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Nuisances on Public Property and Public Ways

This page provides examples of local government regulation of nuisances on public property in Washington State. It is part of MRSC's series on nuisances.

Overview

Nuisances on public property and rights of way present unique enforcement issues.  For general information on nuisance enforcement, whether on private or public property, see MRSC’s Authority to Regulate and Abate Nuisances webpage. 

Although cities and counties generally have more latitude to abate nuisances on public property or right-of-way compared with private property, it is still important to follow applicable abatement procedures.  The authority to abate a nuisance comes from the police power, which is referenced in common law as well as the state constitution in Article XI, section 11:

Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.

This page addresses the specific issues relating to nuisance abatement on public property and public rights-of-way.  It summarizes common types of regulations and goes over potential legal issues associated with each.  As the page shows, jurisdictions have defined many different types of nuisances to regulate, from begging to roadway debris to obstructions in rights-of-way.  The example of begging is given particular attention.


Statutes Authorizing Cities and Towns to Abate Nuisances

  • For First Class Cities, specific powers are enumerated under RCW 35.22.280(30)
  • For Second Class Cities, specific powers are enumerated under RCW 35.23.440(10) 
  • For Code Cities, RCW 35A.21.160 provides these entities with all of the powers which any city of any class may have
  • For Towns, power to regulate nuisances are established in RCW 35.27.410

Begging and Soliciting: Legal Overview and Examples of Codes

Ordinances regulating begging and soliciting have recently become a point of particular contention among municipalities throughout the country, including in Washington.  This is because many restrictions on begging are, in essence, a restriction on a type of speech and, thus, implicate the First Amendment.  As such, these laws are scrutinized strictly by the courts, and must be well crafted to survive that scrutiny. 

Background on Begging and Soliciting Laws

Many municipalities have long had laws that have placed specific restrictions on begging or soliciting, such as laws that restricted begging by major roads, within a certain distance of an outdoor eating area or ATM, or that restricted begging at night.  Such laws have been defended on the grounds that they are “content-neutral” because they only restricted begging or soliciting in certain places or at certain times.

However, the way in which such laws are scrutinized has recently changed in light of a United States Supreme Court decision, Reed v. Town of Gilbert.  While that case was not specifically about begging, it was about a different form of speech, signs, and its holding has been understood as applying to restrictions on speech in general.  The Court in Reed held that a law is content-based anytime that it defines the regulated speech based on a “particular subject matter or by its function or purpose.”  Such content-based restrictions are presumed to be unconstitutional and are only upheld if the government can prove that it furthers a “compelling interest and is narrowly tailored to achieve that interest.” 

Changes in Washington

Recently, the Washington Supreme Court signaled a shift in how it will assess restrictions on begging and soliciting in response to Reed. In City of Lakewood v. Willis, the court assessed the constitutionality of a Lakewood ordinance that prohibited begging at on and off ramps of state highways and at intersection of major arterials roads.  The court was very clear that it viewed Reed as applying to begging laws and held that the Lakewood ordinance was content-based because it only applied to speech with a particular purpose.

In coming to this conclusion, the Willis court also highlighted a number of other courts that had addressed begging laws and stated that it was joining those courts in its rejection of Lakewood’s arguments.  This is noteworthy because the other cases it highlighted confronted various other begging restriction, some of which were much broader than the two that were examined by the Willis court. Brown v. City of Grand Junction, for instance, found unconstitutional a city ordinance that restricted begging at night, within 20 feet of an ATM or bus stop, adjacent to an outdoor patio, or within a public parking facility.

Takeaway

While the Willis court only explicitly addressed restrictions on begging next to a highway off or on ramp and begging next to arterial roads, its opinion signaled that Reed’s reach may be much broader within Washington.  Other laws that prohibit begging in specific locations or at certain times may also come under strict scrutiny.  As such, municipalities should be very careful in how they craft any ordinance that seeks to restrict begging. 

