;
[6] statute did not implicate alleged right to intrastate
travel;
ill prohibition was rational way of promoting safety of
children; and
i81 statute was not retroactive criminal punishment in
violation of ex post facto clause.
Reversed and remanded.
Melloy, Circuit Judge, filed opinion concurring and
dissenting.
West Headnotes (22)
Constitutional Law
4—Classification and Registration; Restrictions
and Obligations
Mental Health
Sex Offenders
Iowa statute, that prohibited persons who had
committed criminal sex offense against minor
from residing within two thousand feet of school
or child care facility, did not violate due process
clause of Fourteenth Amendment on its face for
lack of notice, although some cities were unable
to provide sex offenders with information about
location of all schools and registered child care
facilities and it was difficult to measure
restricted areas, which were measured "as the
crow flies" from school or child care facility.
U.S.C.A. Const.Amend 14; I.C.A. § 692A.2A.
5 Cases that cite this headnote
121 Constitutional Law
Vagueness
The judicial doctrine of vagueness under the due
process clause requires that a criminal statute
define the criminal offense with sufficient
definiteness that ordinary people can understand
VYestlawNext` 2014 Thomson Reuters. No claim to original U.S. Government Works. 1
Doe v. Miller, 405 F.3d 700 (2005)
25 A.L.R.6th 695
what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory
enforcement. U.S.C.A. Const.Amend 14.
[3] Criminal Law
Certainty and Definiteness
A criminal statute is not vague on its face unless
it is impermissibly vague in all of its
applications; the possibility that an individual
might be prosecuted in a particular case in a
particular community despite his best efforts to
comply with the restriction is not a sufficient
reason to invalidate the entire statute. U.S.C.A.
Const.Amend 14.
1 Cases that cite this headnote
[41 Constitutional Law
Conduct of Police and Prosecutors in General
Due process does not require that independently
elected county attorneys enforce each criminal
statute with equal vigor, and the existence of
different priorities or prosecution decisions
among jurisdictions does not violate the
Constitution. U.S.C.A. Const.Amend 14.
[5] Constitutional Law
Classification and Registration; Restrictions
and Obligations
Mental Health
Sex Offenders
Iowa statute, that prohibited persons who had
committed criminal sex offense against minor
from residing within two thousand feet of school
or child care facility, did not foreclose
opportunity to be heard under due process clause
of Fourteenth Amendment, although statute did
not provide process for individual
determinations of dangerousness; due process
did not entitle any person legislatively classified
as sex offender to hearing to establish fact that
was not material under the state statute.
U.S.C.A. Const.Amend 14; I.C.A. § 692A.2A.
2 Cases that cite this headnote
i61 Constitutional Law
4-Classification and Registration; Restrictions
and Obligations
States are not barred by principles of procedural
due process from drawing classifications among
sex offenders and other individuals. U.S.C.A.
Const.Amend 14.
1 Cases that cite this headnote
ill Constitutional Law
Classification and Registration; Restrictions
and Obligations
Mental Health
4---Sex Offenders
Iowa statute, that prohibited persons who had
committed criminal sex offense against minor
from residing within two thousand feet of school
or child care facility, did not contravene
principles of procedural due process under
Fourteenth Amendment, since restriction applied
to all offenders who had been convicted of
certain crimes against minors, regardless of what
estimates of future dangerousness might have
been proved in individualized hearings.
U.S.C.A. Const.Amend 14; I.C.A. § 692A.2A.
12 Cases that cite this headnote
[81 Constitutional Law
Classification and Registration; Restrictions
and Obligations
Iowa statute, that prohibited persons who had
VVestlawNe+t` 2014 Thomson Reuters. No claim to original U.S. Government Works.
2
Doe v. Miller, 405 F.3d 700 (2005)
25 A.L.R.6th 695
committed criminal sex offense against minor
from residing within two thousand feet of school
or child care facility, did not infringe upon
constitutional liberty interest relating to matters
of marriage and family in fashion that required
heightened scrutiny; although statute restricted
location of sex offender's residence, statute did
not directly regulate family relationship or
prevent any family member from residing with
sex offender in residence in manner consistent
with statute. U.S.C.A. Const.Amend 14; I.C.A. §
692A.2A.
10 Cases that cite this headnote
191 Constitutional Law
4—Rights and Interests Protected; Fundamental
Rights
Substantive due process analysis must begin
with a careful description of the asserted right,
for the doctrine of judicial self - restraint requires
a court to exercise the utmost care whenever it is
asked to break new ground in that field.
U.S.C.A. Const.Amend 14.
3 Cases that cite this headnote
i101 Constitutional Law
Criminal Law
Constitutional Law
Criminal Law
Constitutional Law
Q—Classification and Registration; Restrictions
and Obligations
Mental Health
Q--Sex Offenders
Iowa statute, that prohibited persons who had
committed criminal sex offense against minor
from residing within two thousand feet of school
or child care facility, did not interfere with right
of sex offenders to travel under substantive due
process, Privileges and Immunities Clause of
Article IV and Privileges or Immunities Clause
of Fourteenth Amendment, since statute did not
impose any obstacle to sex offender's entry into
Iowa, it did not erect actual barrier to interstate
movement, and it did not treat nonresidents who
visited Iowa any differently than current
residents or discriminate against citizens of
other states who wished to establish residence in
Iowa. U.S.C.A. Const. Art. 4, § 2, cl. 2;
U.S.C.A. Const.Amend 14; I.C.A. § 692A.2A.
6 Cases that cite this headnote
Constitutional Law
Sex Offenders
Mental Health
Sex Offenders
Iowa statute, that prohibited persons who had
committed criminal sex offense against minor
from residing within two thousand feet of school
or child care facility, did not implicate alleged
right to intrastate travel, since statute did not
prevent sex offender from entering or leaving
any part of state, including areas within 2000
feet of a school or child care facility, and it did
not erect any actual barrier to intrastate
movement. I.C.A. § 692A.2A.
15 Cases that cite this headnote
[121 Constitutional Law
Personal Liberty
Mental Health
Sex Offenders
Sex offenders, who were subject to Iowa statute
that prohibited persons who had committed
criminal sex offense against minor from residing
within two thousand feet of school or child care
facility, did not show that United States
Constitution established right to "live where you
want" that would have required strict scrutiny of
state's residency restrictions, where sex
offenders did not develop any argument that
right to "live where you want" was deeply
rooted in nation's history and tradition or that
"living where you want" was implicit in concept
of ordered liberty, such that neither liberty nor
justice would exist if it were sacrificed. I.C.A. §
VYestlawNe+t` 2014 Thomson Reuters. No claim to original U.S. Government Works.
Doe v. Miller, 405 F.3d 700 (2005)
25 A.L.R.6th 695
692A.2A.
6 Cases that cite this headnote
[13] Mental Health
Sex Offenders
Iowa statute, that prohibited persons who had
committed criminal sex offense against minor
from residing within two thousand feet of school
or child care facility, was rational way of
promoting safety of children; although no
scientific study supported legislature's
conclusion that excluding sex offenders from
residing within 2000 feet of school or child care
facility was likely to enhance safety of children,
state legislature had authority to make
judgments about best means to protect health
and welfare of its citizens in area where precise
statistical data was unavailable and human
behavior was necessarily unpredictable. I.C.A. §
692A.2A.
5 Cases that cite this headnote
[14] Mental Health
,O—Sex Offenders
Iowa statute, that prohibited persons who had
committed criminal sex offense against minor
from residing within two thousand feet of school
or child care facility, rationally advanced
legitimate governmental purpose of promoting
safety of children, since convicted sex offenders
had distinguishing characteristics relevant to
interests that state had authority to implement,
Iowa General Assembly and Governor did not
act based merely on negative attitudes toward,
fear of, or bare desire to harm politically
unpopular group, and policymakers of Iowa
were institutionally equipped to set such
parameters and were entitled to employ
"common sense." I.C.A. § 692A.2A.
1 Cases that cite this headnote
[151 Criminal Law
Q---Compelling Self- Incrimination
Iowa statute, that prohibited persons who had
committed criminal sex offense against minor
from residing within two thousand feet of school
or child care facility, did not violate right against
self - incrimination under Fifth Amendment,
since statute did not require any offender to
provide any information that might have been
used in criminal case; although separate section
of Iowa Code required sex offender to register
his address with county sheriff, offenders did
not challenge constitutionality of registration
requirement or seek injunction against its
enforcement. U.S.C.A. Const.Amends. 5, 14;
I.C.A. § 692A.2A.
3 Cases that cite this headnote
[161 Constitutional Law
Sex Offenders
Mental Health
Sex Offenders
Iowa statute, that prohibited persons who had
committed criminal sex offense against minor
from residing within two thousand feet of school
or child care facility, was not retroactive
criminal punishment in violation of ex post facto
clause, since statute was designed to be
nonpunitive and regulatory, and sex offenders
could not establish by "clearest proof' that
Iowa's choice was excessive in relation to its
legitimate regulatory purpose given challenge in
determining precisely what distance was best
suited to minimize risk to children without
unnecessarily restricting sex offenders and
difficult policy judgments inherent in that
choice. U.S.C.A. Const. Art. 1, § 10, cl. 1;
I.C.A. § 692A.2A.
16 Cases that cite this headnote
[17] Constitutional Law
VVestlawNe+t` 2014 Thomson Reuters. No claim to original U.S. Government Works. 4
Doe v. Miller, 405 F.3d 700 (2005)
25 A.L.R.6th 695
6Punishment in General
States are prohibited by the ex post facto clause
from enacting laws that increase punishment for
criminal acts after they have been committed.
U.S.C.A. Const. Art. 1, § 10, cl. 1.
3 Cases that cite this headnote
[181 Constitutional Law
,---Penal Laws in General
When determining whether a state statute
violates the Ex Post Facto Clause, a law is
necessarily punitive if the legislature intended
criminal punishment; however, if the legislature
intended its law to be civil and non - punitive,
only the clearest proof that the law is
nonetheless so punitive either in purpose or
effect as to negate the state's nonpunitive intent
will transform a civil regulatory measure into a
criminal penalty. U.S.C.A. Const. Art. 1, § 10,
cl. 1.
8 Cases that cite this headnote
[19] Constitutional Law
Constitutional Prohibitions in General
On an Ex Post Facto Clause claim, where a
legislative restriction is an incident of the state's
power to protect the health and safety of its
citizens, it will be considered as evidencing an
intent to exercise that regulatory power, and not
a purpose to add to the punishment. U.S.C.A.
Const. Art. 1, § 10, cl. 1.
2 Cases that cite this headnote
[201 Constitutional Law
Purpose
Whether the regulatory scheme has a rational
connection to a nonpunitive purpose is the most
significant factor in the ex post facto analysis; a
statute is not deemed punitive simply because it
lacks a close or perfect fit with the nonpunitive
aims it seeks to advance. U.S.C.A. Const. Art. 1,
§ 10, cl. 1.
8 Cases that cite this headnote
[21] Constitutional Law
w— Power to Enact
The Ex Post Facto Clause does not preclude a
state from making reasonable categorical
judgments that conviction of specified crimes
should entail particular regulatory consequences,
and, therefore, the absence of a particularized
risk assessment does not necessarily convert a
regulatory law into a punitive measure. U.S.C.A.
Const. Art. 1, § 10, cl. 1.
[221 Constitutional Law
Constitutional Prohibitions in General
The excessiveness inquiry of ex post facto
jurisprudence is not an exercise in determining
whether the legislature has made the best choice
possible to address the problem it seeks to
remedy, but rather an inquiry into whether the
regulatory means chosen are reasonable in light
of the nonpunitive objective. U.S.C.A. Const.
Art. 1, § 10, cl. 1.
2 Cases that cite this headnote
West Codenotes
Negative Treatment Reconsidered
I.C.A. § 692A.2A.
Attorneys and Law Firms
*704 Gordon Eugene Allen, argued, Des Moines, IA
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Doe v. Miller, 405 F.3d 700 (2005)
25 A.L.R.6th 695
(Thomas J. Miller, on the brief), for appellant.
Philip B. Mears, argued, Iowa City, IA (Randall Wilson,
on the brief), for appellee.
Before RILEY, MELLOY, and COLLOTON, Circuit
Judges.
Opinion
COLLOTON, Circuit Judge.
In 2002, in an effort to protect children in Iowa from the
risk that convicted sex offenders may reoffend in
locations close to their residences, the Iowa General
Assembly passed, and the Governor of Iowa signed, a bill
that prohibits a person convicted of certain sex offenses
involving minors from residing within 2000 feet of a
school or a registered child care facility. The district court
declared the statute unconstitutional on several grounds
and enjoined the Attorney General of Iowa and the
ninety-nine county attorneys in Iowa from enforcing the
prohibition.
Because we conclude that the Constitution of the United
States does not prevent the State of Iowa from regulating
the residency *705 of sex offenders in this manner in
order to protect the health and safety of the citizens of
Iowa, we reverse the judgment of the district court. We
hold unanimously that the residency restriction is not
unconstitutional on its face. A majority of the panel
further concludes that the statute does not amount to
unconstitutional ex post facto punishment of persons who
committed offenses prior to July 1, 2002, because the
appellees have not established by the "clearest proof," as
required by Supreme Court precedent, that the punitive
effect of the statute overrides the General Assembly's
legitimate intent to enact a nonpunitive, civil regulatory
measure that protects health and safety.
I.
Iowa Senate File 2197, now codified at Iowa Code §
692A.2A, took effect on July 1, 2002. It provides that
persons who have been convicted of certain criminal
offenses against a minor, including numerous sexual
offenses involving a minor, shall not reside within 2000
feet of a school or registered child care facility. Iowa
Code § 692A.2A(1) -(2). The law does not apply to
persons who established a residence prior to July 1, 2002,
or to schools or child care facilities that are newly located
statute are punishable as aggravated misdemeanors. Iowa
Code § 692A.2A(3).'
Almost immediately after the law took effect, three
named plaintiffs -sex offenders with convictions that
predate the law's effective date -filed suit asserting that the
statute is unconstitutional on its face. The district court
certified their action as a class action, with a plaintiff
class that includes all individuals to whom Iowa Code §
692A.2A applies who are currently living in Iowa or who
wish to move to Iowa, except for any person who
currently is the subject of a prosecution under § 692A.2A.
The named plaintiffs, identified as various "John Does,"
had committed a range of sexual crimes, including
indecent exposure, "indecent liberties with a child,"
sexual exploitation of a minor, assault with intent to
commit sexual abuse, lascivious acts with a child, and
second and third degree sexual abuse, all of which
brought them within the provisions of the residency
restriction. A defendant class, including all *706 of
Iowa's county attorneys, also was certified.
During a two -day bench trial, plaintiffs presented
evidence concerning the enforcement of § 692A.2A,
including maps that had been produced by several cities
and counties identifying schools and child care facilities
and their corresponding restricted areas. After viewing
these maps and hearing testimony from a county attorney,
the district court found that the restricted areas in many
cities encompass the majority of the available housing in
the city, thus leaving only limited areas within city limits
available for sex offenders to establish a residence. In
smaller towns, a single school or child care facility can
cause all of the incorporated areas of the town to be off
limits to sex offenders. The court found that
unincorporated areas, small towns with no school or child
care facility, and rural areas remained unrestricted, but
that available housing in these areas is "not necessarily
readily available." Doe v. Miller, 298 F.Supp.2d 844, 851
(S.D.Iowa 2004) .2
Plaintiffs also presented evidence of their individual
experiences in seeking to obtain housing that complies
with the 2000 -foot restriction. Several of the plaintiffs,
including John Does III, IV, XV, and XVIII, have friends
or relatives with whom they would like to live, but whose
homes are within 2000 feet of a school or child care
facility. Many, such as John Does VII, X, XI, XII, XIII,
XIV, and XVIII, live in homes that are currently
compliant, either because they were established prior to
July 1, 2002, or because the homes are outside the
2000 -foot restricted areas. These plaintiffs, however,
testified that they would like to be able to move into a
restricted area. Still others, John Does II, VI, VIII, IX,
after July 1, 2002. Id. § 692A.2A(4)(c). Violations of the
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25 A.L.R.6th 695
XV, and XVI, are living in non - compliant residences that
they wish to maintain.
Plaintiffs testified that in many cases they had a difficult
time obtaining housing that was not within 2000 feet of a
school or child care center. John Doe VII testified that he
investigated 40 residences, but was unable to find any
housing that would not place him in violation of §
692A.2A. The evidence also showed, however, that while
the residency restriction may have exacerbated a housing
problem for the plaintiffs, not all of their difficulty was
caused by the statute. For example, John Doe II had
difficulty finding housing in part because of his credit
problems. John Doe XIV testified that the only available
compliant housing in his hometown, Waterloo, was too
expensive, so he and his wife purchased a rural home
about 45 miles away. The mother of John Doe IV made
efforts to help her son find housing, and she testified that
she was able to find two potential residences for her son,
but neither residence had any vacant units. John Doe VI
was renting an apartment in compliance with § 692A.2A,
but had to move out when the landlord decided that he did
not want to rent to a sex offender. Similarly, John Does
VIII and XI each found at least one possible compliant
apartment, but their applications were denied because of
their *707 criminal records. In apparent contrast to this
testimony from the plaintiffs, Dudley Allison, a parole
and probation officer, testified that while the statute made
it more difficult for sex offenders to find housing,
"virtually everyone" among the covered parolees and
probationers whom he supervised between July 2002 and
July 2003 was able to locate housing in compliance with
the statute. (T. Tr. at 285).
