New Legislation on Temporary Homeless Encampments

In the most recent session, the state legislature passed ESHB 1754, which made significant changes to statutes that limit the ability of cities and counties to regulate homeless encampments operated by religious organizations. ESHB 1754 takes effect on June 11, 2020, and imposes additional conditions on cities and counties when regulating religious organizations hosting the homeless. Cities and counties should be aware that certain portions of ESHB 1754 do not apply to local regulations that exist prior to its effective date.

Background

In 2009, the Washington Supreme Court decided City of Woodinville v. Northshore United Church of Christ, 166 Wn.2d 633, 211 P.3d 406 (2009), holding that a moratorium on temporary homeless encampments constituted a substantial burden on a religious organization’s beliefs and practices and therefore violated Article 1, Section 11 of the Washingon State Constitution. The following year, the legislature adopted ESHB 1956, creating RCW 35.21.915, (non-code cities), RCW 35A.21.360 (code cities) and RCW 36.01.290 (counties).

These statutes (which are substantially similar to each other) apply to “temporary encampments.” The statutes specify that any conditions imposed by cities and counties must be necessary to protect public health and safety and must not substantially burden the decisions or actions of a religious organization regarding the location of housing or shelter for homeless persons on property owned by the religious organization. The statutes also prohibit a municipality from requiring insurance or indemnification from religious organizations in connection with temporary encampments. They confer civil immunity on municipalities that issue permits for temporary encampments and for any conduct or unlawful activity that may occur as a result of the temporary encampment. Finally, any permit fees charged may not exceed the actual costs associated with the review and approval of the required permit applications.

ESHB 1754 — The Basics

In adopting ESHB 1754, the legislature found that facilities hosted by religious organizations serve a valuable function for the homeless, but that more specific state regulation was required. As stated in ESHB 1754 (Section 1), the legislature:

intends that local municipalities have the discretion to protect the health and safety of both residents in temporary settings that are hosted by religious organizations and the surrounding community. The legislature encourages local jurisdictions and religious organizations to work together collaboratively to protect the health and safety of residents and the surrounding community while allowing religious organizations to fulfill their mission to serve the homeless.

The legislation amends the three statutes (RCW 35.21.915, RCW 35A.21.360, and RCW 36.01.290), and since the amendments to each of the statutes are similar, any references to subsections below apply to all three statutes.

The legislation replaces the term “temporary encampments” with more specific terminology, including the following:

• “Outdoor encampment” – defined as any temporary tent or structure encampment, or both. Temporary is defined as “not affixed to the land permanently and not using underground utilities” (see subsection 6).
• “Indoor overnight shelter.”
• “Temporary small house on-site.”
• “Vehicle resident safe parking.”

The legislation also clarifies that a religious organization may host the homeless, either by itself or through a “managing agency” (defined in subsection 6), so long as the host site is owned “or controlled” by the religious organization (subsection (2)(a)).

Summarizing the regulatory restrictions on municipalities

The legislation makes many detailed changes to the statutes. A careful review of ESHB 1754 will allow the reader to fully understand its impact on municipalities, but what follows is a summary of some of the major regulatory changes:

• A municipality has the discretion to reduce or waive permit fees for a religious organization hosting the homeless (subsection (2)(c));
• A municipality may not limit the cumulative amount of time a religious organization hosts an outdoor encampment to fewer than six months during any calendar year, but the municipality can require a separation of up to three months between outdoor encampments at a particular site (subsection (2)(d));
• A municipality may not limit a religious organization’s outdoor encampment hosting term to fewer than four consecutive months (subsection (2)(e));
• A municipality may not limit the number of simultaneous outdoor encampments operating during a given period of time except when one is within 1,000 feet of another (subsection (2)(f));
• Subsection (2)(g) sets forth several limitations on a municipality’s ability to regulate vehicle resident safe parking programs;
• Subsection (2)(h) provides detailed guidance on the types of fire-safety measures a municipality may impose; and
• Subsection (2)(i) sets forth the criteria by which a municipality may regulate small houses on property owned or controlled by religious organizations.

Under subsection (7) the preceding restrictions do not affect a municipality’s regulations or agreements if those regulations and agreements:

1. Exist prior to the June 11, 2020 effective date of ESHB 1754;
2. Do not categorically prohibit the hosting of the homeless by religious organizations; and
3. Have not been found by a court to violate 42 U.S.C. §2000cc (the Religious Land Use and Institutionalized Persons Act).

In addition, any amendments to such preexisting regulations and agreements after the effective date of ESHB 1754 are not affected by the subsection (2) provisions if the amendments meet elements (2) and (3) of the subsection (7) requirements.

Understanding the relationships between the different stakeholders

The amended statutes will include several new subsections, described below.

Subsection (3) allows a municipality to require religious organizations and managing agencies to enter into a memorandum of understanding “to protect the public health and safety of both the residents of the particular hosting and the residents of the municipality.” Subsection (3) also lists a number of items that any such memorandum of understanding must include.

Subsection (4) provides that a municipality may require sex offender checks of all adult residents and guests, but that “the host religious organization retains the authority to allow such offenders to remain on the property.”

Under subsection (5), a religious organization hosting the homeless via a publicly-funded managing agency must work with the municipality to use the Washington homeless client management information system as provided for in RCW 43.185C.180.  

Subsection (9) provides that a religious organization hosting outdoor encampments, vehicle resident safe parking, or indoor overnight shelters that receive funds from any government agency may not refuse to host any resident because of age, sex, marital status, sexual orientation, race, creed, color, national origin, veteran or military status, or disability (including use of a service animal).

Subsection (10) requires a religious organization host a meeting (open to the public) prior to hosting an outdoor encampment, indoor overnight shelter, tiny houses, or safe parking program. Although the meeting is hosted by the religious organization, subsection (10)(b) sets forth certain community notice requirements that the municipality is required to meet.

Conclusion

ESHB 1754 imposes a lot more structure on the relationship between municipalities and religious organizations hosting the homeless, but regulations and agreements in existence as of June 11, 2020, might not be impacted by some of these new restrictions. Cities and counties should consult with their legal counsel for a full understanding of how this legislation impacts them.