Examples of Codes Regulating Begging and Soliciting

See below for an example of begging and solicitation ordinances currently in place in Washington.  It is not clear whether these ordinances would be upheld under Reed and Willis, and are only meant as an insight into how some municipalities are currently addressing begging.


Pedestrian and Vehicular Interference

Narrowly drafted pedestrian and vehicular interference ordinances are not as problematic as begging prohibitions under the First Amendment because they regulate conduct (blocking users of the right of way) instead of expression.  Some ordinances also include prohibitions on “aggressive begging,” which often includes an element of intent to intimidate.    

Examples of Codes Regulating Pedestrian and Vehicular Interference

  • DuPont Municipal Code Sec. 9.17.030 – Defines obstructing pedestrian or vehicular traffic as walking, standing, sitting, laying, or placing an object in such a manner as to block passage by another person or driver of a vehicle or to cause another person or driver of a vehicle to take evasive action to avoid physical contact. 
  • Mount Vernon Municipal Code Sec. 9.21.045 – Prohibits entry into a “prohibited roadway” to deliver, receive, or exchange goods and services or distribute publications to the occupants of vehicles unless the vehicle is legally parked.  Definition of “prohibited roadway” includes medians but excludes all sidewalks and curbs 
  • Pierce County Code Ch. 9.62 – Prohibits the solicitation of occupants of vehicles on public roadways
  • Seattle Municipal Code Sec. 12A.12.015 – Pedestrian interference is defined as intentionally obstructing pedestrian or vehicular traffic or aggressively begging in a public place

Camping on Public Property

Many jurisdictions pass ordinances that make it illegal to camp overnight on public property.  While ordinances prohibiting camping on public property are valid, government entities should be mindful that individuals may have constitutional privacy rights in the contents of their campsite.  See, e.g., U.S. v. Sandoval, 200 F.3d 659 (9th Cir. 2000).

Examples of Codes that Prohibit Camping on Public Property

Some codes broadly prohibit camping on public property while others make a distinction between camping on parks or streets using a tent and/or camping in a parked RV, car, or trailer.


Cruising and Street Racing

A number of cities have adopted anti-cruising ordinances that prohibit individuals from repeatedly driving on certain streets at certain times. Not only have such ordinances been upheld by the courts, they have also been effective in some cities. Anti-cruising ordinances help to alleviate traffic congestion by dispersing the people who want to cruise, thus lessening the likelihood of violence and antisocial behavior. 

Examples of Codes that Prohibit Nuisances Related to Cruising and Street Racing

Care should be taken to avoid passage of an overly broad cruising ordinance that might invite a legal challenge. Not all cities have conditions justifying such ordinances.


Debris on Roadway

Under state law (RCW 46.61.655), vehicles carrying items must either be constructed or loaded as to prevent any of its load from dropping, sifting, leaking, or otherwise escaping, or requires the vehicle be covered. This has also been adopted by reference in the Model Traffic Ordinance.

Examples of Codes that Prohibit Debris on Roadway

The codes below specifically regulate roadway debris.

  • Cheney Municipal Code Ch. 12.40 – Covers transportation of debris, depositing debris, and construction site debris on public property or private roads
  • Marysville Municipal Code Ch. 12.40 – Requires cleanup of dirt, mud, rocks, vegetation, grease, oil or other foreign material or substance deposited, stored, abandoned, discharged, or spread on any public street, alley, sidewalk, or other public right-of-way in the city
  • Seattle Municipal Code
    • Sec. 11.74.075 – Prohibits drivers from dumping loads onto an alley or street without first obtaining a permit
    • Sec. 11.74.160 – Prohibits the operation of a vehicle capable of dropping obstacles or debris
    • Sec. 11.74.170 – Requires drivers to clean up any debris that has fallen or escaped during transit 

Obstructions in Rights-of-Way

For many local governments in the state, obstruction of a public right-of-way (e.g., roadways and sidewalks) can also be caused by crowds, the private property of an evicted tenant, and shopping carts.