In addition to evidence regarding the burden that §
692A.2A places on sex offenders, both plaintiffs and
defendants presented expert testimony about the potential
effectiveness of a residency restriction in preventing
offenses against minors. The State presented the
testimony of Mr. Allison, a parole and probation officer
who specialized in sex offender supervision. Allison
described the process of treating sex offenders and his
efforts at preventing recidivism by identifying the triggers
for the original offense, and then imposing restrictions on
the residences or activities of the offender. According to
Allison, restrictions on the proximity of sex offenders to
schools or other facilities that might create temptation to
reoffend are one way to minimize the risk of recidivism.
In the parole and probation context, Allison also has
authority to limit offenders' activities in more specific
ways, and he testified that he attempts to remove
temptation by preventing offenders from working in jobs
where they would have contact with potential victims or
from living near parks or other areas where children
might spend time unsupervised. In addition to the limits
that he imposes on offenders under his supervision,
Allison also testified that there is "a legitimate public
safety concern" in where unsupervised sex offenders
reside. In Allison's view, reoffense is "a potential danger
forever."
The State also introduced the transcript of hearing
testimony by Dr. William McEchron, a psychologist with
a general practice that includes sex offender patients. Like
Allison, Dr. McEchron testified that there is no cure for
sex offenders and that "there are never any guarantees
that they might not reoffend." In his view, the "biggest
risk is what's going on inside the individual," but
reducing the opportunity and the temptation to reoffend is
extremely important to treatment. He explained that
because there are "very high rates of re- offense for sex
offenders who had offended against children," he believed
it would be appropriate to restrict places where sex
offenders might come into contact with children. He
thought the appropriateness of such a restriction was
"common sense," although he said there were insufficient
data to know "where to draw the marks." Dr. McEchron
also testified, however, that in his view, life -long
restrictions like § 692A.2A do not aid in the treatment
process, and could even foster negative attitudes toward
authority and depression in offenders who view the law as
unfair.
The plaintiffs offered the testimony of Dr. Luis Rosell, a
psychologist with experience in sex offender treatment.
Dr. Rosell estimated that the recidivism rate for sex
offenders is between 20 and 25 percent, and like Allison
and Dr. McEchron, stated his belief that the key to
reducing the risk of recidivism is identifying the factors
that led to the offender's original offense and then helping
the offender to deal with or avoid those factors in the
future. Dr. Rosell testified that reducing a specific sex
offender's access to children was a good idea, and that "if
you remove the opportunity, then the likelihood of
reoffense is decreased." He did not believe, however, that
"residential proximity makes that big of a difference."
Moreover, Dr. Rosell thought that a 2000 -foot limit was
"extreme." Like Dr. McEchron, he worried that the law
might be counterproductive *708 to the offender's
treatment goals by causing depression and potentially
removing the offender from his "support system."
After hearing the testimony of all three experts and of the
individual plaintiffs, the district court declared that §
692A.2A was unconstitutional on several grounds, to wit:
that it was an unconstitutional ex post facto law with
respect to offenders who committed an offense prior to
July 1, 2002; that it violated the plaintiffs' rights to avoid
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self - incrimination because, coupled with registration
requirements elsewhere in Chapter 692A, it required
offenders to report their addresses even if those addresses
were not in compliance with § 692A.2A; that it violated
procedural due process rights of the plaintiffs; and that it
violated the plaintiffs' rights under the doctrine of
substantive due process, because it infringed fundamental
rights to travel and to "privately choose how they want to
conduct their family affairs," and was not narrowly
tailored to serve a compelling state interest. Although the
district court believed the law was punitive, the court
rejected the plaintiffs' final argument that the law
imposed cruel and unusual punishment in violation of the
Eighth Amendment. Having found the statute
unconstitutional, the district court issued a permanent
injunction against enforcement. Doe v. Miller, 298
F.Supp.2d at 880.
II.
m We first address the contention that § 692A.2A violates
the rights of the covered sex offenders to due process of
law under the Fourteenth Amendment. The appellees (to
whom we will refer as "the Does ") argue that the statute
is unconstitutional because it fails to provide adequate
notice of what conduct is prohibited, and because it does
not require an individualized determination whether each
person covered by the statute is dangerous. This claim
relies on what is known as "procedural due process."
121 The Due Process Clause provides that no State shall
deprive any person of life, liberty, or property without due
process of law. The requirement of "due process" has led
to the judicial doctrine of vagueness, which requires that a
criminal statute "define the criminal offense with
sufficient definiteness that ordinary people can understand
what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement."
Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855,
75 L.Ed.2d 903 (1983).
131 141 There is no argument here that the words of the
statute are unconstitutionally vague. Rather, the Does
contend that they are deprived of notice required by the
Constitution because some cities in Iowa are unable to
provide sex offenders with information about the location
of all schools and registered child care facilities, and
because it is difficult to measure the restricted areas,
which are measured "as the crow flies" from a school or
child care facility. We disagree that these potential
problems render the statute unconstitutional on its face. A
criminal statute is not vague on its face unless it is
"impermissibly vague in all of its applications," Vill. of
Hoffman Estates v. Flipside, 455 U.S. 489, 497, 102 S.Ct.
1186, 71 L.Ed.2d 362 (1982), and the possibility that an
individual might be prosecuted in a particular case in a
particular community despite his best efforts to comply
with the restriction is not a sufficient reason to invalidate
the entire statute. A sex offender subject to prosecution
under those circumstances may seek to establish a
violation of due process through a challenge to
enforcement of the statute as applied to him in a specific
case. Nor do we believe that the potential for varied
enforcement of the restriction, *709 which was cited by
the district court, 298 F.Supp.2d at 878, justifies
invalidating the entire regulatory scheme. Due process
does not require that independently elected county
attorneys enforce each criminal statute with equal vigor,
and the existence of different priorities or prosecution
decisions among jurisdictions does not violate the
Constitution.
[51 I'l The Does also argue that § 692A.2A
unconstitutionally forecloses an "opportunity to be heard"
because the statute provides no process for individual
determinations of dangerousness. This argument
misunderstands the right to procedural due process. As
the Supreme Court recently explained in connection with
a comparable challenge to Connecticut's sex offender
registration law, "even assuming, arguendo, that [the sex
offender] has been deprived of a liberty interest, due
process does not entitle him to a hearing to establish a fact
that is not material under the [state] statute." Conn. Dep't
of Pub. Safety v. Doe, 538 U.S. 1, 7, 123 S.Ct. 1160, 155
L.Ed.2d 98 (2003). States "are not barred by principles of
`procedural due process' from drawing" classifications
among sex offenders and other individuals. Id. at 8, 123
S.Ct. 1160 (quoting Michael H. v. Gerald D., 491 U.S.
110, 120, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989)
(plurality opinion)) (emphasis in original).
171 We likewise conclude that the Iowa residency
restriction does not contravene principles of procedural
due process under the Constitution. The restriction applies
to all offenders who have been convicted of certain
crimes against minors, regardless of what estimates of
future dangerousness might be proved in individualized
hearings. Once such a legislative classification has been
drawn, additional procedures are unnecessary, because the
statute does not provide a potential exemption for
individuals who seek to prove that they are not
individually dangerous or likely to offend against
neighboring schoolchildren. Unless the Does can establish
that the substantive rule established by the legislative
classification conflicts with some provision of the
Constitution, there is no requirement that the State
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provide a process to establish an exemption from the
legislative classification. Id. at 7 -8, 123 S.Ct. 1160. Thus,
the absence of an individualized hearing in connection
with a statute that offers no exemptions does not offend
principles of procedural due process.
III.
181 The Does also assert that the residency restriction is
unconstitutional under the doctrine of substantive due
process. They rely on decisions of the Supreme Court
holding that certain liberty interests are so fundamental
that a State may not interfere with them, even with
adequate procedural due process, unless the infringement
is "narrowly tailored to serve a compelling state interest."
Reno v. Flores, 507 U.S. 292, 301 -02, 113 S.Ct. 1439,
123 L.Ed.2d 1 (1993). The Does argue that several
"fundamental rights" are infringed by Iowa's residency
restriction, including the "right to privacy and choice in
family matters," the right to travel, and "the fundamental
right to live where you want." The district court agreed
that § 692A.2A infringed upon liberty interests that
constitute fundamental rights, applied strict scrutiny to the
legislative classifications, and concluded that the statute
was unconstitutional.
The Does first invoke "the right to personal choice
regarding the family." They cite the Supreme Court's
statement in Roberts v. United States Jaycees, 468 U.S.
609, 617 -18, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), that
"certain intimate human relationships must be secured
against undue intrusion by the State because of the role
*710 of such relationships in safeguarding the individual
freedom that is central to our constitutional scheme," and
the Court's discussion of "marital privacy" in Griswold v.
Connecticut, 381 U.S. 479, 485 -86, 85 S.Ct. 1678, 14
L.Ed.2d 510 (1965). They also rely heavily on the Court's
decision in Moore v. City of East Cleveland, 431 U.S.
494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), which held
unconstitutional a zoning ordinance that defined "family"
in such a way as to prohibit a grandmother and her two
grandsons from living together in an area designated for
"single family" dwellings. A plurality of the Court in
Moore reasoned that "freedom of personal choice in
matters of marriage and family life is one of the liberties
protected by the Due Process Clause of the Fourteenth
Amendment," and concluded that the governmental
interests advanced by the city were insufficient to justify
an ordinance that "slic[ed] deeply into the family itself."
Id. at 498 -99, 97 S.Ct. 1932 (plurality opinion). Justice
Stevens concurred in the judgment on other grounds. Id.
at 513 -21, 97 S.Ct. 1932.
191 We do not believe that the residency restriction of §
692A.2A implicates any fundamental right of the Does
that would trigger strict scrutiny of the statute. In
evaluating this argument, it is important to consider the
Supreme Court's admonition that " `[s]ubstantive due
process' analysis must begin with a careful description of
the asserted right, for `[t]he doctrine of judicial
self - restraint requires us to exercise the utmost care
whenever we are asked to break new ground in this field.'
" Flores, 507 U.S. at 302, 113 S.Ct. 1439 (quoting Collins
v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061,
117 L.Ed.2d 261 (1992)). While the Court has not
directed that an asserted right be defined at the most
specific level of tradition supporting or denying the
asserted right, cf. Michael H. v. Gerald D., 491 U.S. at
127 n. 6, 109 S.Ct. 2333 (1989) (opinion of Scalia, J.), the
Does' characterization of a fundamental right to "personal
choice regarding the family" is so general that it would
trigger strict scrutiny of innumerable laws and ordinances
that influence "personal choices" made by families on a
daily basis. The Supreme Court's decision in Griswold
and the plurality opinion in Moore did recognize
unenumerated constitutional rights relating to personal
choice in matters of marriage and family life, but they
defined the recognized rights more narrowly, in terms of
"intimate relation of husband and wife," Griswold, 381
U.S. at 482, 85 S.Ct. 1678, or "intrusive regulation" of
"family living arrangements." Moore, 431 U.S. at 499, 97
S.Ct. 1932 (plurality opinion).
Unlike the precedents cited by the Does, the Iowa statute
does not operate directly on the family relationship.
Although the law restricts where a residence may be
located, nothing in the statute limits who may live with
the Does in their residences. The plurality in Moore
emphasized this distinction, observing that the impact on
family was "no mere incidental result of the ordinance,"
because "[o]n its face [the ordinance] selects certain
categories of relatives who may live together and declares
that others may not." 431 U.S. at 498 -99, 97 S.Ct. 1932
(plurality opinion). Thus, the reasoning of the Moore
plurality does not require strict scrutiny of a regulation
that has an incidental or unintended effect on the family,
Hameetman v. City of Chicago, 776 F.2d 636, 643 (7th
Cir.1985) (upholding requirement that firemen reside
within city limits), or that "affects or encourages
decisions on family matters" but does not force such
choices. Gorrie v. Bowen, 809 F.2d 508, 523 (8th
Cir.1987) (upholding regulation requiring that
applications for public assistance for dependent children
include siblings living in same *711 household).
Similarly, the Court in Griswold disclaimed authority to
determine "the wisdom, need, and propriety" of all laws
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that touch social conditions, but held unconstitutional a
state statute that "operate[d] directly on an intimate
relation of husband and wife." 381 U.S. at 482, 85 S.Ct.
1678.
While there was evidence that one adult sex offender in
Iowa would not reside with his parents as a result of the
residency restriction, that another sex offender and his
wife moved 45 miles away from their preferred location
due to the statute, and that a third sex offender could not
reside with his adult child in a restricted zone, the statute
does not directly regulate the family relationship or
prevent any family member from residing with a sex
offender in a residence that is consistent with the statute.
We therefore hold that § 692A.2A does not infringe upon
a constitutional liberty interest relating to matters of
marriage and family in a fashion that requires heightened
scrutiny.
""l The Does also assert that the residency restrictions
interfere with their constitutional right to travel. The
modern Supreme Court has recognized a right to interstate
travel in several decisions, beginning with United States
v. Guest, 383 U.S. 745, 757 -58, 86 S.Ct. 1170, 16 L.Ed.2d
239 (1966), and Shapiro v. Thompson, 394 U.S. 618,
629 -30, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). The Court
subsequently explained that the federal guarantee of
interstate travel "protects interstate travelers against two
sets of burdens: `the erection of actual barriers to
interstate movement' and `being treated differently' from
intrastate travelers." Bray v. Alexandria Women's Health
Clinic, 506 U.S. 263, 277, 113 S.Ct. 753, 122 L.Ed.2d 34
(1993) (quoting Zobel v. Williams, 457 U.S. 55, 60 n. 6,
102 S.Ct. 2309, 72 L.Ed.2d 672 (1982)). Most recently,
the Court summarized that the right to interstate travel
embraces at least three different components: "the right of
a citizen of one State to enter and to leave another State,
the right to be treated as a welcome visitor rather than an
unfriendly alien when temporarily present in the second
State, and, for those travelers who elect to become
permanent residents, the right to be treated like other
citizens of that State." Saenz v. Roe, 526 U.S. 489, 500,
119 S.Ct. 1518, 143 L.Ed.2d 689 (1999).
Although the district court, like some other courts,
considered the first component of a right to interstate
travel under the rubric of "substantive due process," the
Supreme Court has not identified the textual source of
that component. The Court has observed that the Articles
of Confederation provided that "the people of each State
shall have free ingress and regress to and from any other
State," and suggested that this right "may simply have
been `conceived from the beginning to be a necessary
concomitant of the stronger Union the Constitution
created.' " Id. at 501 & n. 3, 119 S.Ct. 1518 (quoting
Guest, 383 U.S. at 758, 86 S.Ct. 1170). The latter two
components of the right identified in Saenz arise from the
Privileges and Immunities Clause of Article IV, § 2, and
the Privileges or Immunities Clause of the Fourteenth
Amendment. Id.
The Does argue that § 692A.2A violates this right to
interstate travel by substantially limiting the ability of sex
offenders to establish residences in any town or urban
area in Iowa. They contend that the constitutional right to
travel is implicated because the Iowa law deters
previously convicted sex offenders from migrating from
other States to Iowa. The district court agreed, reasoning
that the statute "effectively bans sex offenders from
residing in large sections of Iowa's towns and cities." 298
F.Supp.2d at 874.
*712 We respectfully disagree with this analysis. The
Iowa statute imposes no obstacle to a sex offender's entry
into Iowa, and it does not erect an "actual barrier to
interstate movement." Bray, 506 U.S. at 277, 113 S.Ct.
753 (internal quotation omitted). There is "free ingress
and regress to and from" Iowa for sex offenders, and the
statute thus does not "directly impair the exercise of the
right to free interstate movement." Saenz, 526 U.S. at 501,
119 S.Ct. 1518. Nor does the Iowa statute violate
principles of equality by treating nonresidents who visit
Iowa any differently than current residents, or by
discriminating against citizens of other States who wish to
establish residence in Iowa. We think that to recognize a
fundamental right to interstate travel in a situation that
does not involve any of these circumstances would extend
the doctrine beyond the Supreme Court's pronouncements
in this area. That the statute may deter some out -of -state
residents from traveling to Iowa because the prospects for
a convenient and affordable residence are less promising
than elsewhere does not implicate a fundamental right
recognized by the Court's right to travel jurisprudence.'
I'll The Does also assert that § 692A.2A infringes upon a
fundamental constitutional right to intra state travel. The
Supreme Court has not decided whether there is a
fundamental right to intrastate travel, see Memorial Hosp.
v. Maricopa County, 415 U.S. 250, 255 -56, 94 S.Ct. 1076,
39 L.Ed.2d 306 (1974), although it observed long ago that
under the Articles of Confederation, state citizens
"possessed the fundamental right, inherent in citizens of
all free governments, peacefully to dwell within the limits
of their respective states, to move at will from place to
place therein, and to have free ingress thereto and egress
therefrom." United States v. Wheeler, 254 U.S. 281, 293,
41 S.Ct. 133, 65 L.Ed. 270 (1920). During the same era,
the Court also commented that "the right of locomotion,
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the right to remove from one place to another according to
inclination, is an attribute of personal liberty ... secured by
the 14th Amendment," Williams v. Fears, 179 U.S. 270,
274, 21 S.Ct. 128, 45 L.Ed. 186 (1900), but as the Third
Circuit observed, "[i]t is unclear whether the travel aspect
of cases like Fears can be severed from the general spirit
of Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49
L.Ed. 937 (1905), now thoroughly discredited, that was so
prominent in the substantive due process analysis of that
period." Lutz v. City of York, 899 F.2d 255, 266 (3d
Cir.1990).
