To: Board of Supervisors
Department or Agency Name(s): County Counsel and County Administrator’s Office
Staff Name and Phone Number: Matthew Lilligren, Deputy County Counsel, (707) 565-2421
Vote Requirement: Majority
Supervisorial District(s): Countywide
Title:
Title
Amendments to Sonoma County Code Section 19-15. Limiting the Prohibition of Camping on Public Property to Specific Times and Locations - Second Reading and Adoption of Ordinance or, alternatively, Re-introduction
End
Recommended Action:
Recommended action
Consideration of an Ordinance Amending Chapter 19, Section 19-15 of the Sonoma County Code to limit prohibitions on public camping to certain times and locations and finding the project exempt from California Environmental Quality Act (CEQA) pursuant to 14 CCR Sections 15061(b)(3) and 15308:
A) Second reading and adoption of proposed ordinance introduced on September 27, 2022, or, alternatively;
B) Consider the additional revisions recommended by staff and:
i. Adopt a Resolution re-introducing, reading the title of, and waiving further reading of an ordinance amending Section 19-15 of the Sonoma County Code to limit prohibitions on public camping to certain times and locations.
ii. If re-introduced, direct staff to schedule the proposed ordinance for a second reading and adoption.
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Executive Summary:
On July 12, 2022, Staff presented your Board with proposed amendments to the County’s public camping ordinance, Section 19-15 of the Sonoma County Code. Your Board requested that Staff further analyze whether the proposed amendments to Section 19-15 could define the prohibition of camping near waterways by reference to the FEMA 100-year flood zones as opposed to the reference to the high-water mark of state waterways as used in Fish and Game Code § 5652. In addition, your Board requested Staff to analyze whether additional notice should be provided to individuals camping near such waterways or in a very high fire severity zone before a violation of the section is deemed to occur.
On September 27, 2022, Staff presented three revised options for amending Section 19-15 for your Board’s consideration. The presentation included the original version presented on July 12 and two new versions incorporating the revisions requested by your Board. Your Board ultimately decided to introduce a combination of Staff versions 2 and 3 for the first reading. In addition, your Boards requested that Staff (1) prepare or obtain maps depicting the locations of the areas adjacent to waterways where camping would be prohibited under the amendments to Section 19-15 and (2) meet with the affected Department Heads to discuss recommendations for the proposed implementation of the amendments to Section 19-15 once adopted by your Board.
After obtaining the requested maps and convening the implementation meeting, Staff recommends that your Board introduce and adopt a further revised version of the proposed amendments that were previously introduced.
Two versions of the amendments are presented for your Board’s consideration. The version introduced by your Board on September 27, 2022 (Attachment A), along with a new version further refining the specific areas where camping will be prohibited at all times (Attachment C). Staff recommends that your Board reintroduce the revised version of the amendments to Section 19-15 and bring the revised ordinance back for adoption on April 18, 2023.
Staff recommends that your Board adopt the proposed amendments to Section 19-15 of the Sonoma County Code to conform to recent court decisions limiting local jurisdictions’ ability to enforce laws regarding public camping unless certain requirements are met. The proposed amendments would permit individuals to camp during certain times and at certain locations in order to balance the legal rights of unhoused individuals to have a place to sleep when there is no shelter otherwise available for those individuals with the overall health and safety of the community. With the recommended action for this Item, the amendment to Section 19-15 would further define public property, where camping is unlawful on public property, and when camping is prohibited at certain times.
The legal challenges to public camping ordinances and the solutions for legally addressing growing homeless encampments continue to evolve. Jurisdictions around the state differ in their responses. Some jurisdictions are not enforcing camping ordinances or tying enforcement to shelter availability, while others are enacting camping ordinances that attempt to align with recent legal cases. Staff is recommending the latter approach with the proposed ordinance before you for consideration. By doing so, this would bring the ordinance in line with Martin v. City of Boise by recognizing the fundamental right for unsheltered individuals to sleep where shelter is not otherwise available, while maintaining the County’s ability to prohibit prolonged occupation of public property, large accumulation of items and debris, and the establishment of large-scale encampments. Proposed amendments include (1) prohibition of camping on or near certain types of properties that are particularly sensitive or inconsistent with such use and (2) limiting public camping to 9:00 p.m. to 7:00 a.m. in the remaining areas of public property.