Crowds​

Nuisances related to crowds can be defined as the obstruction of access to public areas like streets or sidewalks.

Examples of Codes that Prohibit Nuisances Related to Crowds

  • Auburn Municipal Code Ch. 12.32 – Prohibits sidewalk obstructions and reserves sidewalk use for pedestrians and bicycles
  • Bellingham Municipal Code Sec. 10.28.020(S) – Prohibits property abutting a public street or sidewalk to be used in such a way that it causes large crowds of people to gather, obstructing traffic and free use of the streets or sidewalks
  • Everett Municipal Code Ch. 13.12 – Allows for the following to be placed on sidewalks with city approval: trees/shrubs in containers, trash cans, telephone boots, special-event display merchandise, temporary restaurant seating, and mobile food carts
  • Lewis County Code Ch. 8.35 – Defines any structure, device, or natural or artificial thing that threatens roadway, endangers persons, or obstructs vehicles as a public nuisance
  • Mercer Island Municipal Code Sec. 8.24.020 – F defines sidewalks in need of repair as a nuisance while H defines certain obstructions and excavations as a nuisance street/sidewalk obstruction more broadly
  • Seattle Municipal Code Ch. 15.52 – Requires a permit for events when anticipated crowds might obstruct the normal and customary use of a park or public place.
  • Spokane Municipal Code Ch. 12.02 – Prohibits obstruction caused by vegetation, sidewalks, fences, hedges, and trees, as well as unpermitted skywalks, underground utility vaults, and other street excavation work
  • Tacoma Municipal Code Ch. 8.60 – Restricts unlawful assembly in public streets and sidewalks when the assembly obstructs, interferes, or prevents unobstructed use by other members of the public

Personal Property from Evictions Placed on Public Property

State law RCW 59.18.312(5) gives landlords the ability to enter and take possession of any personal property an evicted tenant has left behind, after the execution of a writ of restitution by the sheriff.  In some cases the landlord has the option of placing the tenant’s belongings on the “nearest public property” (i.e., the right-of-way).

Examples of Codes Regulating Placement of Personal Property from Evictions

Generally, these codes establish a time in which personal belonging becomes defined as a nuisance that require abatement, allowing the evicted tenant sufficient time to retrieve his/her items.

  • Lewis County Code Sec. 1.22.040 – Provides evicted tenant 24-hour notice to remove property until property is deemed a nuisance. Landlord has 48 hours from notice to remove property or county abates nuisance and bills costs to landlord
  • Kitsap County Code Sec. 9.56.090 – Provides evicted tenant 24-hour notice to remove property until property is deemed a nuisance
  • Tacoma Municipal Code Sec. 8.30.055 – Covers all abandoned property on private property and public right-of-way, including evictions, and provides 48 hours to remove it before city abates it

Abandoned Shopping Carts

State law prohibits individuals from removing a shopping cart from the parking area of a retail establishment (see RCW 9A.56.270).

Examples of Codes that Prohibit Abandoned Shopping Carts

The following codes provide further regulation on shopping cart containment and removal of abandoned carts.

  • Auburn Municipal Code Ch. 8.18 – Requires shopping carts to have permanent sign identifying owner and provides method of notification of owner; also provides for disposition of carts if not claimed with 14 days
  • Bellevue Municipal Code Ch. 9.28 – Makes the removal of shopping cart without permission a violation and provides penalties
  • Renton Municipal Code Ch. 6-27 – Requires owners who provide shopping carts to develop, implement, and comply with the provisions of a written Shopping Cart Containment and Retrieval Plan; provides exemptions.
  • Yakima Municipal Code Ch. 6.27 – Requires identification of carts, provides retrieval procedures (may require fees), and disposal procedures if cart not claimed within 7 days

Faulty Security Systems

False alarms take up the time and energy of emergency personnel who may be needed to respond to a real emergency. The Alarm System and False Alarms webpage provides sample false alarm ordinances that jurisdictions have adopted to increase awareness and accountability of alarm owners. 


Last Modified: September 29, 2017