Some of our sister circuits have recognized a fundamental
right to intrastate *713 travel in the context of a "drug
exclusion zone" that banned persons from an area of a
city for a period of time, Johnson v. City of Cincinnati,
310 F.3d 484, 496 -98 (6th Cir.2002), an ordinance that
outlawed "cruising" and thus limited the ability of persons
to drive on certain major public roads, Lutz, 899 F.2d at
268, and a law that created a durational residency
requirement as a condition of eligibility for public
housing. King v. New Rochelle Mun. Hous. Auth., 442
F.2d 646, 647 -48 (2d Cir.1971). The Second Circuit, for
example, reasoned that it would be "meaningless to
describe the right to travel between states as a
fundamental precept of personal liberty and not to
acknowledge a correlative constitutional right to travel
within a state." Id. at 648; see also Johnson, 310 F.3d at
497 n. 4; Lutz, 899 F.2d at 261. Other decisions have held
that there is no fundamental right to intrastate travel in the
context of a bona fide residency requirement imposed as a
condition of municipal employment. Andre v. Bd. of Trs.
of Maywood, 561 F.2d 48, 52 -53 (7th Cir.1977);
Wardwell v. Bd. of Educ., 529 F.2d 625, 627 (6th
Cir.1976); Wright v. City of Jackson, 506 F.2d 900,
901 -02 (5th Cir.1975); see also Doe v. City of Lafayette,
377 F.3d 757, 770 -71 (7th Cir.2004) (en banc) (holding
that city's ban of sex offender from all public parks did
not implicate fundamental right to intrastate travel, where
offender was "not limited in moving from place to place
within his locality to socialize with friends and family, to
participate in gainful employment or to go to the market
to buy food and clothing "); Hutchins v. District of
Columbia, 188 F.3d 531, 538 -39 (D.C.Cir.1999) (en
banc) (holding that there is no fundamental right for
juveniles to be in a public place without adult supervision
during curfew hours).
We find it unnecessary in this case to decide whether
there is a fundamental right to intrastate travel under the
Constitution, because assuming such a right is recognized,
it would not require strict scrutiny of § 692A.2A. The
district court and the Does cite the Sixth Circuit's
decision in Johnson for the proposition that there is a
fundamental right to intrastate travel. Accepting that view
for purposes of analysis, we believe that any fundamental
right to intrastate travel would likely be "correlative" to
the right to interstate travel discussed in Saenz, see
Johnson, 310 F.3d at 497 n. 4, or would consist of a "right
to travel locally through public spaces and roadways." Id.
at 498. Therefore, the Iowa statute would not implicate a
right to intrastate travel for the same reasons that it does
not implicate the right to interstate travel. The Iowa
residency restriction does not prevent a sex offender from
entering or leaving any part of the State, including areas
within 2000 feet of a school or child care facility, and it
does not erect any actual barrier to intrastate movement.
In this sense, the Iowa law is comparable to the municipal
residency requirements that have been held to implicate
no fundamental right to intrastate travel in Andre,
Wardwell and Wright, and less restrictive on freedom of
movement than the ban on access to public parks upheld
under rational basis review in Doe v. City of Lafayette. By
contrast, the decisions finding infringement of a
fundamental right to intrastate travel have involved laws
that trigger concerns not present here - interference with
free ingress to and egress from certain parts of a State
(Johnson and Lutz ) or treatment of new residents of a
locality less favorably than existing residents (King).
1121 The Does also urge that we recognize a fundamental
right "to live where you want." This ambitious
articulation of a proposed unenumerated right calls to
mind the Supreme Court's caution that we should proceed
with restraint in the area *714 of substantive due process,
because "[b]y extending constitutional protection to an
asserted right or liberty interest, we, to a great extent,
place the matter outside the arena of public debate and
legislative action." Washington v. Glucksberg, 521 U.S.
702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Some
thirty years ago, our court said "we cannot agree that the
right to choose one's place of residence is necessarily a
fundamental right," Prostrollo v. Univ. of S.D., 507 F.2d
775, 781 (8th Cir.1974), and we see no basis to conclude
that the contention has gained strength in the intervening
years. The Supreme Court recently has restated its
reluctance to "expand the concept of substantive due
process because guideposts for responsible
decisionmaking in this uncharted area are scarce and
open- ended," Glucksberg, 521 U.S. at 720, 117 S.Ct.
2258 (quoting Collins, 503 U.S. at 125, 112 S.Ct. 1061),
and the Does have not developed any argument that the
right to "live where you want" is "deeply rooted in this
Nation's history and tradition," id. at 721, 117 S.Ct. 2258
(quoting Moore, 431 U.S. at 503, 97 S.Ct. 1932 (plurality
opinion)) or "implicit in the concept of ordered liberty,"
such that "neither liberty nor justice would exist if [it]
were sacrificed." Id. (quoting Palko v. Connecticut, 302
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U.S. 319, 325, 326, 58 S.Ct. 149, 82 L.Ed. 288 (1937)).
We are thus not persuaded that the Constitution
establishes a right to "live where you want" that requires
strict scrutiny of a State's residency restrictions.
1131 Because § 692A.2A does not implicate a constitutional
liberty interest that has been elevated to the status of
"fundamental right," we review the statute to determine
whether it meets the standard of "rationally advancing
some legitimate governmental purpose." Flores, 507 U.S.
at 306, 113 S.Ct. 1439. The Does acknowledge that the
statute was designed to promote the safety of children,
and they concede that this is a legitimate state interest.
They also allow that perhaps "certain identifiable sex
offenders should not live right across the street from a
school or perhaps anywhere else where there are
children." (Appellees' Br. at 51). The Does contend,
however, that the statute is irrational because there is no
scientific study that supports the legislature's conclusion
that excluding sex offenders from residing within 2000
feet of a school or child care facility is likely to enhance
the safety of children.
We reject this contention because we think it understates
the authority of a state legislature to make judgments
about the best means to protect the health and welfare of
its citizens in an area where precise statistical data is
unavailable and human behavior is necessarily
unpredictable. Although the Does introduced one report
from the Minnesota Department of Corrections finding
"no evidence in Minnesota that residential proximity of
sex offenders to schools or parks affects reoffense," this
solitary case study -which involved only thirteen
reoffenders released from prison between 1997 and
1999 -does not make irrational the decision of the Iowa
General Assembly and the Governor of Iowa to reach a
different predictive judgment for Iowa. As the district
court observed, twelve other States have enacted some
form of residency restriction applicable to sex offenders.'
There can be *715 no doubt of a legislature's rationality
in believing that "[s]ex offenders are a serious threat in
this Nation," and that "[w]hen convicted sex offenders
reenter society, they are much more likely than any other
type of offender to be re- arrested for a new rape or sexual
assault." Conn. Dep't of Pub. Safety, 538 U.S. at 4, 123
S.Ct. 1160 (alterations in original) (quoting McKune v.
Lile, 536 U.S. 24, 32 -33, 122 S.Ct. 2017, 153 L.Ed.2d 47
(2002) (plurality opinion)). The only question remaining
is whether, in view of a rationally perceived risk, the
chosen residency restriction rationally advances the
State's interest in protecting children.
1141 We think the decision whether to set a limit on
proximity of "across the street" (as appellees suggest), or
500 feet or 3000 feet (as the Iowa Senate considered and
rejected, see S. Journal 79, 2d Sess., at 521 (Iowa 2002)),
or 2000 feet (as the Iowa General Assembly and the
Governor eventually adopted) is the sort of task for which
the elected policymaking officials of a State, and not the
federal courts, are properly suited. The legislature is
institutionally equipped to weigh the benefits and burdens
of various distances, and to reconsider its initial decision
in light of experience and data accumulated over time.
The State of Alabama, for example, originally adopted a
residency restriction of 1000 feet, but later increased the
distance to 2000 feet, Ala.Code § 15- 20- 26(a); see also
2000 Ala. Acts 728, § 1; 1999 Ala. Acts 572, § 3, while
the Minnesota legislature apparently followed the
recommendation of the State's Department of Corrections
that no blanket proximity restriction should be adopted.
(Appellee's App. at 338). Where individuals in a group,
such as convicted sex offenders, have "distinguishing
*716 characteristics relevant to interests the State has
authority to implement, the courts have been very
reluctant, as they should be in our federal system and with
our respect for the separation of powers, to closely
scrutinize legislative choices as to whether, how, and to
what extent those interests should be pursued." City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441 -42,
105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).
The record does not support a conclusion that the Iowa
General Assembly and the Governor acted based merely
on negative attitudes toward, fear of, or a bare desire to
harm a politically unpopular group. Cf. Cleburne, 473
U.S. at 448, 105 S.Ct. 3249; Dep't of Agric. v. Moreno,
413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973).
Sex offenders have a high rate of recidivism, and the
parties presented expert testimony that reducing
opportunity and temptation is important to minimizing the
risk of reoffense. Even experts in the field could not
predict with confidence whether a particular sex offender
will reoffend, whether an offender convicted of an offense
against a teenager will be among those who "cross over"
to offend against a younger child, or the degree to which
regular proximity to a place where children are located
enhances the risk of reoffense against children. One
expert in the district court opined that it is just "common
sense" that limiting the frequency of contact between sex
offenders and areas where children are located is likely to
reduce the risk of an offense. (Appellant's App. at 165).
The policymakers of Iowa are entitled to employ such
"common sense," and we are not persuaded that the
means selected to pursue the State's legitimate interest are
without rational basis.
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IV.
1151 The Does next argue that the residency restriction, "in
combination with" the sex offender registration
requirements of § 692A.2, unconstitutionally compels sex
offenders to incriminate themselves in violation of the
Fifth and Fourteenth Amendments. The district court
concluded that a sex offender who establishes residence in
a prohibited area must either register his current address,
thereby "explicitly admit[ting] the facts necessary to
prove the criminal act," or "refuse to register and be
similarly prosecuted." 298 F.Supp.2d at 879. The court
then held that § 692A.2A "unconstitutionally requires sex
offenders to provide incriminating evidence against
themselves," and enjoined enforcement of the residency
restriction on this basis as well.
We disagree that the Self- Incrimination Clause of the
Fifth Amendment renders the residency restriction of §
692A.2A unconstitutional. Our reason is straightforward:
the residency restriction does not compel a sex offender to
be a witness against himself or a witness of any kind. The
statute regulates only where the sex offender may reside;
it does not require him to provide any information that
might be used against him in a criminal case. A separate
section of the Iowa Code, § 692A.2, requires a sex
offender to register his address with the county sheriff.
The Does have not challenged the constitutionality of the
registration requirement, or sought an injunction against
its enforcement, and whatever constitutional problem may
be posed by the registration provision does not justify
invalidating the residency restriction.
None of the authorities cited by the Does supports
invalidation of a substantive rule of law because a
reporting or registration requirement allegedly compels a
person in violation of that substantive rule to incriminate
himself. The Supreme Court held in *717 Marchetti v.
United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889
(1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct.
709, 19 L.Ed.2d 906 (1968), that a gambler was
privileged under the Fifth Amendment not to register his
occupation as one in the business of accepting wagers, not
to pay the required occupational tax, and not to pay a
wagering excise tax, because these submissions would
create a real and appreciable hazard of self - incrimination
for the gambler. The Court never suggested, however, that
the Self- Incrimination Clause prevented the government
from criminalizing wagering or gambling. Similarly, in
Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23
L.Ed.2d 57 (1969), the Court's holding that a plea of
self - incrimination was a complete defense in a
prosecution for non - compliance with provisions requiring
payment of a tax on marijuana imported into the United
States did not imply that state laws prohibiting the
possession of marijuana were somehow unconstitutional.
Id. at 29, 89 S.Ct. 1532. And in Albertson v. Subversive
Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15
L.Ed.2d 165 (1965), where the Court held
unconstitutional under the Fifth Amendment a
requirement that members of the Communist Party file a
registration statement with the Attorney General, it was
never intimated that the registration requirement rendered
unconstitutional Section 4(a) of the Subversive Activities
Control Act, under which Albertson might have been
prosecuted as a result of the registration.
Even had the Does challenged the sex offender
registration statute, moreover, we believe that a
self - incrimination challenge to the registration
requirements would not be ripe for decision. Unlike
Albertson, where the petitioners had asserted the privilege
against self - incrimination on multiple occasions, the
Attorney General of the United States had rejected their
claims, and specific orders requiring the petitioners to
register had been issued, 382 U.S. at 75, 86 S.Ct. 194, the
process with respect to enforcement of the Iowa sex
offender registration statute in conjunction with the
residency restriction is far less developed. The record
does not show whether any of the plaintiffs has registered
with the county sheriff an address that is prohibited by §
692A.2A, whether any of the county attorneys or the
Attorney General would seek to use registration
information to further a criminal prosecution for violation
of the residency restriction (rather than merely as a
regulatory mechanism to bring sex offenders into
compliance with the statute),' or whether the prosecuting
authorities would recognize a refusal to register as a valid
assertion of the privilege against self - incrimination (and
thus decline to prosecute a sex offender for failing to
register a prohibited residence).
We think that under these circumstances, a
self - incrimination challenge to the registration statute
would be premature. See Communist Party v. Subversive
Activities Control Bd., 367 U.S. 1, 106 -10, 81 S.Ct. 1357,
6 L.Ed.2d 625 (1961); cf Selective Serv. Sys. v. Minn.
Pub. Interest Research Group, 468 U.S. 841, 858, 104
S.Ct. 3348, 82 L.Ed.2d 632 (1984). If and when there is a
prosecution for violation of the residency restriction in
which the prosecution makes use of a sex offender's
registration, a prosecution for failure to register a
prohibited address, or some other basis such as in
Albertson to say that the *718 dispute is ripe, then the
self - incrimination issue will be joined. It would then be
appropriate to consider such questions as whether the
registration requirement as applied falls under the rule of
cases such as Marchetti and Albertson, where the Fifth
Amendment was held to prohibit incriminating
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registration or reporting requirements directed at persons
"inherently suspect of criminal activities," Albertson, 382
U.S. at 79, 86 S.Ct. 194, or whether the public need for
information about convicted sex offenders and the
noncriminal regulatory purpose for securing the
information might permit enforcement of the requirement
consistent with the Fifth Amendment. Cf. Baltimore City
Dep't of Soc. Servs. v. Bouknight, 493 U.S. 549, 557 -59,
110 S.Ct. 900, 107 L.Ed.2d 992 (1990); California v.
Byers, 402 U.S. 424, 431 -34, 91 S.Ct. 1535, 29 L.Ed.2d 9
(1971) (plurality opinion); id. at 457 -58, 91 S.Ct. 1535
(Harlan, J., concurring in the judgment). At this point, we
conclude that the Does' self - incrimination claim is both
misdirected and premature.
V.
[161 1171 1181 A final, and narrower, challenge advanced by
the Does is that § 692A.2A is an unconstitutional ex post
facto law because it imposes retroactive punishment on
those who committed a sex offense prior to July 1, 2002.
The Ex Post Facto Clause of Article I, Section 10 of the
Constitution prohibits the States from enacting laws that
increase punishment for criminal acts after they have been
committed. See generally Calder v. Bull, 3 U.S. 386, 390,
3 Dall. 386, 1 L.Ed. 648 (1798) (Chase, J., seriatim). In
determining whether a state statute violates the Ex Post
Facto Clause by imposing such punishment, we apply the
framework outlined in Smith v. Doe, 538 U.S. 84, 92, 123
S.Ct. 1140, 155 L.Ed.2d 164 (2003), where the Supreme
Court considered an ex post facto challenge to an Alaska
statute requiring sex offenders to register. Under that
framework, we must first "ascertain whether the
legislature meant the statute to establish `civil'
proceedings." Id. (internal quotation omitted). If the
legislature intended criminal punishment, then the
legislative intent controls the inquiry and the law is
necessarily punitive. Id. If, however, the legislature
intended its law to be civil and nonpunitive, then we must
determine whether the law is nonetheless "so punitive
either in purpose or effect as to negate" the State's
nonpunitive intent. Id. (internal quotations and citations
omitted). "[O]nly the clearest proof' will transform what
the legislature has denominated a civil regulatory measure
into a criminal penalty. Id.