Discussion:
Over the past decade, jurisdictions throughout California have seen a significant increase in the unauthorized camping and storage of personal property both on public and private land. This proliferation of unauthorized camping and storage of property has brought with it social, economic, and environmental concerns along with public health and safety issues. In Sonoma County, even after multiple Board of Supervisors investments to expand emergency shelter, the increase in unauthorized camping has led to the development of large-scale encampments, multiple fires and fire hazards, public health and safety concerns, the inability to use or access public property for its intended purpose, biological hazards and environmental harm, public disposal of waste and the accumulation of large amounts of debris and garbage. Most of the listed outcomes have resulted in the investment of County funds toward significant encampment cleanup and environmental remediation costs, as well as to address other general public health and safety concerns.
Since the proposed amendments to this ordinance were introduced last year, your Board adopted a resolution declaring a shelter crisis related to rapidly growing homeless encampments located on the portion of the Joe Rodota Trail within the city limits of Santa Rosa and allocated up to $3 million to create up to two emergency shelters on County properties to house up to 100 individuals from these encampments. Prior to closing the trail due to the growing health and safety concerns, more than 90 individuals were offered a space at the new emergency shelter site with more than 70 individuals accepting a placement. As your Board noted during the February 21, 2023 Special Meeting, the County and its city partners have invested significant federal, state, and local resources over the past five years to create for than 500 additional housing throughout the county, yet the proliferation of large encampments continues to be an ongoing, resource-intensive problem.
Camping on public lands outside of areas specifically designed and designated for those purposes can create health and safety risks, not only for persons engaged in the camping but also for all persons encountering the often unsanitary and disorderly environment in burgeoning, makeshift camps. Further, camping may interfere with the intended purposes of public areas, obstruct public rights-of-way, and impact important federal regulations requiring a clear path of travel on sidewalks under the Americans with Disabilities Act.
Sonoma County Code Section 19-15 currently regulates camping on public and private property. The Section was originally adopted in 2004 and amended once in 2014 to remove a prior prohibition on vehicle habitation in response to a legal decision from the Ninth Circuit Court of Appeals. Recent changes in the law have impacted the manner in which the County may now enforce Section 19-15 and again have prompted the need for amendment to Section 19-15 to conform to the legal requirements set forth in the Ninth Circuit Court of Appeals decision Martin v. City of Boise, 920 F.3d 524, 617 (9th Cir. 2019) [“Martin”].
Legal Background on Camping Ordinances
The Ninth Circuit case of Martin was brought by a group of homeless individuals in Boise who were cited for violating the City’s camping ordinance along with its disorderly conduct ordinance. Plaintiffs alleged these citations violated the Cruel and Unusual Punishments Clause of the Eighth Amendment. The court held that local governments are prohibited from criminalizing homelessness, that jurisdictions must allow individuals to sleep on public property when no other shelter is available to them, and that prosecution by the City of Boise under these circumstances violated the cruel and unusual clause of the Eighth Amendment.
The Court also made clear its ruling did not apply to individuals who refuse free shelter when offered realistic access, and that, in some circumstances, jurisdictions can criminalize sleeping outside at certain times or in certain locations. A key consideration in the Martin case pertained to the lack of available beds in the City’s homeless shelters and a lack of evidence that the individuals had been offered shelter prior to the citations being issued. The Ninth Circuit held that “so long as there is a greater number of homeless individuals in [a jurisdiction] than the number of available beds [in shelters],” the jurisdiction cannot prosecute homeless individuals for “involuntarily sitting, lying, and sleeping in public.” The court concluded that if there is no suitable option for sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter. The court further held that the government cannot punish someone’s status as being homeless, if they have nowhere else to go. As a result of the Martin decision, the County cannot criminally cite or arrest a person for sleeping or camping in public spaces, unless it can demonstrate the individual subject to citation or arrest was first offered shelter or had other locations available to them where they were legally able to sleep.
The Martin decision outlined some general types of enforcement actions that are still legally permissible even without providing adequate shelter. First, individuals who decline an offer of shelter, or reasonably have access to or the means to acquire shelter are not shielded from enforcement. Second, the County may continue to enforce rules against obstruction of public rights of way (streets and sidewalks) or the erection of certain kinds of structures. Third, “even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible.” Martin at 617, fn. 8. The key is whether the local regulation “punishes a person for lacking the means to live out the ‘universal and unavoidable consequences of being human’ in the way the ordinance prescribes.” Id.
