MEETING DATE:
JUNE 25, 2024
SUBJECT:
Title
ORDINANCE NO. 2024-1546, AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN MARCOS, CALIFORNIA, ADDING CHAPTER 10.33 TO THE SAN MARCOS MUNICIPAL CODE PERTAINING TO ENCAMPMENTS ON CITY PROPERTY, AND AMENDING SAN MARCOS MUNICIPAL CODE SECTION 9.04.070
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Recommendation
Recommendation
INTRODUCE (First Reading) Ordinance 2024 - 1546, an Ordinance adding Chapter 10.33 to the San Marcos Municipal Code pertaining to encampments on City property, and amending Section 9.04.070 (“Recreational Activities”).
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Board or Commission Action
Not Applicable
Relevant Council Strategic Theme
Quality of Life
Executive Summary
The City has seen a marked increase in persons erecting encampments on property owned or controlled by the City in recent months. These encampments present risks to the life, health, and safety of those using them, as well as to others in the City. In addition, they pose risks of damage to certain environmentally sensitive areas. The use of these properties for camping or storage of camping-related items also inhibits the rights of others to use the areas as they are intended. In response, City staff has prepared the proposed Ordinance which adds, amends, and repeals certain sections of the San Marcos Municipal Code in order to protect the life, health, and safety of the City’s residents and preserve its natural resources, while balancing the rights and needs of its unsheltered population.
Discussion
Legal Backdrop
The legal landscape with respect to unsheltered populations has changed dramatically over the past several years, and even as recently as the last two weeks. This is due in large part to two decisions by the Ninth Circuit Court of Appeals: Martin v. Boise (Idaho, 2018) and Johnson v. City of Grants Pass (Oregon, 2022). These decisions are discussed in brief below.
a. Martin v. Boise
The Martin v. Boise case challenged the City of Boise’s enforcement of its Camping and Disorderly Conduct Ordinances against persons experiencing homelessness-those who need to sleep in public in the absence of adequate housing or shelter. In 2018, a panel of the 9th Circuit held that “as long as there is no option of 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.” Following that ruling, the City of Boise petitioned the entire 9th Circuit to rehear the case (“en banc”), which was rejected. Boise then asked the Supreme Court to hear the case and in 2019, the Court rejected that request, thereby affirming that within the 9th Circuit, “the Eighth Amendment preclude[s] the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter.”
b. Johnson v. Grants Pass
Post Martin v. Boise, the City of Grants Pass, Oregon faced a challenge to its ordinances which prohibited camping on public property or parking overnight in city parks. The ordinances provided for civil citations and fines for enforcement as to initial violations, before resorting to criminal sanctions and potential imprisonment for subsequent violations. The ordinances included verbiage banning individuals from using forms of protection from the elements, such as sleeping bags or other bedding materials. In 2022, a panel of the 9th Circuit barred the city from enforcing the ordinances against involuntarily homeless persons, finding that enforcement would constitute cruel and unusual punishment under the Eighth Amendment. The court further iterated, "Our decision reaches beyond Martin slightly" in that ‘"sleeping” in the context of Martin includes sleeping with rudimentary forms of protection from the elements." The court also found extended the Boise limitations beyond just criminal enforcement to include civil penalties. This case was appealed to the United States Supreme Court.
c. U.S. Supreme Court Decision
On June 28, 2024, the U.S. Supreme Court issued its opinion on the Grants Pass appeal, reversing the lower court ruling. The Court determined that the enforcement of generally applicable laws regulating camping on public property did not constitute cruel and unusual punishment under the Eighth Amendment. In considering the enforcement scheme employed by Grants Pass (civil fine, order of temporary exclusion from city parks, criminal punishment if order violated), the Court found that none of these punishments qualified as cruel or unusual. While noting that the decisions of Boise and Grants Pass were well-intentioned, it acknowledged that those decisions had paralyzed local policy-making because of the risk of litigation and the unpredictability of its outcome. The Court recognized the complexities surrounding homelessness, its causes, and potential solutions. It determined that the solutions were not rooted in the Eighth Amendment and not properly left to federal judges to solve but, rather, to the American people. Accordingly, the limitations on camping ordinances that arose out of the Grants Pass decision are no longer in effect.