1191 The district court found that in passing the residency
restriction of § 692A.2A, the Iowa General Assembly
intended to create "a civil, non - punitive statutory scheme
to protect the public." 298 F.Supp.2d at 868. The Does do
not dispute this conclusion on appeal, and we agree that
the legislature's intent was not punitive. Although Iowa
Code § 692A.2A does not contain any clear statement of
purpose, the residency restriction is codified as part of
Chapter 692A, together with a registration system that the
Supreme Court of Iowa has declared to have a purpose of
"protect[ing] society" and to be a nonpunitive, regulatory
law. In Interest of S.M.M., 558 N.W.2d 405, 408 (Iowa
1997); State v. Pickens, 558 N.W.2d 396, 400 (Iowa
1997). "[W]here a legislative restriction is an incident of
the State's power to protect the health and safety of its
citizens, it will be considered as evidencing an intent to
exercise that regulatory power, and not a purpose to add
to the punishment." Smith v. Doe, 538 U.S. at 93 -94, 123
S.Ct. 1140 (quoting *719 Flemming v. Nestor; 363 U.S.
603, 616, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)) (internal
marks omitted). We believe the available evidence leads
most naturally to the inference that the restrictions in §
692A.2A are intended, like the restrictions elsewhere in
the same chapter, to protect the health and safety of Iowa
citizens. Therefore, we conclude that the purpose of the
Iowa General Assembly in passing this law was
regulatory and non - punitive.
We must next consider whether the Does have established
that the law was nonetheless so punitive in effect as to
negate the legislature's intent to create a civil,
non - punitive regulatory scheme. In this inquiry, we refer
to what the Supreme Court described in Smith v. Doe as
"useful guideposts" for determining whether a law has a
punitive effect. In analyzing the effect of the Alaska sex
offender registration law, the Court in Smith pointed to
five factors drawn from Kennedy v. Mendoza - Martinez,
372 U.S. 144, 168 -69, 83 S.Ct. 554, 9 L.Ed.2d 644
(1963), as particularly relevant: whether the law has been
regarded in our history and traditions as punishment,
whether it promotes the traditional aims of punishment,
whether it imposes an affirmative disability or restraint,
whether it has a rational connection to a nonpunitive
purpose, and whether it is excessive with respect to that
purpose. Smith v. Doe, 538 U.S. at 97, 123 S.Ct. 1140.
These factors are "neither exhaustive nor dispositive," id.
(quotation omitted), and while we consider them as an aid
to our analysis, we bear in mind that the ultimate question
always remains whether the punitive effects of the law are
so severe as to constitute the "clearest proof' that a statute
intended by the legislature to be nonpunitive and
regulatory should nonetheless be deemed to impose ex
post facto punishment.
Turning first to any historical tradition regarding
residency restrictions, the Does argue that § 692A.2A is
the effective equivalent of banishment, which has been
regarded historically as a punishment. See Smith v. Doe,
538 U.S. at 98, 123 S.Ct. 1140. Banishment has been
defined as " `punishment inflicted on criminals by
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compelling them to quit a city, place, or country for a
specified period of time, or for life,' " United States v. Ju
Toy, 198 U.S. 253, 269 -70, 25 S.Ct. 644, 49 L.Ed. 1040
(1905) (Brewer, J., dissenting) (quoting Black's Law
Dictionary ), or "expulsion from a country." Black's Law
Dictionary 154, 614 (8th ed.2004). The Supreme Court
most recently explained that banished offenders
historically could not "return to their original
community," and that the banishment of an offender
"expelled him from the community." Smith v. Doe, 538
U.S. at 98, 123 S.Ct. 1140; see also Fong Yue Ting v.
United States, 149 U.S. 698, 730, 13 S.Ct. 1016, 37 L.Ed.
905 (1893) (holding that order of deportation is "not a
banishment, in the sense in which that word is often
applied to the expulsion of a citizen from his country by
way of punishment ").
While banishment of course involves an extreme form of
residency restriction, we ultimately do not accept the
analogy between the traditional means of punishment and
the Iowa statute. Unlike banishment, § 692A.2A restricts
only where offenders may reside. It does not "expel" the
offenders from their communities or prohibit them from
accessing areas near schools or child care facilities for
employment, to conduct commercial transactions, or for
any purpose other than establishing a residence. With
respect to many offenders, the statute does not even
require a change of residence: the Iowa General Assembly
included a grandfather provision that permits sex
offenders to maintain a residence that was established
prior to July 1, 2002, even if that residence is within 2000
feet of a school or child care facility. *720 Iowa Code §
692A.2A(4)(c). The district court, moreover, found that
residency restrictions for sex offenders "are relatively
new and somewhat unique," 298 F.Supp.2d at 849 n. 4,
and as with sex offender registration laws, which also
were of "fairly recent origin," Smith v. Doe, 538 U.S. at
97, 123 S.Ct. 1140 (internal quotation omitted), this
novelty "suggests that the statute was not meant as a
punitive measure, or, at least, that it did not involve a
traditional means of punishing." Id. We thus conclude that
this law is unlike banishment in important respects, and
we do not believe it is of a type that is traditionally
punitive.
The second factor that we consider is whether the law
promotes the traditional aims of punishment - deterrence
and retribution. Smith v. Doe, 538 U.S. at 102, 123 S.Ct.
1140. The district court found that the law was both
deterrent and retributive, and thus weighed this factor in
favor of its finding that the law was punitive. We agree
with the district court that the law could have a deterrent
effect, but we do not agree that the deterrent effect
provides a strong inference that the restriction is
punishment. The primary purpose of the law is not to alter
the offender's incentive structure by demonstrating the
negative consequences that will flow from committing a
sex offense. The Iowa statute is designed to reduce the
likelihood of reoffense by limiting the offender's
temptation and reducing the opportunity to commit a new
crime. We observe, moreover, that the Supreme Court has
cautioned that this factor not be over - emphasized, for it
can "prove[ ] too much," as "[a]ny number of
governmental programs might deter crime without
imposing punishment." Id.
The statute's "retributive" effect is similarly difficult to
evaluate. For example, while the Ninth Circuit found
punishment where the length of sex offender reporting
requirements corresponded to the degree of wrongdoing
rather than the extent of the risk imposed, Doe I v. Otte,
259 F.3d 979, 990 (9th Cir.2001), rev'd sub nom. Smith v.
Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164
(2003), the Supreme Court disagreed, and instead
emphasized that the reporting requirements were
"reasonably related to the danger of recidivism" in a way
that was "consistent with the regulatory objective." Smith
v. Doe, 538 U.S. at 102, 123 S.Ct. 1140. While any
restraint or requirement imposed on those who commit
crimes is at least potentially retributive in effect, we
believe that § 692A.2A, like the registration requirement
in Smith v. Doe, is consistent with the legislature's
regulatory objective of protecting the health and safety of
children.
The next factor we consider is whether the law "imposes
an affirmative disability or restraint." Imprisonment is the
"paradigmatic" affirmative disability or restraint, Smith v.
Doe, 538 U.S. at 100, 123 S.Ct. 1140, but other restraints,
such as probation or occupational debarment, also can
impose some restriction on a person's activities. Id. at
100 -01, 123 S.Ct. 1140. While restrictive laws are not
necessarily punitive, they are more likely to be so; by
contrast, "[i]f the disability or restraint is minor and
indirect, its effects are unlikely to be punitive." Id. at 100,
123 S.Ct. 1140. For example, sex offender registration
laws, requiring only periodic reporting and updating of
personal information, do not have a punitive restraining
effect. Id. at 102, 123 S.Ct. 1140. At the same time, civil
commitment of the mentally ill, though extremely
restrictive and disabling to those who are committed, does
not necessarily impose punishment because it bears a
reasonable relationship to a "legitimate nonpunitive
objective," namely protecting the public from mentally
unstable *721 individuals. Hendricks, 521 U.S. at 363,
117 S.Ct. 2072.
Iowa Code § 692A.2A is more disabling than the sex
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offender registration law at issue in Smith v. Doe, which
had not "led to substantial occupational or housing
disadvantages for former sex offenders that would not
have otherwise occurred through the use of routine
background checks by employers and landlords." 538
U.S. at 100, 123 S.Ct. 1140. Although the Does did not
present much evidence about housing within restricted
areas that would have been available to them absent the
statute, they did show that some sex offenders would have
lived with spouses or parents who owned property in the
restricted zones, and some sex offenders were living in
residences within restricted areas that were permitted
under the statute's "grandfather" provision. The residency
restriction is certainly less disabling, however, than the
civil commitment scheme at issue in Hendricks, which
permitted complete confinement of affected persons. In
both Smith and Hendricks, the Court considered the
degree of the restraint involved in light of the legislature's
countervailing nonpunitive purpose, and the Court in
Hendricks emphasized that the imposition of an
affirmative restraint "does not inexorably lead to the
conclusion that the government has imposed
punishment." 521 U.S. at 363, 117 S.Ct. 2072 (internal
quotation omitted). Likewise here, while we agree with
the Does that § 692A.2A does impose an element of
affirmative disability or restraint, we believe this factor
ultimately points us to the importance of the next inquiry:
whether the law is rationally connected to a nonpunitive
purpose, and whether it is excessive in relation to that
purpose.
1201 This final factor - whether the regulatory scheme has a
"rational connection to a nonpunitive purpose " -is the
"most significant factor" in the ex post facto analysis.
Smith v. Doe, 538 U.S. at 102, 123 S.Ct. 1140. The
requirement of a "rational connection" is not demanding:
A "statute is not deemed punitive simply because it lacks
a close or perfect fit with the nonpunitive aims it seeks to
advance." Id. at 103, 123 S.Ct. 1140. The district court
found "no doubt" that § 692A.2A has a purpose other
than punishing sex offenders, 298 F.Supp.2d at 870, and
we agree. In light of the high risk of recidivism posed by
sex offenders, see Smith v. Doe, 538 U.S. at 103, 123
S.Ct. 1140, the legislature reasonably could conclude that
§ 692A.2A would protect society by minimizing the risk
of repeated sex offenses against minors.
12" The district court nonetheless concluded that the
statute is excessive in relation to this purpose, because the
law applies "regardless of whether a particular offender is
a danger to the public." 298 F.Supp.2d at 871. The
absence of a particularized risk assessment, however,
does not necessarily convert a regulatory law into a
punitive measure, for "[t]he Ex Post Facto Clause does
not preclude a State from making reasonable categorical
judgments that conviction of specified crimes should
entail particular regulatory consequences." Smith v. Doe,
538 U.S. at 103, 123 S.Ct. 1140. The Supreme Court over
the years has held that restrictions on several classes of
offenders are nonpunitive, despite the absence of
particularized determinations, including laws prohibiting
the practice of medicine by convicted felons, Hawker v.
New York, 170 U.S. 189, 197, 18 S.Ct. 573, 42 L.Ed.
1002 (1898), laws prohibiting convicted felons from
serving as officers or agents of a union, De Veau v.
Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 4 L.Ed.2d
1109 (1960) (plurality opinion); id. at 160 -61, 80 S.Ct.
1146 (opinion of Brennan, J.), and of course laws *722
requiring the registration of sex offenders. Smith v. Doe,
538 U.S. at 106, 123 S.Ct. 1140.
In this case, we conclude that a categorical rule is
consistent with the legislature's regulatory purpose and
not "excessive" within the meaning of the Supreme
Court's decisions. While the Does argue that the
legislature must tailor restrictions to the individual
circumstances of different sex offenders, we view this
position as inconsistent with the Supreme Court's
direction that the "excessiveness" prong of the ex post
facto analysis does not require a "close or perfect fit"
between the legislature's nonpunitive purpose and the
corresponding regulation. The evidence presented at trial
suggested that convicted sex offenders as a class were
more likely to commit sex offenses against minors than
the general population. Dr. McEchron indicated that
"there are never any guarantees that [sex offenders] won't
reoffend," (Appellant's App. at 162), and Mr. Allison
testified that "any sex offender is always going to be of
some concern forever." (T. Tr. at 279).
More specifically, in Allison's view, even an offender
who committed a crime involving an older victim, such as
statutory rape, would be of concern around a day care or
elementary school, although the concern may be reduced,
(T. Tr. at 278), and Dr. Rosell testified that while he
believed that a sex offender who committed an offense
with a 14 or 15- year -old victim was likely to stay in that
age range, there also was no way to predict whether a sex
offender would "cross over" in selecting victims from
adults to children or males to females. ( Appellee's App. at
149, 184). Dr. Rosell was less than definitive about the
degree to which sex offenders' future behavior was
predictable and avoidable; while he personally did not
believe residential proximity made "that big of a
difference," he agreed that "what works in criminal
justice is imprecise at best," and testified that "[t]here is
always a risk" of reoffense. (Appellee's App. at 193, 195,
190). In view of the higher- than - average risk of reoffense
"destlawNe+t` 2014 Thomson Reuters. No claim to original U.S. Government Works. 16
Doe v. Miller, 405 F.3d 700 (2005)
25 A.L.R.6th 695
posed by convicted sex offenders, and the imprecision
involved in predicting what measures will best prevent
recidivism, we do not believe the Does have established
that Iowa's decision to restrict all such offenders from
residing near schools and child care facilities constitutes
punishment despite the legislature's regulatory purpose.
1221 The Does also urge that the law is excessive in relation
to its regulatory purpose because there is no scientific
evidence that a 2000 -foot residency restriction is effective
at preventing sex offender recidivism. "The excessiveness
inquiry of our ex post facto jurisprudence is not an
exercise in determining whether the legislature has made
the best choice possible to address the problem it seeks to
remedy," but rather an inquiry into "whether the
regulatory means chosen are reasonable in light of the
nonpunitive objective." Smith v. Doe, 538 U.S. at 105,
123 S.Ct. 1140. In this case, there was expert testimony
that reducing the frequency of contact between sex
offenders and children is likely to reduce temptation and
opportunity, which in turn is important to reducing the
risk of reoffense. None of the witnesses was able to
articulate a precise distance that optimally balanced the
benefit of reducing risk to children with the burden of the
residency restrictions on sex offenders, and the Does'
expert acknowledged that "[t]here is nothing in the
literature that has addressed proximity." (Appellee's App.
198; accord id. at 41, 47 -48 (testimony of Dr.
McEchron)). As even Dr. Rosell admitted, we just "don't
know" that the Iowa Legislature "isn't ahead of the
curve." (Id. at 198).
*723 We believe the legislature's decision to select a
2000 -foot restriction, as opposed to the other distances
that were considered and rejected, is reasonably related to
its regulatory purpose. Given the challenge in determining
precisely what distance is best suited to minimize risk to
children without unnecessarily restricting sex offenders,
and the difficult policy judgments inherent in that choice,
we conclude that the Does have not established the
"clearest proof' that Iowa's choice is excessive in relation
to its legitimate regulatory purpose, such that a statute
designed to be nonpunitive and regulatory should be
considered retroactive criminal punishment.'
The judgment of the district court is reversed, and the
case is remanded with directions to enter judgment in
favor of the defendants.
MELLOY, Circuit Judge, concurring and dissenting.
I join in the majority's opinion, sections I through IV.
However, I dissent as to section V because I believe
section 692A.2A is an unconstitutional ex post facto law.
The U.S. Constitution prohibits states from passing ex
post facto laws. U.S. Const. art. I, § 10, cl. 1. " `Every law
that changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, when
committed,' " is an ex post facto law. Stogner v.
California, 539 U.S. 607, 612, 123 S.Ct. 2446, 156
L.Ed.2d 544 (2003) (quoting Calder v. Bull, 3 U.S. 386,
390, 3 Dall. 386, 1 L.Ed. 648 (1798)).
As set out by the majority, the fundamental question the
Court must decide is whether the residency requirement
amounts to punishment. We do so by first asking whether
the legislature intended the statute to be punitive. If the
answer is in the affirmative, that ends our inquiry, and we
find the legislation to be an ex post facto law. However, if
the legislature intended the statute to be nonpunitive, "we
must further examine whether the statutory scheme is so
punitive either in purpose or effect as to negate the State's
intention to deem it civil." Smith v. Doe, 538 U.S. 84, 92,
123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (internal
quotations and citation omitted). I agree with the majority
that the purpose of section 692A.2A is to protect the
public. This purpose is nonpunitive, so we must determine
if the statute "is so punitive either in purpose or effect as
to negate the State's intention to deem it civil." Id.
I also agree with the majority that the factors outlined in
Smith should guide our analysis. However, I part ways
with the majority as to how some of the individual factors
should be examined and as to the final outcome of the
multi - factor analysis.
1. Have measures like the residency restriction
historically been regarded as punishment?
The majority concedes that banishment has historically
been regarded as punishment, *724 but points out how the
residency restriction differs from banishment. The
majority concludes that section 692A.2A is not the type of
law that has historically been regarded as punishment. I
would find that, although section 692A.2A does not
amount to full banishment, it sufficiently resembles
banishment to make this factor weigh towards finding the
law punitive.
The district court made the following factual findings on
the availability of housing:
[S]ex offenders are completely banned from living in a
number of Iowa's small towns and cities. In the state's
major communities, offenders are relegated to living in
industrial areas, in some of the cities' most expensive
'4est[avvNext' 2014 Thomson Reuters. No claim to original U.S. Government Works. 17
Doe v. Miller, 405 F.3d 700 (2005)
25 A.L.R.6th 695
developments, or on the very outskirts of town where
available housing is limited. Although some areas are
completely unrestricted, these are either very small
towns without any services, or farmland.