As courts have recognized, Martin does not “establish a constitutional right to occupy public property indefinitely at Plaintiffs' option” (Winslow v. City of Oakland, 2020 WL 1031759 (N.D. Calif.). Courts have authorized the clearing of homeless encampments, particularly with policies providing adequate notice, offering of shelter beds, and storage of property. The policies must also address the Fourth and Fourteenth Amendment rights that unhoused individuals have to their property. Absent exigent circumstances, the County has followed the same model since the Martin decision to offer adequate notice, outreach, offers of adequate shelter, and storage of property prior to clearing any homeless encampment on public property.
Since the Supreme Court denied review in Martin, court decisions over the past three years have begun to reinforce Martin’s limited holding and a jurisdiction’s ability to delineate constitutionally adequate prohibitions against camping on public property. For example, Gomes v. County of Kauai, No. 20-00189 JMS-WRP, 2020 U.S. Dist. LEXIS 154766, at *9 (D. Haw. Aug. 26, 2020), held that the plaintiffs legal challenge to citations they received under two county ordinances prohibiting sleeping and erecting certain structures in a County park did not violate the Eighth Amendment under Martin, even if it were true that the County lacked adequate shelter space for its homeless population:
Plaintiffs did not “allege that Defendants criminalized Plaintiffs for sleeping on public property; instead, it alleges that Defendants criminalized sleeping in a public park. That is, although perhaps Plaintiffs could not sleep at Salt Pond Beach Park without receiving a citation, there is nothing in the Complaint to suggest that Plaintiffs could not sleep in other public places within the County of Kauai. Put differently, had the County of Kauai ordinance criminalized sleeping at Salt Pond Beach Park, with or without a permit, such a restriction would not by itself violate the Eighth Amendment. Instead, Martin applies if the locality criminalizes the homeless sleeping on public property ‘on the false premise that they had a choice in the matter.' Id. at 617. Here, all that is clear from the Complaint is that Plaintiffs could not sleep at one public park on Kauai.”
Gomes v. Cty. of Kauai, at *8-9 (D. Haw. Aug. 26, 2020); see also Young v. City of Los Angeles, 2020 U.S. Dist. LEXIS 23369, 2020 WL 616363, at *5 (C.D. Cal. Feb. 10, 2020) (recognizing “the Eighth Amendment only bars the City from criminally prosecuting Plaintiff for sleeping on public streets when he has no other place to go”). “Martin does not limit the [c]ity's ability to evict homeless individuals from particular public places.” Aitken v. City of Aberdeen, 393 F. Supp. 3d 1075, 1081-82 (W.D. Wash. 2019) (collecting cases).
Following Martin, the Ninth Circuit Court of Appeal has reiterated that “the government may evict or punish sleeping in public in some locations, provided there are other lawful places within the jurisdiction for involuntarily homeless individuals to sleep.” Johnson v. City of Grants Pass, 50 F.4th 787, 812 n.33 (9th Cir. 2022) (collecting cases). Since Martin, District Court opinions have consistently reinforced this use of reasonable geographic limitations as well as a daytime prohibition on public camping so long as there is adequate space remaining for individuals to sleep at night. In a recent case involving the City of Monterey, the court stated: “The key question under Martin, then, is whether the ordinances collectively criminalize sleeping outside anywhere in the City (particularly in the evening, the normal sleeping period for most people), or whether the ordinances merely criminalize sleeping in certain areas within the City.” Wills v. City of Monterey, No. 21-cv-01998-EMC, 2022 U.S. Dist. LEXIS 136366 (N.D. Cal. Aug. 1, 2022) Likewise, another court held that to prevail in a challenge under Martin, “Plaintiffs must show that a City has effectively criminalized sleeping outside anywhere in the City.” (Bacon v. City of Chula Vista, No. 22-cv-1278-GPC-WVG, 2022 U.S. Dist. LEXIS 156712, at *4 (S.D. Cal. Aug. 30, 2022) (“Cities are allowed to criminalize sleeping in certain and specific areas.”)
The legal challenges to camping ordinances and the disposal of articles in disbanded homeless encampments, as well as court rulings on these issues, continue to evolve. Jurisdictions around the state differ in their responses. Some jurisdictions are not enforcing camping ordinances or tying enforcement to shelter availability, while others are enacting camping ordinances that attempt to align with the holding of Martin and other recent cases. Staff is recommending the latter approach with the proposed ordinance before you for consideration.
