What Are Local Governments Doing in Response to Martin v. City of Boise?

In September 2018, a panel of the Ninth Circuit decided Martin v. City of Boise. The court ruled that enforcement of ordinances that prohibit sleeping or camping on public property against homeless individuals is unconstitutional when those individuals do not have a meaningful alternative, such as shelter space or a legal place to camp.

The Ninth Circuit subsequently amended its opinion slightly in April 2019 but denied a petition for rehearing by the full court. In December 2019 the US Supreme Court denied a petition for review filed by the City of Boise, which means that Martin is binding authority in the Ninth Circuit (which includes Washington) for the foreseeable future.

Approximately 18 months have passed since the initial decision and I thought it would be interesting to see how Washington local governments are adjusting to it. Not surprisingly, there are a wide range of responses, and this blog post will look at three jurisdictions.

City of Burien — Addressing Camping in Parks

In May 2019, the City of Burien adopted a four-month pilot program to address camping in city parks. The program includes the following elements:

• The Navigation Team (consisting of staff, police, and social service providers) maintains a list of local shelters that provide emergency housing for the homeless and verifies availability at the time they engage someone in need.
• When the Navigation Team encounters people camping in public parks, they first try to offer services.
• The Burien Police Department takes steps to ensure that enclosed tents are not set up in parks.
• Individuals who have been asked to remove their tents and belongings will not be allowed to set up camp in another park or in a different part of the park.
• People who remain in parks after closure (dusk) will be asked to voluntarily remove their belongings and leave. They will be provided information and transportation to available shelters. If shelter is available and they refuse to leave the park after park closure, they may be subject to arrest (BMC 7.30.230 and BMC 7.40.020).

The program, which was subsequently made permanent in September 2019, is part of Burien’s larger homelessness response.

City of Seattle — Expanding Options for Tiny House Villages and Authorized Encampments

On February 18, 2020, the Seattle City Council adopted an ordinance (summarized here) that significantly increases the number of encampments allowed in Seattle and streamlines the processes by which encampments are approved. Among other things, the ordinance:

• Exempts encampments on a religious organization’s property from land use permitting requirements and removes the requirement that encampments be accessory to an existing use;
• Modifies the requirement that transitional encampments be located at least one mile from any other authorized transitional encampment;
• Allows transitional encampments to be located in residential zones;
• Allows interim use permits for a period of up to one year in all zones, including residential, with unlimited renewals subject to compliance with applicable regulations; and 
• Increases the city-wide limit on encampments from three to forty.

City of Spokane Valley — Post-Martin Camping Ordinance

The City of Spokane Valley adopted an ordinance regulating camping on public property in November 2019. The staff report addresses Martin v. City of Boise and notes that the ordinance suspends enforcement during times the city is not able to verify the availability of shelter beds. Although there are no homeless shelters in Spokane Valley, the city partners with Spokane County to provide funding for regional shelters. The report notes the logistical issues associated with verification of available shelter space and the need to provide transportation of individuals and their belongings to regional shelters.

The ordinance allows for immediate removal of personal property, camping facilities, and paraphernalia when an unauthorized encampment is located on park property, city hall, or a location that results in a significant risk of harm to any person. In all other cases, the city will post notice at least 48-hours in advance that the personal property/camping equipment is subject to removal. In either case, the city holds personal property for 60 days and provides notice of where personal property removed from an encampment may be claimed.

There are many cities and counties in Washington that are still working on how best to respond to Martin. Each jurisdiction faces a unique blend of local circumstances, policy priorities, and resource availability. The examples described here are likely to be useful as discussion points rather than solutions.  

Still Looking for Solutions?

The Martin case is focused on enforcement, but that is only one piece of a complicated puzzle. MRSC recently updated its Homelessness and Housing Toolkit for Cities with new approaches to addressing homelessness and creation of affordable housing.