In larger cities such as Des Moines and Iowa City, the
maps show that the two thousand foot circles cover
virtually the entire city area. The few areas in Des
Moines, for instance, which are not restricted, include
only industrial areas or some of the city's newest and
most expensive neighborhoods. In smaller towns that
have a school or childcare facility, the entire town is
often engulfed by the excluded area. In Johnson County
alone, the towns of Lone Tree, North Liberty, Oxford,
Shueyville, Solon, Swisher and Tiffin are wholly
restricted to sex offenders under § 692A.2A.
Unincorporated areas and towns too small to have a
school or childcare facility remain available, as does
the country, but available housing in those areas is not
necessarily readily available.
These findings are not clearly erroneous and should
therefore be upheld. See Fed.R.Civ.P. 52(a). In its
findings, the district court demonstrated how difficult it is
for sex offenders to find legal housing in many
communities in Iowa due to the housing restriction. It is
common that offenders may not return to live in the
community they lived in before incarceration, the place
where their families live, and/or the place they find work.
There are so few legal housing options that many
offenders face the choice of living in rural areas or
leaving the state. The difficulty in finding proper housing
effectively prevents offenders from living in many Iowa
communities. This effectively results in banishment from
virtually all of Iowa's cities and larger towns.
In Smith, the Supreme Court drew a distinction between
Alaska's sex offender registry and colonial punishments
such as shaming, branding, and banishment. The Court
found that the registry merely involved "dissemination of
information," whereas the colonial punishments "either
held the person up before his fellow citizens for
face -to -face shaming or expelled him from the
community." Smith, 538 U.S. at 98, 123 S.Ct. 1140
(emphasis added). It described the aim of these colonial
punishments as making "offenders suffer permanent
stigmas, which in effect cast the person out of the
community." Id. (internal quotation and citation omitted).
The residency requirement is a permanent stigma as well
as a law that effectively casts the person out of the
community. Further, Smith also described as banishment
situations in which individuals "could neither return to
their original community nor, reputation tarnished, be
admitted easily into a new one." Id. Under this phrasing,
section 692A.2A fits the description of banishment.
*725 Of course, the residency restriction does not prevent
offenders from living in every community, nor from
visiting communities in which they are not allowed to
live. In this way, the law differs from complete
banishment. However, preventing offenders from making
a home in many Iowa communities after they have served
their sentence does have substantial similarity to
banishment. To the extent that offenders are effectively
banished from their desired places of residence, I would
find this factor weighs in favor of finding section
692A.2A punitive.
2. Does the residency restriction promote traditional
aims of punishment?
The residency restriction serves a traditional aim of
punishment: deterrence. The majority attempts to
minimize the deterrent effect of the statute by arguing that
the statute does not increase the negative consequences
for an action, but merely reduces the opportunity for that
action to occur. In my view, this distinction is not
important. One major reason we use the punishments we
do, such as imprisonment, is to reduce the likelihood of
future crimes by depriving the offender of the opportunity
to commit those crimes. There is clearly a deterrent
purpose at work in section 692A.2A, thus the measure
promotes a traditional aim of punishment.
3. Does the residency restriction impose an affirmative
disability or restraint?
The majority acknowledges that the residency
requirement imposes an affirmative disability or restraint,
and I agree. It restricts offenders from living in certain
areas. Offenders that live within the restricted areas face
criminal penalties. In this way, the restraint differs greatly
from the sex offender registry in Smith. The Court in that
case pointed out that offenders were "free to change ...
residences." Smith, 538 U.S. at 100, 123 S.Ct. 1140. The
Court also noted that there was no evidence that the
measure disadvantaged the offenders in finding housing.
Id. I would find that the affirmative disability or restraint
intrinsic in the residence requirement distinguishes it from
the sex offender registry in Smith and weighs in favor of
finding the law punitive.
"JestlawNexf 2014 Thomson Reuters. No claim to original U.S. Government Works. 18
Doe v. Miller, 405 F.3d 700 (2005)
25 A.L.R.6th 695
4. Does the residency restriction have a rational
connection to a nonpunitive purpose?
I agree with the majority that section 692A.2A has a
rational connection to the nonpunitive purpose of
protecting the public. See In Interest of S.M.M., 558
N.W.2d 405, 408 (Iowa 1997).
5. Is the residency restriction excessive?
Though I believe a rational connection exists between the
residency restriction and a nonpunitive purpose, I would
find that the restriction is excessive in relation to that
purpose. The statute limits the housing choices of all
offenders identically, regardless of their type of crime,
type of victim, or risk of re- offending. The effect of the
requirement is quite dramatic: many offenders cannot live
with their families and/or cannot live in their home
communities because the whole community is a restricted
area. This leaves offenders to live in the country or in
small, prescribed areas of towns and cities that might
offer no appropriate, available housing. In addition, there
is no time limit to the restrictions.
Also, the residency restriction applies to plaintiffs who
are not the most serious sex offenders. There is no doubt a
class of offenders that is at risk to re- offend and for whom
such a restriction is reasonable. *726 However, the
restriction also applies to John Doe II, who pleaded guilty
to third degree sexual abuse for having consensual sex
with a fifteen- year -old girl when he was twenty years old.
The restriction applies to John Doe VII, who was
Footnotes
convicted of statutory rape under Kansas law. His actions
which gave rise to this conviction would not have been
criminal in Iowa. The restriction applies also to John Doe
XIV, who pleaded guilty to a serious misdemeanor charge
in 1995 after he exposed himself at a party at which a
thirteen - year -old girl was present. John Doe XIV was
nineteen at the time of his offense. The actions of these
and other plaintiffs are serious, and, at least in most cases,
illegal in this state. However, the severity of residency
restriction, the fact that it is applied to all offenders
identically, and the fact that it will be enforced for the rest
of the offenders' lives, makes the residency restriction
excessive.
In my view, four factors weigh in favor of finding the
statute punitive, while only one weighs in favor of finding
the statute nonpunitive. The analysis leads me to the
conclusion that the residency restriction is punitive.
Because the imposition of the residency requirement "
`changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, when
committed,' " Stogner, 539 U.S. at 612, 123 S.Ct. 2446
(quoting Calder, 3 U.S. at 390, 3 Dall. 386, 1 L.Ed. 648),
I would find Section 692A.2A is an unconstitutional ex
post facto law that cannot be applied to persons who
committed their offenses before the law was enacted.
Parallel Citations
25 A.L.R.6th 695
Judge Morris Sheppard Arnold, Judge Murphy, Judge Bye, Judge Melloy, and Judge Smith would grant the petition for rehearing
en banc.
The text of the statute provides as follows:
692A.2A Residency restrictions -child care facilities and schools.
1. For purposes of this section, "person" means a person who has committed a criminal offense against a minor, or an
aggravated offense, sexually violent offense, or other relevant offense that involved a minor.
2. A person shall not reside within two thousand feet of the real property comprising a public or nonpublic elementary or
secondary school or a child care facility.
3. A person who resides within two thousand feet of the real property comprising a public or nonpublic elementary or
secondary school, or a child care facility, commits an aggravated misdemeanor.
4. A person residing within two thousand feet of the real property comprising a public or nonpublic elementary or secondary
school or a child care facility does not commit a violation of this section if any of the following apply:
a. The person is required to serve a sentence at a jail, prison, juvenile facility, or other correctional institution or facility.
b. The person is subject to an order of commitment under chapter 229A.
c. The person has established a residence prior to [ ] July 1, 2002, or a school or child care facility is newly located on or
[after] July 1, 2002.
d. The person is a minor or a ward under a guardianship.
Iowa Code § 692A.2A. The term "residence" is defined as "the place where a person sleeps, which may include more than one
location, and may be mobile or transitory." Iowa Code § 692A.1(8).
"destlawNe+t` 2014 Thomson Reuters. No claim to original U.S. Government Works. 19
Doe v. Miller, 405 F.3d 700 (2005)
25 A.L.R.6th 695
The parties presented substantial evidence concerning the effect of the statute on the availability of housing for sex offenders in
Carroll County, Iowa. The district court found that 2077 of 9019 residential units in the county (23 percent) were not in restricted
areas. The Carroll County Attorney testified that 1694 of the available units were in unincorporated areas of the county, and were
"mainly farmhouses," but he noted that the trend toward larger farms has created some vacancies in farmhouses where the party
farming the land does not live in the farmhouse. Of the remaining 383 units available in the county, the district court found that
244 were located in towns without a school or child care facility. Doe v. Miller, 298 F.Supp.2d at 852.
In its analysis of the right to interstate travel, the district court also expressed concern that a sex offender might be compelled to
avoid Iowa altogether, lest he establish an unlawful residence by "unwittingly falling asleep" at a location within 2000 feet of a
school or child care facility. 298 F.Supp.2d at 875. The court stated that "[1]iteral application of the Act would result in the great
majority of the State's hotels and motels being restricted to traveling sex offenders," and that "community centers such as homeless
shelters and missions will most likely be unavailable to sex offenders because of location." Id. This led the court to conclude that
"sex offenders would appear to be able to travel to Iowa freely only so long as they do not stop." Id.
We question whether these concerns are even applicable to the plaintiffs, given that the plaintiff class was defined as those sex
offenders "currently living in Iowa or "might wish to live" in Iowa, not vacationers or cross - country travelers. Id. at 847. In any
event, the Does do not rely on these factual assertions in defending the judgment of the district court, and we do not find
evidence in the record that would support a specific finding about the proximity of hotels, motels, homeless shelters, and
missions throughout Iowa to schools and child care facilities.
See Ala.Code § 15- 20 -26(a) ( "Unless otherwise exempted by law, no adult criminal sex offender shall establish a residence or
accept employment within 2,000 feet of the property on which any school or child care facility is located. "); Ark.Code Ann. §
5- 14- 128(a) ( "It shall be unlawful for a sex offender who is required to register ... and who has been assessed as a Level 3 or Level
4 offender to reside within two thousand feet (2000') of the property on which any public or private elementary or secondary
school or daycare facility is located. "); Cal.Penal Code § 3003(g) ( "[A]n inmate who is released on parole for any violation of
[sections prohibiting lewd or lascivious acts, or continued sexual abuse of a child] shall not be placed or reside ... within one
one - quarter mile of any public or private school. "); Fla. Star. Ann. § 947.1405(7)(a)(2) ( "Any inmate convicted of [certain sexual
crimes against minors] and ... subject to conditional release supervision ... [is prohibited from] living within 1,000 feet of a school,
day care center, park, playground, designated public school bus stop or other place where children regularly congregate. ");
Ga.Code Ann. § 42- 1 -13(b) ( "No individual required to register ... shall reside within 1,000 feet of any child care facility, school,
or area where minors congregate. "); 720 Ill. Comp. Star. § 5/11- 9.3(b -5) ( "It is unlawful for a child sex offender to knowingly
reside within 500 feet of a school building ... "); Ky.Rev.Stat. Ann. § 17.495 ( "No registrant ... who is placed on probation, parole,
or any form of supervised release, shall reside within one thousand (1,000) feet of a high school, middle school, elementary school,
preschool, or licensed day care facility. "); La.Rev.Stat. § 14:91.1(A)(2) ( "Unlawful presence of a sexually violent predator is ... the
physical residing of a sexually violent predator within one thousand feet of any public or private, elementary or secondary school, a
day care facility, playground, public or private youth center, public swimming pool, or free standing video arcade facility. "); Ohio
Rev.Code Ann. § 2950.031(A) ( "No person who has been convicted of ... either a sexually oriented offense that is not a
registration- exempt sexually oriented offense or a child- victim oriented offense shall establish a residence or occupy residential
premises within one thousand feet of any school premises."); Okl. Stat. tit. 57, § 590 ( "It is unlawful for any person registered
pursuant to the Oklahoma Sex Offenders Registration Act to reside within a two thousand -foot radius of any public or private
school site or educational institution. "); Or.Rev.Stat. § 144.642(1)(a) (Rules for post - prison supervision or parole "shall include ...a
general prohibition against allowing a sex offender to reside near locations where children are the primary occupants or users. ");
Tenn.Code Ann. § 40- 39- 211(a) ( "No sexual offender, ... or violent sexual offender, ... shall knowingly reside or work within one
thousand feet (1,000') of the property on which any public school, private or parochial school, licensed day care center, or any
other child care facility is located. ").
There is evidence in the record that some Iowa law enforcement authorities, rather than immediately file charges against an
offender found to be residing in a restricted zone, have withheld charges while the offender sought housing in an unrestricted area.
(T. Tr. at 229).
In view of our conclusion that the statute is not punitive, it follows that the law is not a "cruel and unusual punishment" in violation
of the Eighth Amendment. See Smith v. Doe, 538 U.S. at 97, 123 S.Ct. 1140 (explaining that factors used in determining whether
law is punishment for ex post facto purposes "have their earlier origins in cases under the Sixth and Eighth Amendments "); Trop v.
Dulles, 356 U.S. 86, 94 -99, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion). Even assuming that § 692A.2A were punitive,
we would agree with the district court that the law is neither barbaric nor grossly disproportionate to the offenses committed by the
Does. We therefore reject the Eighth Amendment argument urged by the appellees as an alternative ground for affirming the
district court.
"destlawNe+t` 2014 Thomson Reuters. No claim to original U.S. Government Works. 20
Doe v. Miller, 405 F.3d 700 (2005)
25 A.L.R.6th 695
End of Document
2014 Thomson Reuters. No claim to original U.S. Government Works.
"destlaWNe+it` 2014 Thomson Reuters. No claim to original U.S. Government Works. 21
Agenda No. 3
CITY COUNCIL MEMORANDUM
City Council Meeting: June 20, 2014
Department: Police Department
Subject: Ordinance No. 14 -M -24 -
Discharge of Guns Ordinance
(First Reading)
BACKGROUND
The City of Schertz (the "City ") requests authorization to amend Chapter 50 of the City's Code
of Ordinances to provide for a more enforceable ordinance and to allow the discharge of firearms
on a city owned or leased property by public safety officers or individuals under the supervision
of public safety officers for training, qualification and other related activities.
The same amendment would remove some of the more restrictive prohibitions on specific
conduct that occurs by citizens on and entirely within their own private property such as firing a
toy gun or casting a rock.
Goal
The City seeks to enhance the training available to its law enforcement officers by
providing for local firearms training. This will reduce travel time to ranges
located outside the city and will provide enhanced scheduling of training. The
enhanced scheduling will reduce overtime spent in such activities.
In addition, the amended ordinance would allow for a less restrictive, more
enforceable ordinance as it relates to conduct occurring on private property.
Community Benefit
The benefit of this ordinance is to create a safer community by enhanced firearms
training to our law enforcement officers. Reduce travel time and expense of
having to utilize training on facilities located outside of our city.
The amended ordinance would demonstrate a more reasonable approach to certain
specific conduct that occurs on private property.
Summary of Recommended Action
Recommend approval of first reading of ordinance amending chapter 50 of the City Code
of Ordinances to make it lawful for a public safety officer or an individual under the
supervision of a public safety officer to discharge a firearm on property owned or leased
by the City for the purpose of firearms training.
50631771.1
FISCAL IMPACT
None.
RECOMMENDATION
Recommend approval of first reading of Ordinance No. 14 -M -24
ATTACHMENT(S)
Ordinance No. 14 -M -24
50631771.1
ORDINANCE NO. 14 -M -24
AN ORDINANCE AMENDING THE CITY'S CODE OF ORDINANCES
CHAPTER 50, ARTICLE IV REGULATING THE DISCHARGE OF
GUNS; PROVIDING FOR CERTAIN EXCEPTIONS; REPEALING ALL
ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT WITH
THIS ORDINANCE; AND PROVIDING AN EFFECTIVE DATE
WHEREAS, Section 50 -124 of the City's Code of Ordinances currently prohibits the
discharge of a gun within the certain portions of the City limits; and
WHEREAS, Section 50 -125 of the City's Code of Ordinances currently provides certain
exceptions to the prohibitions found in Section 50 -124; and
WHEREAS, City Staff has reviewed the current regulations and hereby recommends
certain additional exceptions to the prohibition on the discharge of a gun be provided for in
Section 50 -125; and
WHEREAS, City Staff further recommends that Section 50 -124 be updated for
consistency with its purpose; and
WHEREAS, the City Council of the City of Schertz hereby finds and determines that the
recommendations of City Staff should be accepted; and
WHEREAS, City Council of the City of Schertz hereby finds and determines that the
exceptions to the prohibition on the discharge of a gun and the additional amendments provided
for herein are in the best interest of the health, safety, and welfare of the citizens of the City of
Schertz.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF SCHERTZ, TEXAS:
Section 1. That Chapter 50, Article IV Guns, BB Guns, Pellet Guns be amended as
follows:
Sec. 50 -124. Unlawful to fire.
(a) It shall be unlawful to willfully or intentionally shoot a gun within the limits of
the city, except as provided in section 50 -125. it shall also be unlawful to *h,.ow stones
other- missiles, or- to shoot of to disehar-ge any stones or- other- missiles with Of ffem
slingshot of a*y kind. A person asserting an exception to prosecution under this section
shall be required to prove same as a defense under the provisions of the Texas Penal
Code and a Code of Criminal Procedure.