Summary of Proposed Amendments to Section 19-15
The following is a list of the proposed amendments to bring the County’s existing camping ordinances into compliance with current law under Martin v. City of Boise while still providing the County with the necessary legal options to address encampments when they become a health and safety concern:
1. Impose time limitation on enforcement.
• As amended, Section 19-15 would prohibit camping on public property daily between the hours of 7:00 a.m. to 9:00 p.m.
• By doing so, this would bring the ordinance in line with Martin v. City of Boise by recognizing the fundamental right for unsheltered individuals to sleep, while maintaining the County’s ability to prohibit prolonged occupation of public property, large accumulation of items and debris, and the establishment of large encampments.
2. Impose complete prohibition on camping on or near certain types of properties that are particularly sensitive or inconsistent with such use:
a. Inside public buildings, fenced areas attached to public buildings, or within 25 feet of an entrance or exit to a public building;
b. Within 50 feet of a residence;
c. Within 100 feet of a playground, school, daycare, or other licensed childcare facility;
d. Within any County park (i.e., leave Section 20-25 unchanged);
e. Within any public highway, road, or street;
f. Within any public right-of-way, where the camping obstructs the free passage of persons, bicycles, or vehicles;
g. Within a “Very High Fire Severity Zone” as determined by the State Fire Marshall or local agency in accordance with Government Code sections 51178 and 51179;
h. Within 150 feet of the high water mark of the waters of the state or within any area designated as a Regulatory Floodway on the FEMA maps; and
i. Within 25 feet of a facility that provides shelter, safe sleeping, or safe parking to homeless persons, or that serves as a homeless services navigation center.
In addition, for the high fire severity zones and areas near a waterway, the proposed amendments require that an individual first be requested by a peace officer to move on unless signage is already posted in the area warning of the prohibition on public camping at that location.
Additional Changes Recommended for Re-Introduction (Version 2)
Attachment C includes a redline of the additional revisions made from the version of the ordinance introduced at the Board meeting on September 27, 2022. The changes include:
1. Reduce the area where camping is prohibited near the entrance or exit to a public building from 50 to 25 feet;
2. Reduce the area where camping is prohibited near a residence from 100 to 50 feet and remove the alternative prohibition on camping within 100 feet of a “residential zoning district”; and
3. Add a prohibition on camping within 25 feet of a facility that provides shelter, safe sleeping, or safe parking to homeless persons, or that serves as a homeless services navigation center.
Recommendation
Two versions of the amendments are presented for your Board’s consideration and adoption. Version 1 is the ordinance verbatim as introduced at the Board meeting on September 27, 2022. Version 2 includes additional revisions from Version 1 as described above to provide more available public property where camping would be permitted at night to ensure sufficient property is available for individuals within the unincorporated areas of the County that do not otherwise have a place to sleep. (See e.g., Aitken v. City of Aberdeen, 393 F. Supp. 3d 1075, 1083 (W.D. Wash. 2019) (analyzing whether City’s camping ordinances left “ample space for Plaintiffs to camp on certain parts of the sidewalk” and whether “population can be accommodated by the spaces the City identified) For these reasons, Staff recommends that your Board adopt Version 2 (Attachment B).
Additional Options: Beyond the above recommendations, there are various other types of properties that could be considered by your Board and be identified for an absolute prohibition on public camping. Other jurisdictions have prohibited camping within a certain distance of buildings or structures (general or specific types), within a certain distance of any retail or other businesses, within certain business districts or downtown corridors, or specifically identified geographic areas. Additional environmentally sensitive or fire prone areas could be identified for inclusion as well. If further areas are considered, however, the County must leave sufficient public property available for public camping to accommodate the unhoused population needing locations to camp by necessity.
It also should be noted that there are other ordinances in County Code that are not impacted by Martin and can continue to be enforced to ensure the health, safety, and welfare of the public in and around the homeless encampments, such as camping on private property, obstruction of public passages, aggressive panhandling, littering, drug and alcohol offenses, vehicle code violations, etc.
Strategic Plan:
N/A.
Prior Board Actions:
None
Fiscal Summary
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Narrative Explanation of Staffing Impacts (If Required):
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Attachments:
Attachment A. Ordinance Amending Sonoma County Code Section 19-15 (Version 1)
Attachment B. Ordinance Amending Sonoma County Code Section 19-15 (Version 2)
Attachment C. Ordinance Amending Sonoma County Code Section 19-15 (Comparison)
Attachment D. Resolution Introducing and Waiving Reading of Camping Ordinance
Maps of Waterways: On file with the Clerk of the Board
Related Items “On File” with the Clerk of the Board:
None