Factual Background
Since the Boise and Grants Pass decisions, unsheltered populations have continued to increase, resulting in conditions that create unsafe and blighted areas in many cities. According to the 2023 Annual Homelessness Assessment Report to Congress, California is home to over 120,000 unsheltered persons, which is approximately 49% of the entire unsheltered population in the country. This represents a 5.8% increase year-over-year, and a 30.5% increase since 2007. Locally, the unsheltered population grew year-over-year in the County by 18% from 2023 to 2024. In San Marcos, the unsheltered point in time count went from two to 35 in the last year.
The City has been experiencing the impacts of the increased unhoused population within its boundaries. For example, there has been a marked increase in calls for service due to illegal encampments, illegally parked vehicles, and related health and safety issues. Examples of these are detailed below.
Motor Home and RV Parking
During the period January 9th through May 8th of this year, the City has received 84 complaints related to RVs or motor homes parked on City streets or other public property. At least 75% of those reported that individuals were living in the vehicles and, in many cases, the vehicles are reported to have been parked for weeks or months at a time. Some of the complaints included, but were not limited to, reports of:
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(i) |
Dumping waste into storm drains; |
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(ii) |
Storing human waste in buckets; |
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(iii) |
Using water and storm water prevention materials from neighboring properties, without permission; |
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(iv) |
Leaving pets unattended or off-leash; |
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(v) |
Accumulating trash and/or personal belongings in adjacent areas, impeding access to sidewalks and other public property; |
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Camping near parks; |
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Impeding the flow of traffic and access by emergency vehicles; |
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Running power cords from RV to nearby property; |
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Operating repair business and/or using power tools near campers; |
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Yelling at or otherwise intimidating other persons in the area; |
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Preventing others from using parking spaces; and |
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Disturbing the peace in neighborhoods with loud arguments. |
City staff members have been engaged in code enforcement activities related to a number of the above issues, including the dumping of human waste into City storm drain facilities, and power washing of such effluent to remove evidence of the same. RVs and motor homes have also noticeably discharged other substances including, but not limited to oil, onto the roadway, which fluids will run into the storm drains during the next rain event. A summary of reported incidents, including some sample photographs, is included as an attachment to this agenda packet.
Calls for Service to San Marcos Fire Department
The City’s Fire Department has also seen a significant uptick in service calls related to the unsheltered population. For example, during 2020, their total calls for service related to this population was 190. In each of the last three years, the number has been at 288, or above, spiking in 2023 at 331. The total calls during the period January 1, 2020 through December 31, 2023, included 30 calls relating to fires, 657 rescue and EMS calls, 159 service calls, and 244 good intent calls. A chart summarizing this information is included as an attachment to this agenda packet.
Three recent incidents underscore the dangers posed by illegal encampments. The first occurred on May 14, 2024. Fire personnel responded to a smoke check call behind 150 Valpreda Road. Upon arrival, they found a smoldering tree trunk and rubbish fire in a known transient encampment area. They were required to access the incident through a chain link fence to extinguish the fire and to overhaul the tree trunk. Personnel from the Fire Department and from the San Diego County Sheriff’s department have seen members of the unsheltered population frequent this Creek bed, despite the posting of the area with No Trespass signage.
The second incident occurred on June 1, 2024 in the Bennett underpass. The area has been utilized by unsheltered individuals and has been the site of dumped trash and old mattresses. A nearby resident reported that there was a fire in the area and burned items were left in the gutter. Pictures of these fire incidents are included with the attachment to this agenda report.
The third incident involved a vehicle fire at the intersection of Capalina Road and North Pacific Street. Upon arrival, Fire Department personnel encountered a 1976 Chevy Blazer. The fire was extinguished with no injuries or damage. The owner of the Chevy Blazer stated he had been working on his vehicle, and when he attempted to start it, fire broke out in the engine compartment, and then spread to the rest of the vehicle. The vehicle owner has been living in a motorhome parked adjacent to the area on North Pacific Street.
As noted above, the Fire Department has responded to over 30 calls relating to fires for the three-year period relating to unhoused persons. These fires were in or around the watershed area, which is densely vegetated, and/or located within, adjacent to, or near high fire severity zones.