(b) A gun shall include specifically, but not exclusively, any shotgun, pistol, rifle, Rif
r'° BB gun, bow and affew and other- meehan ;r,,, that discharges or ejects any bullet,
buckshot, or any other metallic object of any size by force of combustion, m°„i anism, e
(c) It shall be unlawful to willfully or intentionally discharge an airgun, BB ug n, toy
gun, slingshot, crossbow, bow and arrow, or cast a stone or rock by a citizen not on his or
her own property or with the permission of the property owner, or if on his or her own
property or with the permission of the property owner, in a manner in which the projectile
enters into or onto another person's property.
A violation of this section shall constitute a misdemeanor and upon conviction
shall be punishable by a fine pursuant to the general penalty set forth in this Code. In
addition, the city may also direct the city attorney to bring a civil action in a court of
competent jurisdiction to enforce the provisions of this section.
Sec. 50 -125. Exception.
Excepted from section 50 -124 are:
(5) By any Public Safety Officer or by an individual under the supervision of Public
Safety Officer on property owned or leased by the Ci . for purposes of gun training.
Section 2. The recitals contained in the preamble hereof are hereby found to be true, and
such recitals are hereby made a part of this Ordinance for all purposes and are adopted as a part
of the judgment and findings of the Council.
Section 3. All ordinances and codes, or parts thereof, which are in conflict or
inconsistent with any provision of this Ordinance are hereby repealed to the extent of such
conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters
resolved herein.
Section 4. This Ordinance shall be construed and enforced in accordance with the laws
of the State of Texas and the United States of America.
Section 5. If any provision of this Ordinance or the application thereof to any person or
circumstance shall be held to be invalid, the remainder of this Ordinance and the application of
such provision to other persons and circumstances shall nevertheless be valid, and the City
hereby declares that this Ordinance would have been enacted without such invalid provision.
Section 6. It is officially found, determined, and declared that the meeting at which this
Ordinance is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Ordinance, was
given, all as required by Chapter 551, as amended, Texas Government Code.
Section 7. This Ordinance shall be effective upon the date of final adoption hereof and
any publication required by law.
50310827.1 - 2 -
PASSED ON FIRST READING, the day of , 2012.
PASSED, APPROVED and ADOPTED ON SECOND READING, the day of
.2012.
CITY OF SCHERTZ, TEXAS
Mayor
ATTEST:
City Secretary
(CITY SEAL)
50310827.1 - 3 -
Agenda No. 4
CITY COUNCIL MEMORANDUM
City Council Meeting: May 20, 2014
Department:
Subject:
BACKGROUND
Development Services
Ordinance No. 14 -5 -25 — Conduct a Public
Hearing and consideration and/or action on a
request to rezone approximately 0.468 acres
of land from General Business (GB) to
Residential /Agriculture (RA). The property
is more specifically described as a portion of
the Stacy B. Lewis Survey No. 317, Abstract
No. 443, and the Antonio Zamora Survey
No. 36, Abstract No. 82, City of Schertz,
Bexar County, Texas, generally located on
Boenig Drive approximately 170 feet west
of the street Laura Heights. (First Reading)
The applicant is proposing to rezone approximately 0.468 acres of land in The Reserve at Schertz
II Subdivision from General Business District (GB) to Residential Agriculture District (RA). The
subject property is currently undeveloped and is located on Boenig Drive approximate 165 feet
west of the street Laura Heights. The property is located in the Air Installation Compatibility
Zone (AICUZ) — Accidental Potential Zone I (APZ 1) and is currently undeveloped.
The public hearing notice was published in "The Daily Commercial Recorder" on May 1, 2014
and the "Herald" on May 7, 2014. Six (6) public hearing notices were mailed to surrounding
property owners within two hundred (200) feet of the subject property on April 11, 2014. Staff
received one (1) response in opposed of the request.
Goal
Triple H Development is requesting to rezone the approximate 0.468 acres tract of land to from
General Business (GB) to Residential Agriculture (RA) to include in the adjacent residential
subdivision The Reserve at Schertz II.
City Council Memorandum
Page 2
Community Benefit
It is the City's desire to promote safe, orderly, efficient development and ensure compliance with
the City's vision of future growth.
Summary of Recommended Action
Staff reviewed the request for conformance with the Comprehensive Land Plan and Future Land
Use Plan (FLUP). The FLUP designates the subject property as the Air Installation Compatible
Use Zone ( AICUZ) which is defined in the Comprehensive Land Plan as areas of mixed use
limited to activities permitted in accordance with AICUZ recommendations. Uses are generally
low intensity and designed to enhance the concepts of open space, including agriculture,
recreation, water features and clustered, low density housing.
• Comprehensive Plan Goals and Objectives: The proposed rezoning request is generally
in conformance with the goals and objectives of the Comprehensive Plan. In particular,
the proposed zone change is consistent with the proposed uses in the area of Randolph
Air Force Base.
• Impact of Infrastructure: The proposed zoning should have a minimal impact on the
existing and planned water and wastewater systems.
• Impact of Public Facilities /Services: The proposed rezoning request should have minimal
impact on public services, such as schools, fire, police, parks and sanitation services.
• Compatibility with Existing and Potential Adjacent Land Uses: The subject property is
currently surrounded by undeveloped land, single family residential and agriculture uses
which is currently consistent with the Comprehensive Land Use Plan.
• Compatibility with the Air Installation Compatibility Use Zone Studer The subject
property is located within the Accidental Potential Zone I (APZ1). Using the AICUZ
study dated April 2008 staff has determined that the change in the zoning will support the
study and protect Randolph Air Force Base operations from incompatible land uses.
The applicant has indicated that the primary reason for the proposed rezoning is to include the
0.468 acre tract of land into the adjacent residential lot to the south located in The Reserve at
Schertz II Subdivision.
FISCAL IMPACT
None
f.7XQ[13 05 luiDI0117_r1 to] 01
The Planning and Zoning Commission conducted the public hearing on May 14, 2014 and
offered a recommendation of approval by a unanimous vote.
City Council Memorandum
Page 3
Staff recommends approval of the zoning request based its compatibility with the adjacent land
uses; compliance with the Comprehensive Land Plan and the AICUZ study.
ATTACHMENT
Ordinance No. 14 -S -25
ORDINANCE NO. 14 -S -25
AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
AMENDING THE OFFICIAL ZONING MAP BY ZONING APPROXIMATELY 0.468
ACRES OF LAND FROM GENERAL BUSINESS (GB) TO
RESIDENTIAL /AGRICULTURE (RA).
WHEREAS, An application to rezone approximately 0.468 acres of land described in the
Exhibit A and Exhibit B attached herein (herein, the "Property ") has been filed with the City;
and
WHEREAS, the City's Unified Development Code Section 21.5.4.D. provides for certain
conditions to be considered by the Planning and Zoning Commission in making
recommendations to City Council and by City Council in considering final action on a requested
zone change (the "Conditions "); and
WHEREAS, on May 14, 2014, the Planning and Zoning Commission conducted a public
hearing and, after considering the Conditions, herby makes a recommendation of approval of the
rezoning; and
WHEREAS, on May 20, 2014 the City Council conducted a public hearing and after
considering the Conditions and recommendation by the Planning and Zoning Commission,
determined that the requested zoning be approved as provided for herein.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS:
THAT:
Section 1. The Property as shown and more particularly described in the attached Exhibit
A and Exhibit B, is hereby zoned Single Family Residential /Agricultural District (RA).
Section 2. The Official Zoning Map of the City of Schertz, described and referred to in
Article 2 of the Unified Development Code, shall be revised to reflect the above amendment.
Section 3. The recitals contained in the preamble hereof are hereby found to be true, and
such recitals are hereby made a part of this Ordinance for all purposes and are adopted as a part
of the judgment and findings of the Council.
Section 4. All ordinances and codes, or parts thereof, which are in conflict or
inconsistent with any provision of this Ordinance are hereby repealed to the extent of such
conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters
resolved herein.
Section 5. This Ordinance shall be construed and enforced in accordance with the laws
of the State of Texas and the United States of America.
Section 6. If any provision of this Ordinance or the application thereof to any person or
circumstance shall be held to be invalid, the remainder of this Ordinance and the application of
such provision to other persons and circumstances shall nevertheless be valid, and the City
hereby declares that this Ordinance would have been enacted without such invalid provision.
Section 7. It is officially found, determined, and declared that the meeting at which this
Ordinance is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Ordinance, was
given, all as required by Chapter 551, as amended, Texas Government Code.
Section 8. This Ordinance shall be effective upon the date of final adoption hereof and
any publication required by law.
Section 9. This Ordinance shall be cumulative of all other ordinances of the City of
Schertz, and this Ordinance shall not operate to repeal or affect any other ordinances of the City
of Schertz except insofar as the provisions thereof might be inconsistent or in conflict with the
provisions of this Ordinance, in which event such conflicting provisions, if any, are hereby
repealed.
Approved on first reading the 20nd day of May, 2014.
PASSED, APPROVED AND ADOPTED on final reading the 27th day of May, 2014.
Michael R. Carpenter, Mayor
ATTEST:
Brenda Dennis, City Secretary
(SEAL OF THE CITY)
November It, 2013
Exhibit A
"The Property"
FIELD NOTES
"ZONING EXHIBIT"
0.468 ACRE OUT OF
104.684 ACRES, VOL. 7801, PG. 451
BEXAR COUNTY, TEXAS
E3 R I ON E S
Y' GULTL . s GP,*VqCzRNQ L U
Being a 0.468 acre tract out of the most northerly corner of a 104.684 acre tract out of the Stacy B. Lewis
Survey No. 317, Abstract 443, and the Antonia Zamora Survey No. 36, Abstract No. 82, Bexar County,
Texas and being more particularly described as follows:
Beginning at the most southerly earner of Lot 17, Block 4 and as recorded in Volume 9593, page 161,
deed and plat records of Bexar County;
Thence; S 59 °- 28; -44" W, a total distance of 268.38 feet to a point for a comer of (his herein described
tract and being on the south right -of -way of Boenig Drive;
Thence; contir_uing along the south right -of -way of Boenig Drive, N 30 °-00' -57" E, a total distance of
309.05 feet to a point for a comer of the herein described tract;
Thence; S 30'-15'-24" E, a total distance of 152,01 feet to the point of beginning and containing 0.468
acres.
Page 1 of 1
Borg " zuna, W, R.P.L.
/Registered Public Land Surveyor
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502d Civil Engineer Squadron
1555 Gott St
JBSA Lackland TX 78236 -5645
DEPARTMENT OF THE AIR FORCE
602D AIR BASE WING
JOINT BASE SAN ANTONIO
Ms. Lesa Wood
Senior Planner
Development Services Planning Department
1400 Schertz Parkway
Schertz, TX 78154
Dear Ms. Wood
My staff reviewed your 17 December 2013 letter of notification sent to the City of Schertz
requesting a zone change to a parcel of land that is located within the Accident Potential Zone I (APZ 1).
Using the Randolph Air Installation Compatible Use Zone (AICUZ) study dated April 2008, the Standard
Land Use Coding Manual (SLUCM), Air Force Handbook 32 -7084, and Unified Facilities Criteria (UFC)
3- 260 -01, the following determination was made:
Based on the information presented in your letter, my staff confirms the proposed zoning change is
for a 0.468± acre tract of land located just within APZI and is adjacent to and intended to be used as part
of a larger Single Family Residential /Agriculture District (RA) lot.
Rezoning the ,0468 ± acre parcel from General Business to correspond with the adjacent RA zoned
lot creates a contiguous parcel of residential land. This parcel will enlarge the residents' back yard.
Therefore, Joint Base San Antonio (JBSA)- Randolph does not object to the requested zoning change.
We grant approval of this proposed zoning change as it meets the two objectives of the AICUZ program,
"to assist local officials in protecting and promoting the public health, safety, and welfare by promoting
compatible development within the AICUZ area of influence" and " to protect Air Force operational
capability fi•om the effects of land use which are incompatible with aircraft operations."
Thank you for your proactive support and cooperation your City continues to exhibit when dealing
with developments adjacent to JBSA- Randolph and specifically your actions to ensure compatible land
use related to the AICUZ. Your support allows our existing missions to continue and helps solidify our
longevity as your neighbor. If you have any questions, my point of contact is Ms. Maureen Goodrich at
210- 808 -9629 or e-mail maureen.e.goodrich.civna.mail.mil.
JAMES H. GRAHAM
Deputy, Joint Base Civil Engineer
RECEIVED
APR 0:2014
BY:
SSCHIERZTZ
December 17, 2013
Randolph Air Force Base
Chief Community Planner
Attn: Richard Cole
1651 5th Street West
Randolph AFB, Texas 78150
Dear Mr. Cole:
COMMUNITY
SERVICE
OPPORTUNITY
DEVELOPMENT SERVICES
PLANNING DEPARTMENT
via email: richard.cole.12(o)us.af.mil
This letter is to inform you that a zone change request has been submitted to the City of
Schertz that is located within the Accident Potential Zone I (APZI). In accordance with
the City of Schertz Unified Development Code (UDC) a request for zone change located
within the Air Installation Compatible Use Zone District (AICUZ) requires written
notification to Randolph Air Force Base (RAFB).
Current Propertv Owner:
Harry Hausman
15720 Bandera Road, Suite 103
Helotes, Texas 78023
Phone: 210 - 695 -5490
Request: ZC2013 -014 The Reserve at Schertz II Subdivision - a request to rezone
approximately 0.468± acres of land from General Business District (GB) to Single Family
Residential /Agriculture District (RA).
Legal Description and General Location: The property is more specifically described
as 0.468 acre tract of land out of a 104.684 tract of land out of the Stacy B. Lewis Survey
No. 317, Abstract No. 443, and the Antonio Zamora Survey No. 36, Abstract No. 82,
Recorded in Volume 16347, Page 1353, Special Warranty Deed, Bexar County, Texas,
generally located on Boenig Drive approximately 170 feet west of Laura Heights.
Proposed Development: The applicant has submitted a request for zone change to
allow the 0.468 acres to be included into the adjacent Single Family
Residential /Agriculture District (RA). The subdivision will have 121 Single Family
Residential lots with a minimum half -acre lots as dictated by the zoning district.
The Standard Land Use Coding Manual (SLUCM) for the proposed use is 11.11 —
Single units; detached
Single Family Residential /Agriculture District (RA): The UDC defines this zoning
district as follows: Intended to provide for areas in which agricultural land may be held in
1400 Schertz Parkway Schertz, Texas 78154 210.619.1000
such use for as long as is practical and reasonable. Residences in this District are
intended to be on a minimum lot size of 21,780 square feet (one -half acre). This District
is suitable for areas where development is premature due to lack of utilities, capacity or
service, and for areas that are unsuitable for development because of physical restraints
or potential health or safety hazards.
UDC Article 21.5.9 - Special Districts requires review and consideration by RAFB:
Recommend approval; no comments
Recommend approval; with comments
Recommend disapproval; with comments
Name of RAFB representative
Signature Date
Please return your comments by no later than January 8. 2014 so that staff may inform
the applicant and finalize the zone change process.
If you have any questions or concerns, please feel free to contact me at 210 - 619 -1785
or the Planning and Zoning Department at (210) 619 -1780.
Sincerely,
in^rv � Loa-'-d%
Lesa Wood
Senior Planner
Enclosures: Aerial Map of subject property
Zoning Exhibit
Graphic of lot
Permissible Uses — UDC, Sec. 21.5.8
Special Districts — UDC, Sec. 21.5.9
1400 Schertz Parkway Schertz, Texas 78154 k 210.619.1000 * schertzcom
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SAN ANTONIO. T% ]8289 (218) 8281432 fax
TBPE FIRM REG. NO. F -NG8
Agenda No. 5
CITY COUNCIL MEMORANDUM
City Council Meeting: May 20, 2014
Department: Development Services
Subject: Ordinance No. 14 -S -26 — Conduct a Public
Hearing and consideration and/or action on a
request to rezone approximately 3 acres of
land in the Verde Enterprise Business Park
Planned Unit Development (PUD)
Ordinance 07 -S -14A to Planned
Development District (PDD). The property
is specifically Unit 1 of the Verde Enterprise
Business Park and generally located on the
corner of Interstate Highway 35 and Mid -
Cities in the City of Schertz, Guadalupe
County, Texas. (First Reading)
BACKGROUND
The applicant is proposing to rezone approximately 3 acres of land in the Verde Enterprise
Business Park Planned Unit Development (PUD) Ordinance 07-S- 14A to Planned Development
District (PDD). The Verde Enterprise Business Park PUD Ordinance 07 -S -14A was approved
by City Council on March 6, 2007 to allow a mix of commercial and industrial uses. The request
is to develop Unit 1 on the Business Park in accordance with the existing PUD Ordinance 07 -S-
14A with a modification to the building setback adjacent to property located outside that is
commercial or industrial.
The public hearing notice was published in "The Daily Commercial Recorder" on May 1, 2014
and the "Herald" on May 7, 2014. Six (6) public hearing notices were mailed to surrounding
property owners within two hundred (200) feet of the subject property on April 11, 2014. Staff
received one (1) response in favor of the request.
Goal
Verde South Partners, LDT. is requesting to rezone the approximate 3 acres tract of land to
modify the development standards to change the setbacks for buildings from a perimeter lot line
outside of the Planned Development District from a minimum of 50' to a minimum of 20'.
City Council Memorandum
Page 2
Community Benefit
It is the City's desire to promote safe, orderly, efficient development and ensure compliance with
the City's vision of future growth.
Summary of Recommended Action
The subject property is an approximately 3 acre tract of land that is located at the intersection of
Mid - Cities and the IH 35 Frontage road and is currently undeveloped. The applicant is
requesting to rezone the subject property to modify the development standards to change the
setbacks for buildings from a perimeter lot line or property outside of the PUD from fifty foot
(50') to twenty foot (20').
The subject property shall develop in accordance with the regulations of Ordinance 07 -S -14A
except as follows:
IV. AMENDMENTS TO COMMERCIAL AREA DEVLEPMENT STANDARDS
A.1 Building Setback
All buildings shall have a setback of at least twenty feet (20') from a perimeter lot
line of property outside of the PUD. [7.9A(c)].
Staff has reviewed the request and is of the opinion that that proposed zoning request will be
compatible with the surrounding adjacent land uses. It is unclear why the PUD was written to
have a greater setback adjacent to commercial or industrial uses when the current zoning of
General Business (GB) for the adjacent property located outside the PDD has a minimum side
yard setback of zero (0).
FISCAL IMPACT
None
RECOMMENDATION
The Planning and Zoning Commission conducted the public hearing on April 23, 2014 and
offered a recommendation of approval by a unanimous vote.
Staff recommends approval of the zoning request.
ATTACHMENT
Ordinance No. 14 -S -26
ORDINANCE NO. 14 -S -26
AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
AMENDING THE OFFICIAL ZONING MAP BY ZONING APPROXIMATELY 2.812
ACRES OF LAND FROM PLANNED UNIT DEVELOPMENT TO PLANNED
DEVELOPMENT DISTRICT (PDD).
WHEREAS, an application to rezone approximately 2.812 acres of land described in the Exhibit
A and Exhibit B attached herein (herein, the "Property") has been filed with the City; and
WHEREAS, the City's Unified Development Code Section 21.5.4.D. provides for certain
conditions to be considered by the Planning and Zoning Commission in making
recommendations to City Council and by City Council in considering final action on a requested
zone change (the "Conditions "); and
WHEREAS, on April 23, 2014, the Planning and Zoning Commission conducted a public
hearing and, after considering the Conditions, herby makes a recommendation of approval of the
rezoning according to the development standards set forth in Exhibit C attached herein (the
"Development Standards "); and
WHEREAS, on May 20, 2014 the City Council conducted a public hearing and after
considering the Conditions and recommendation by the Planning and Zoning Commission,
determined that the requested zoning be approved as provided for herein.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS:
THAT:
Section 1. The Property as shown and more particularly described in the attached Exhibit
A and Exhibit B, is hereby zoned Planned Development District (PDD).
Section 2. The Official Zoning Map of the City of Schertz, described and referred to in
Article 2 of the Unified Development Code, shall be revised to reflect the above amendment.
Section 3. The recitals contained in the preamble hereof are hereby found to be true, and
such recitals are hereby made a part of this Ordinance for all purposes and are adopted as a part
of the judgment and findings of the Council.
Section 4. All ordinances and codes, or parts thereof, which are in conflict or
inconsistent with any provision of this Ordinance are hereby repealed to the extent of such
conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters
resolved herein.
Section 5. This Ordinance shall be construed and enforced in accordance with the laws
of the State of Texas and the United States of America.
Section 6. If any provision of this Ordinance or the application thereof to any person or
circumstance shall be held to be invalid, the remainder of this Ordinance and the application of
such provision to other persons and circumstances shall nevertheless be valid, and the City
hereby declares that this Ordinance would have been enacted without such invalid provision.
Section 7. It is officially found, determined, and declared that the meeting at which this
Ordinance is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Ordinance, was
given, all as required by Chapter 551, as amended, Texas Government Code.
Section 8. This Ordinance shall be effective upon the date of final adoption hereof and
any publication required by law.
Section 9. This Ordinance shall be cumulative of all other ordinances of the City of
Schertz, and this Ordinance shall not operate to repeal or affect any other ordinances of the City
of Schertz except insofar as the provisions thereof might be inconsistent or in conflict with the
provisions of this Ordinance, in which event such conflicting provisions, if any, are hereby
repealed.
Approved on first reading the 20nd day of May, 2014.
PASSED, APPROVED AND ADOPTED on final reading the 27th day of May, 2014.
Michael R. Carpenter, Mayor
ATTEST:
Brenda Dennis, City Secretary
(SEAL OF THE CITY)
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"The Development Standards"
The subject property will develop in accordance with the regulations of Ordinance 07 -S -14A
except as follows:
IV. AMENDMENTS TO COMMERCIAL AREA DEVELOPMENT STANDARDS
A.1 Building Setback
All buildings shall have a setback of at least twenty feet (20') from a perimeter lot line of
property outside of the PUD. [7.9A (c)].
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SC]H EIR TZ
April 11, 2014
Dear Property Owner,
COMMUNITY
SERVICE
OPPORTUNITY
NOTICE OF PUBLIC HEARING
DEVELOPMENT SERVICES
PLANNING DEPARTMENT
The Schertz Planning and Zoning Commission will conduct a public hearing on Wednesday. April 23, 2014 at 8:00 p.m, located
at the Municipal Complex Council Chambers, 1400 Schantz Parkway, Building N4, Schertz, Texas to consider and make
recommendation on the following Item:
ZC2014.007
A request to rezone approximately 3 acres of land In the Verde Enterprise Business Park Planned Unit Development (PUD)
Ordinance 07 -S -14A to Planned Development District (PDD). The property Is specifically Unit 1 of the Verde Enterprise
Business Park and generally located on the cornerof Interstate Highway 35 and Mid Cities in the City of Schertz, Guadalupe
County, Texas.
Because you are a property owner within two hundred (200) feet of the subject properly, the Planning and Zoning Commission
would like to hear how you feel about this request and Invites you to attend the public hearing. This form Is used to calculate the
percentage of landowners that support and oppose the request. You may return the reply form below prior to the first public
hearing dale by mall or personal delivery to Lesa Wood, Senior Planner, 1400 Schertz Parkway, Schertz, Texas 78154, by fax
(210) 619 -1789, or by e-mail iwood@schertz.cgm.
Sincerely,
Lk_��
Lesa Wood
Senior Planner
I am: In favor of QY opposed to ❑
COMMENTS: Al r D rl7r/L4 XC )
NAME: kOkL7 � N%
(PLEASE PRINT)
Reply Form
eun tralto ❑ the request forZC2014.007
STREETADDRESS: ��20 h%E /_OA/0 4/0, �'auTr 7" ij/ �-romol
DATE: ° PHONE: FD "
1400 Schetlz Parkway Scheriz, Texas 78154 2,0.619.1000 . FyFCF,I \7ED-
APR 17 2014
BY:
L
LAND
F'OL,T1'P10N8
I .v�nrlt lsc Srdi rfion <I 1<rnyi
Michele Haussmann
PRINCIPAL
Michele (a La nd UseSO Itrtlonsl X.com
April 4, 2014
Mr. Brian James, City Administrator VIA Hand Delivery
Planning and Zoning Department
1400 Schertz Parkway, Building #1
Schertz, Texas 78154
Re: Zoning Application - Proposed Modification of the Verde Enterprise
Business Park PUD, City Ordinance Number 07- S -14A, on a 2.812 acre
tract located at the southwest comer of Interstate Highway 35 and Mid
Cities in the City of Schertz, Guadalupe County, Texas ('Property ")
Dear Mr. James:
As representatives of the owner of the above stated Property, Verde South
Partners, Ltd. ( "Applicant'), we respectfully submit the enclosed zoning
application submittal package. The Applicant is requesting a modificaiton of the
PUD, which is considered a rezoning, from PUD, Planned Unit Development, to
PDD, Planned Development District. The purpose of the request is to modify the
required 50 foot building setback from a perimeter lot line of property outside of
the PUD (UDC Section 7.9A(c)). The proposed modification is to reduce the
required building setback from 50 feet to 20 feet. The proposed modificaition
only applies to the portion of the Property that is adjacent to the GCR Tire
Centers property.
For a bit of history, the Property was included in the rezoning of the 207
acre Verde Enterprise Business Park to PUD ( "PUD ") in 2007. The PUD
included commercial and industrial uses and no residential uses. The Property is
designated Commercial in the PUD. At the time, the 207 acre PUD was
surrounded by commercial and industrial zoning and land uses, including the
GCR Tire Centers property to the south. The Verde Enterprise Business Park
701 Frazos Sh ea 1,'. t n le 500
hull ln. l,xo:. 78701
Al 41111
1000.5 NW Milii.lry Hwy, Suile 2215
An[,,nlo, Texas 7827,1
210.813 2729
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t �
LAND ;
SO IIYJ`T'IONB
I . +nJlJs(,S, luiinn'J k , uni
project is now developed with approximately 2.1 million square feet of
distribution warehouse and data center uses including Amazon. The Property will
be developed as a commercial/retail project within the PUD.
The intent of the proposed modification is to accomplish building setbacks
that are typical between commercial and industrial properties. The 50 foot
building setback from a perimeter lot line of property outside of the PUD is a
general requirement that applied to all PUD's in the City at the time the PUD was
approved. In this circumstance, the City approved this industrial /commercial
PUD adjacent to existing commercial and industrial zoning and land uses. Based
on the unique location of the Property adjacent to the GCR Tire Centers property,
the intent of a 50 foot building setback to protect adjacent properties is not
necessary since the use of the adjacent property is the outdoor storage of tires and
the driveway to their business. GCR Tire Centers is not required to provide the
same 50 foot building setback on their property. In addition, there are no
residential zoning or uses in this area that require significant building setbacks
from industrial and commercial uses. Therefore, the modification will not have a
significant impact on uses in the area. To further support the insignificance of the
reduction of the building setback, the side building setback required between
commercial and industrial buildings in the Unified Development Code is 0 feet,
which is much less than the proposed 20 foot building setback.
The proposed language to be included in the PUD Enterprise Business
Park Standards (Exhibit B) is as follows, "All buildings shall have a setback of at
least fifty feet (50') from a perimeter lot line of property outside of the PUD,
except that a minimum setback of twenty (20') shall apply to buildings where the
perimeter lot line abuts a street (public or private) or the land uses on the property
outside of the PUD are commercial or industrial [7.9A(c)] ". Please see the
enclosed Exhibit B with this modification.
Please do not hesitate to contact me if you have any questions. Thank you
for your time and assistance with this application.
Very truly yours,
/
Michele Haussmann
CC: Lesa Wood, Planning and Zoning Department, via electronic mail
Steve Braha, Verde South Partners, Ltd., via electronic mail
Kevin Love, K Love Engineering, via electronic mail
/u1 Hla2w, 6lrest, Su1iu `,( , u
AwAm, Toxa 787111
lU(lUa NW "11111MV I-IWy,',111112)11,
San Anlonw. Texas /F17 i1
711.812 2277
L
WIT211"
SOLUTIONS
1'3110 I,.... a linty s l X own
Exhibit B
Enterprise Business Park PUD Standards
IV. AMENDMENTS TO COMMERCIAL AREA DEVELOPMENT
STANDARDS
A.1 Building Setback
All buildings shall have a setback of at least fifty feet (50') from a
perimeter lot line of property outside of the PUD, except that a minimum
setback of twenty (20') shall apply to buildings where the perimeter lot
line abuts a street (public or private) or the land uses on the property
outside of the PUD are commercial or industrial [7.9A(c)].
/M Brozos Sutter, Suite 500 1000,1 NW Military Hwy, Suite 2275
Austin, Iexals 78701 San Antonio, Texas 78%31
.. . n S12 212 R11n I, 710 812 2222
JIM� �;.
,
THAT, UDC Ordinance No. 96 -5 -28 of the City of Schertz, Texas is hereby amended in the
following manner.
"Rezoning 127.25 ±, 68.21f, and 14.25± acres being situated out of the Torribia Herrera Survey
No.68, Abstract No. 153, Guadalupe and Comal County, Schertz Texas, being more particularly
described in the Field Notes and Map, as attached hereto as Exhibit A, and made a part hereof,
from Manufacturing District -Light (M -1)and General Business District (GB) to Planned Unit
Development District (PI according to the guidelines set forth in Exhibit "B ".
MKIIJIMM
THAT, The Zoning District Map described and referred to in Article 111, of the UDC, Ordinance
96 -S -28 shall be changed to reflect the above amendments.
ZCZC2006 -021
THAT this Ordinance shall be effective from and after its final passage and any publication
required by the City of Schertz.
�yoC�IIY[i7►�]
THAT all ordinances or parts of ordinances in conflict with this Ordinance are hereby repealed.
Approved on first reading the 20th day of February, 2007.
PASSED, APPROVED AND ADOPTED the 6th day of March, 2007.
ayor, City of Schertz, Texas
ATTEST:
° Secret y, City of exas
(SEAT, OF THE CITY)
ZCZC2006 -021
Bft 127.252 was of had not ddm Tonft FAum Savay No, 68, Abamcl No. 153. OusdahW and
C.00nl Coovty,Tomm odbdq motdWoutda 236.13 as dmribod In dead recorded
in Vohone 768, Pw 80090 Vahm 768. Pop 912 of dm 069cid Rwonh ofOMW County. Taxes, and
said 127.252 orator has oflaad bdn ewto puribnobaly dwAdW ■a fallow:
Beginning ■ta Wimpin Road fa du mug W conmofLa8, Td &hxdoahiat
Pack Uah 2 asmoekd[aVahmo 8. Pop 121 -124 of do Mapmd Plot ofCmnlC Inty, Toga;
Thar■ wOh the Soutwaq Gael ofrid & kdw&W Park Unh 2,(Imwba PaHx
Sob&viaman mcor&d in valum '5, Pop 3%S, sad W 11, Lot 10, and Lot 9 of
Pak Unit 1, S 30.03'50" B disbact of3656.22 fed to a% " has pia found in dw teight -af-
way line of Intanamte B4hvmy No. 35
Them vit to -way tics of bAmvtm IBshmy 35, 960e 001 1VI W,a disiance of
859.17 that to a W ism* whh cW "fmand fac dm Banwily omna of a 8.050 aces h■ot
of land u desenled in Volume 1468. Fagg 962 of des■ Dad Roca& otGue&twe Cwwy, Taxaa;
with the N Bars ofaid 8.050 am had of Lad N29" %'45 "We dimance of 281.95 fat
to a W hoaptn with c food in Ow Chub
Udt 1, aaidHama L7eole Uolti ■ ofram a.o50■va hmSOf;
,
These" N 30' 05° 15" W, Wft sa Of 127.741 aao d2l of lead at 768.09 fee4 0w
H4132 seas trrsl of had, maW ofOdtkaeoie 127.252 aaolcemtafland, aadb�8
is tDa 11�ofa39.753 was trectoflcatleda &ve sad Mttm ®deed
gad [n Vote= 768. Pogo WomA Vokm 76®,Pago 912 of ft ofConwl
C.omary. Yours:
7lwaoo dopuft gmidWegWy md wwould 234.173 art bw of had, N 60° 00'57"8
of 1672.17 fwto dw Plo Of Begknkg wd CGOWUbW 127152 mesa of land.
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METES AND BOUNDS DESCRIPTION
FOR A
68.207 ACRE TRACT OF LAND
Being 68.207 acres of land out of the Torribla Herrera Survey No, 68, Abstract No.
153, Comal County, Texas, and being those certain tracts described as a 27,741
acres In Volume 2078, Page 983 of the Deed Records of Guadalupe County, Texas,
and the remainder of on 87.58 acre tract of land as recorded on Volume 60, Page
546 of the Deed Records of Corral County, Texas, and sold 68,207 acre tract of land
being more particularly described as follows:
Beginning at a Texas Deportment of Transportation Type II monument found at the
Northerly cutback of Interstate Highway 35 and Lookout Road, and being a Southerly
corner of this herein described 68.207 acre tract of land;
Thence with the. Northeasterly line of Lookout Road, N 30' 10' 34" W, passing a"
iron pin with red cap stamped "VICKERY" found for the Southerly corner of a called
27.741 acre tract of land at 1730.29 feel, and continuing a total distance of
2996.54 feet to a %" Iron pin with yellow cap stamped "KOLODZIE" found for the
Southerly corner of a called 14.100 acres in Volume 443, page 446 of the Deed
Records of Guadalupe County, Texas and Volume 188, Page 686 of the Official
Records of Comal County, Texas, and being the most Westerly corner of this herein
described 68.207 acre tract of land;
Thence departing said Lookout Road and with the Southeasterly line of sold 14.100
acre tract of land, N 65' 14' 52" E a 'distance of 996.34 feet to a %" Iron pin with
yellow cap stamped "KOLOD'ZIE" found In the Southwesterly fine of a 234.13 acre tract
of land as described In deed recorded In Volume 766, Page 800 and Volume 768,
Page 812 of the Official Records of Comal County, Texas, and being the Easterly
corner of said 14.100 acres, the most Northerly corner of this herein described
68.207 acre tract of land;
Thence with the Southwesterly line of said 234.13 acres, S 30' 05' 15" E, passing a
91i" Iron pin with red cap stamped "FISHER" found for the most Easterly corner of
said 27.741 acre tract of land, and continuing a total distance of 2974.83 feet to a
'A" Iron pin with orange cap stamped "C & 8 PROP COR." set in the Northwesterly
right —of —way line of Interstate Highway 35;
Thence with sold Northwesterly right —of —way, line of Interstate Highway 35, the
following calls:
S 65' 16' 27" W a distance of 206.69 feet to a 1" square iron pin found for a
corner;
S 59' 55' 20" W a distance of 319.15 feet to a h Iron pin with red cap stamped
"VICKERY" found for a corner;
S 60' 04' 50" W a distance of 412.39 feet to a Texas Department of Transportation
Type II monument found at a cutback to Lookout Road;
and N 74' 55' 25" W a distance of 71.02 feet to the Place Of Beginning and
containing 68.207 acres of land.