Proposed Municipal Code Amendments To Address Encampments on City Property
Since the decisions in Boise v. Martin and Grants Pass, municipalities have been struggling to balance the needs of their unhoused populations with their duty to protect the health, safety, and welfare of their residents, in a legally compliant way. Some local agencies have begun to adopt ordinances limiting, and in some cases banning, encampments on public property. Specifically, the cities of Escondido, National City, Poway, San Diego, and Santee have adopted ordinances banning camping in certain sensitive locations, or when the cities can offer alternative shelter. The Supreme Court decision in Grants Pass affords cities more leeway in adopting such ordinances by lifting the previous ban on their enforcement.
The proposed ordinance presented for your consideration was loosely modeled on the ordinances adopted by other local agencies, with modifications to address the specific needs of San Marcos, and provides broader protections based on the Supreme Court’s recent decision. The ordinance will necessitate some amendments to other Municipal Code sections. The proposed ordinance and amendments are summarized below.
Proposed New San Marcos Municipal Code Chapter 10.33 - Encampments on City Property
To address the increase in encampments throughout the City, and the health and safety issues that arise from such occupations of the public rights-of-way and City property, staff is recommending that a new Chapter be added to the San Marcos Municipal Code (“SMMC”). Chapter 10.33 would be entitled “Encampments on City Property” and would regulate the establishment of encampments on City property. Based on the Supreme Court’s decision overturning Grants Pass, the ordinance is crafted to prohibit camping on City-owned or controlled property, irrespective of the availability of shelter alternatives. The draft Chapter 10.33 is included as an attachment to this agenda packet, as well as being included within the proposed Ordinance. If adopted, it would:
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Prohibit anyone from camping, erecting an encampment or other structure, driving or parking, digging, or storing items in any waterway or along its banks; |
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Ban camping and encampments on all public property owned or controlled by the City, including streets, rights-of-way, City easements, and open space; |
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Provide that violations of Chapter 10.33 would constitute misdemeanors and may be prosecuted under SMMC section 1.12.010; and |
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Set forth procedures for noticing, removing, and storing personal property that is removed from public property pursuant to the Chapter. |
Proposed SMMC Amendments
Proposed amendments include the adoption of the new SMMC Chapter 10.33, and the amendment of SMMC Section 9.04.070 to remove references to SMMC sections 12.20.120 through 140, which are being deleted in another ordinance being proposed for City Council consideration at the June 9, 2024 meeting, as removal of those sections from Chapter 12.20 are recommended whether or not said other ordinance is adopted by the City Council.
Adoption of the proposed Ordinance included in this agenda packet would enact SMMC Chapter 10.33, and amend SMMC section 9.04.070.
Environmental Review
The proposed Ordinance has been reviewed for compliance with the California Environmental Quality Act (CEQA). It is recommended that the Council determine that this is not a project as defined in Section 15378 of the CEQA Guidelines because there is no potential for it to result in a physical change in the environment, either directly or indirectly. Even if the proposed Ordinance were to be considered a project subject to CEQA, it would be exempt from CEQA pursuant to Section 15061(b)(3) of the CEQA Guidelines because it can be seen with certainty that there is no possibility that the proposed Ordinance would have a significant effect on the environment.
Fiscal Impact
In the event the Council introduces and adopts the proposed Ordinance, implementation of its provisions would result in increased costs for signage, monitoring, clean-ups, and enforcement activity, the scope and extent of which are not yet currently known. In the event applicable budget line items are insufficient and enforcement activity is desired, staff would return with modifications as deemed appropriate and necessary.
Attachment(s)
Summary of RV and Motor Home Encampment Reports and Related Photos
Charts Depicting Fire Department Service Calls 2020-2023 and Photos of Recent Fire Incidents
Proposed New San Marcos Municipal Code Chapter 10.33 (Encampments on City Property)
Proposed redlined revisions to San Marcos Municipal Code Chapter 9
Proposed Ordinance 2024-1546
Prepared by: Jill D. S. Maland, Assistant City Attorney
Reviewed by: Helen Holmes Peak, City Attorney
Reviewed by Michelle Bender, City Manager