METES AND SOUNDS DESCRiP11ON
FOR A
14.254 ACRE TRACT OF LAND
Being 14.254 acres of land out of the Torrlbio Herrera Survey
No. 68, Abstract No. 153, Carnal County, Texas, and being that
certain tract described us 14.100 acres in Volume 443, page
446 of the Deed Records of Guadalupe County, Texas and
Volume 188, Page 686 of the Official Records of Comal County,
Texas, and said 14.254 acre tract of land being more
particularly described as follows:
Beginning at a %" iron pin found for the most Westerly corner
of a 234.13 acre tract of land as described in deed recorded in
Volume 768, Page 800 and Volume 768, Page 812 of the
Official Records of Comal County, Texas, and being in the
Southeasterly line of a 38.753 acre tract of land called o Save
and Except tract as described In deed and recorded in Volume
768, Page 800 and Volume 768, Page 812 of the Official
Records of Carnal County, Texas, and being the most northerly
corner of this herein described 14.254 acre tract of land;
Thence with the Southwesterly line of sold 234.13 acre tract,
S 30' 05' 15" E a distance of 671.22 feet to a V2" Iron pin
with yellow cap stamped "KOLODZIE" found for the most
Northerly corner of a called 27.741 acre tract of land as
recorded In Volume .2078, Page 983 of the Deed Records of
Guadalupe County, Texas, ,ond being the most Easterly corner of
this herein described 14.254 acre tract of land;
Thence departing the Southeasterly line of said 234.13 acre
tract of land, the Northerly corner of sold 27.741 acre tract of
land, S 65' 14 52' W, a distance of 996.34 feet to a Y2° Iron
pin with yellow cop stomped "KOLODZIE" found for the most
Westerly corner of sold 27,741 acre tract of land, the Northeast
line of Lookout Road, and being the most Southerly corner of
this herein described 14.254 acre tract of land;
Thence deporting the Westerly corner of said 27.741 acre tract
of land, and with the Northeast line of Lookout Road,
N 30' 10' 34" W, a distance of 580.12 feet to'o W" Iron pin
found for a Southerly corner of sold 38.753 acre tract of land,
and being the most Westerly corner of this herein described
14.254 acre tract of land;
Thence with the common line of sold 38.753 acre tract of land,
and this herein described 14.254 acre tract of land,
N 60' 00' 07" E a distance of 992.92 feet to the Place Of
Beginning and containing 14.254 acres of land.
February 8, 2007 Update
Enterprise Business Park PUB Standards
A. Commercial Area
That certain area designated as "Commercial Area" on Schedule I
attached hereto and made a part hereof for all purposes.
B. Fagade
Any exterior wall of a building exposed to public view [7.9C (a)].
C. General Open Space
An outdoor or unenclosed area located on the ground or on a roof,
balcony, deck, porch or terrace, designed and accessible for
outdoor recreation, pedestrian access or landscaping, excluding
parking facilities and driveways [7.6A(a)].
D. Gross Floor Area (GFA)
The total area of the covered floor space measured between the
center line of party walls, including the thickness of external walls,
but excluding voids.
E. Industrial Area
That certain area designated as "Industrial Area" on Schedule 1.
F. Major Electric/Telephone/Transmission Lines
Any electric /telephone /transmission or other service line not
having a direct building service /feed and which runs from metal
poles [7.6C(i)].
G. Permitted Uses
All uses permitted by right within an "M -1" (Manufacture District
— Light) zoning district under the Unified Development Code
(Article IV, Section 5), and all uses permitted by right within a
"GB" (General Business District) zoning district under the UDC
(Article IV, Section 5), unless otherwise listed below under
"Prohibited Uses ".
H. Prohibited Uses
The following uses shall be prohibited on the property:
1. Animal control facility;
2. Flea market;
3. Portable building sales;
4. Recreational vehicle sales and service;
5. Sexually Oriented Business;
6. Trailer/Manufactured homes sales;
7. Truck sales/heavy equipment;
139200.00002 109693 vl
February 8, 2007 Update
S. Waste disposal facility (public);
9. Wrecking or salvage yard; and
10. Any use that emits noxious or hazardous odors.
I. Significant Natural c eatures
Unique natural features, the destruction of which would constitute
a significant loss for a larger community (local, state, national or
global), including, but not limited to, wetlands, creeks or rivers or
karst formations (limestone caves) [7.6A(b)].
J. Tractor - Trailer An articulated truck consisting of a towing engine
and a semi - trailer (plus possible additional trailers) that carries
freight.
K. Typical Utility Mains /Service Lines
Water mains, sanitary sewer mains, electrical lines, telephone
lines, cable television lines, fiber optic lines or similar lines, and
storm drain pipes/box culverts other than Major
Electric /Telephone /Transmission Lines [7.6C(i)].
L. UDC
The City of Schertz Unified Development Code, which is
Ordinance No. 96 -S -28.
Note: Any corresponding existing UDC provision, proposed for amendment or
requiring additional specificity in the form of new definitions below, is referenced
in brackets.
Except as noted herein, the terms of the City of Schertz Planned Unit
Development (PUD) Ordinance 05 -S -50, which is Section 7 of the UDC,
shall apply. Unless otherwise specified herein, all future development on
the Property shall be governed by the terms of the UDC in effect of the
effective date of this zoning ordinance.
III. AMENDMENTS TO GENERAL DEVELOPMENT STANDARDS
A. General Open Space Provisions
1. General Open Space shall not be required to exceed
landscaped areas (excluding medians) and drainage
channels [7.6A(a)].
2. The Property has no significant natural features to preserve
[7.6A(b)].
3. All six (6) inch DBH (Diameter at Breast Height)
hardwood trees shall be preserved or mitigated and
139200.00002 109693 yr
February 8, 2007 Update
inventoried, except for those located within a proposed
building footprint [7.6A(e)].
4. All medians and drainage channels shall be maintained as
common areas by business park management [7.613(b)].
B. Screening and Buffering
Screening and buffering may be accomplished via landscaping,
trees (including existing trees), fences, walls, or any combination
thereof. Fences and walls may be at heights desired by Developer,
but with a minimum height of six (6) feet [7.6C (e)].
C. Interconnectivity
Vehicular interconnectivity shall be provided for all contiguous
buildings in the Commercial Area along the IH -35 frontage road
[7.6C(f)].
D. Screening of Trash Enclosures
All trash enclosures shall be screened from view utilizing
landscaping, trees, fences, walls, or any combination thereof, and
shall have a minimum height of six (6) feet [7.6C(g)].
E. Utilities
Typical Utility Mains /Service Lines shall be buried, except for
Major Electrie/Telephone /Transmission Lines [7.6C(i)].
F. Stormwater
The project shall demonstrate that, as compared with the condition
that would have existed on the Property without development, no
phase of the PUD shall result in a net loss in storage capacity for
stormwater. The project must comply with Federal Emergency
Management Administration (FEMA) requirements, including the
Code of Federal Regulations (CFR) 44 [7.6CO)].
DEVELOPMENT IV. AMENDMENTS TO COMMERCIAL AREA
STANDARDS
A. Building Height
Commercial building height shall be limited to a maximum of sixty
(60) feet [7.9A(a)].
B. Panting
One hundred percent (100 %) of parking spaces shall abut either a
landscaped separation or a sidewalk, except for service parking
areas behind the buildings [7.9A(g)].
139200.00002 109693 v
February 8, 2007 Update
C. Commercial Architectural and Site Design
1. Every one hundred (100) feet of building length shall
incorporate a minimum of one (1) architectural element,
such as an arcade, roof, alcove, portico or awning
[7.9C(a)j.
2. The primary orientation of the cotmmercial /retail buildings
shall be toward a street, excepting any office pad sites
within the Commercial Area. For the purposes of this
requirement, a building shall be deemed oriented toward a
street if the major entry feature of the building generally
faces the street. [7.9C(d)].
3. Loading docks shall be located at the rear of
commercial /retail buildings [7.9C(f)].
4. Windows shall be inset a minimum of three (3) inches
[7.9C(h) & 7.9C(i)].
AMENDMENTS V. 1 1 O.:
► 1 , e 1
A. Building Height
Industrial building height shall be limited to a maximum of forty -
five (45) feet [7.1 OB(a)].
B. Screening
1. Service or storage yards shall be screened with a minimum
height of six (6) feet, but they may be located other than at
the rear of the building [7.10B(c)(3)].
2. Loading docks shall be screened with landscaping, trees,
fences, or walls, or any combination thereof, and at a
minimum height of six (6) feet [7.1 OB(d)].
C. Industrial Architectural and Site Design
1. Awnings will be incorporated into the building designs
where commercially reasonable [7.1 OD(a) & 7.lOD(b)].
2. Parking shall be permitted in the front of buildings
[7.101)(g)].
1
ME=' 1',,
A. Permitting (Article IX, 5.11
Commercial Area
Permitting from the City of Schertz is required initially for
each sign in the Commercial Area. However, no permits
are required to relocate "For Sale" or "For Lease" signs in
the Commercial Area.
139200.00002 109693 vl
February 8, 2007 Update
2. Industrial Area
Permitting is not required for the installation of "For Sale"
or "For Lease" signs in the Industrial Area.
B. Plumber of Signs (General Provisions)
Except as noted herein, all businesses /tenants shall be permitted
two (2) exterior on- premise signs: one (1) wall sign and one (1)
free - standing sign. Additionally, if the fapade length of a building
exceeds five hundred (500) feet, two (2) monument signs shall be
permitted at a distance of at least four hundred (400) feet from
each other [Article IX, 7.3].
C. Maximum height (Monument Signs)
Project identification monument signs along Interstate 35 shall not
exceed a maximum of nine (9) feet in height. Monument signs
within the Commercial Area shall not exceed five (5) feet six (6)
inches in height. Monument signs in the Industrial Area shall not
exceed twelve (12) feet, four (4) inches in height [Article IX,
7.5C].
D. Maximum Square Footage (Monument Signs)
Monument signs along Interstate 35 shall not exceed two hundred
fifty (250) total square feet per sign side. Other monument signs
(i.e., not located along IH -35) shall not exceed one hundred eighty
(180) total square feet per sign side [Article IX, 7.513].
E. Number of Signs (Industrial Area Monument Signs)
One (1) monument sign shall be permitted for each building in the
Industrial Area; provided, however, if the fagade length of a
building exceeds five hundred (500) feet, two (2) monument signs
shall be permitted at a distance of at least four hundred (400) feet
from each other [Article IX, 7.5E].
F. For Sale or Lease Signs (Real Estate Signs)
There shall be a maximum of one (1) "For Sale" or "For Lease"
sign for each building fagade fronting a public or private street or
private driveway, unless the building fagade length exceeds five
hundred (500) feet, in which case two (2) "For Sale" or "For
Lease" signs shall be permitted, but no closer than within four
hundred (400) feet of each other [Article IX, 7.13(3)].
G. Number of Signs (Multi - Tenant)
In addition to the signs otherwise permitted herein, multi- tenant
buildings shall be permitted to have a directory sign at each
intersection of a public or private street or private driveway
[Article IX, 8.913(1)].
139200.00002 109693 v1
February 8, 2007 Update
H. Maximum Souare Footage (Multi- Tenant)
Tenant signs grouped in a directory arrangement shall not exceed
twenty four (24) square feet for each tenant sign [Article IX,
8.98(2)].
VII. PARKING [Article X, 7.21
The following parking ratios shall be:
1. Commercial
Office: 3 spaces /1000 sf GFA; and
Retail: 4 spaces /1000 sf GFA;
1 Warehouse Buildings under 150.000 sf
Office: 3 spaces /1000 sf GFA; and
Warehouse: 1 space /5000 sf GFA;
3. Warehouse Buildings over 150.000 sf
Office: 3 spaces /1000 sf GFA; and
Warehouse: I space /10000 sf GFA; and
4. Excess Tractor - Trailer Parking Ratios
Buildings containing 300,000 square feet of GFA or more
shall have a staging area requirement of one (1) trailer per
five (5) dock doors, with staging allowed against any
buildings that have no dock doors.
VIII. PARKING LIGHTING [Article X, 9.31
Commercial Area
In the Commercial Area, lighting shall be shielded to
reduce lighting of adjacent properties.
2. Industrial Area
In the Industrial Area, lighting shall be appropriate to
provide adequate security for the area.
139200.00002 109693 vi
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Before me, the undersigned authority, on this day personal) a this the 20th day of February
y appeared Helen I. Lut 9nn7
by me duly Sworn, says un oath LhaL she is Publisher of the Commercial Recorder, a r PASSED, APPROVED,
general circulation in the City of San Antonio, in the State and County aforesaid, and tAND ADOPTED on this the 6th
Ordinance 07 -14 -14 here to attached has been published in every issue of said nevday of March 2067.
following days, to wit: /s /HAL BALDWIN
Mayor
Attest: Judy Tokar
City Secretary
3/19
03/19/2007.
Sworn to and subscribed before me this 19th day of of March, 2007.
MARTHA L. MACHUCA
0.1 NOTARY PUBLIC
STATE OF TEXAS
°°tia? os My Corm. Exp. 12 -02.1007
PUBLIC NOTICE
n
Affidavit of Publisher
ORDINANCE NO. Q7-14-1I 4
An ordinance by the City
Council of the City of Schertz,
Texas amending the Unified
STATE OF TEXAS
Development Code (UDC)
Ordinance 96 -S -28 by rezoning
127.25, 68.21 ±, and 14.25±
COUNTY OF BEXAR
acres out of the Torribia Herrera
Survey No. 68, Abstract No.
153, Guadalupe and Comal
City of Schertz
County, Texas from Manufac-
lure District -Light (M -1) and
General Business (GB) to
Planned Unit Development
District (PUD); providing an
effective date; and providing a
repealing clause.
Approved on first reading
Before me, the undersigned authority, on this day personal) a this the 20th day of February
y appeared Helen I. Lut 9nn7
by me duly Sworn, says un oath LhaL she is Publisher of the Commercial Recorder, a r PASSED, APPROVED,
general circulation in the City of San Antonio, in the State and County aforesaid, and tAND ADOPTED on this the 6th
Ordinance 07 -14 -14 here to attached has been published in every issue of said nevday of March 2067.
following days, to wit: /s /HAL BALDWIN
Mayor
Attest: Judy Tokar
City Secretary
3/19
03/19/2007.
Sworn to and subscribed before me this 19th day of of March, 2007.
MARTHA L. MACHUCA
0.1 NOTARY PUBLIC
STATE OF TEXAS
°°tia? os My Corm. Exp. 12 -02.1007
-99*O
'Ar Texas Department of Transportation
P.O. Box 299281 San Antonio, TEXAS 78229 -0928 1 (210) 615 -1110 1 WWW.TXDOT.GOV
April 29, 2014
Kathryn J. Woodlee, P.E. CFM
City Engineer
10 Commercial Place, Bldg. 2
Schertz, TX 78154
RE: IH 35 Overpass at Country Club Drive in Schertz
Dear Ms. Woodlee:
Thank you for your March 24, 2014, letter and executed resolution in which you and the Schertz
City Council convey the desire for an overpass to be constructed at Country Club Drive in order to
provide improved traffic flow and a less impeded traffic pattern for drivers in the vicinity.
TxDOT understands the concern in this area and wishes to partner with the City of Schertz to
evaluate options for improved traffic operations on the IH 35 corridor. TxDOT commits to initiating a
traffic and feasibility study to evaluate alternatives for improvements to frontage roads,
intersections, and entrance and exit ramps in order to provide the desired traffic flow.
The scope of this study will involve the investigation of ramp and frontage road operations on IH 35
from FM 1103 (Hubertus Road) in Cibolo to Loop 337 (Ruekle Road) in New Braunfels. This will
provide a large enough study area to evaluate all the reasonable alternatives to address not only
your concerns, but also other concerns that have been brought to our attention in recent months
and through our own monitoring of the current and projected traffic growth in this segment of the IH
35 corridor. We plan to initiate this study in the next few weeks and would welcome involvement
from the city of Schertz as recommendations from the study are developed.
Thank you again for the communication and we look forward to partnering with the city of Schertz in
the development and implementation of transportation solutions.
Sinc rely
G
Mario R. Jor E.
San Antonio District Engineer
cc: Jonathan Bean, P.E. - Director of Transportation Planning and Development
Ricardo Castaneda, P.E. - Director of Operations
Jessica Castiglione, P.E. - Area Engineer
Clayton Ripps, P.E. - District Advanced Planning Director
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