Novato has put in place new restrictions that would restrict where homeless people can camp on public land in the city.
The city council unanimously voted on Tuesday for proposed ordinances on bar camping and related activities such as fires near facilities classified as “critical” by the city, in areas with high forest fire risk, as well as streams and creeks. Camping in public spaces is also prohibited, except between 9:00 p.m. and 7:00 a.m.
The Council will vote on the final approval at its meeting on June 8th.
The proposed rules are a direct response to a camp in Lee Gerner Park, one of several local camps that grew during the coronavirus pandemic and created controversy among residents concerned about their safety.
Prosecutor Jeff Walter told the city council that the rules strike a balance between addressing residents’ concerns and complying with federal law that allows sleeping in public spaces when beds are not available. The regulations would not impose blanket restrictions on camping in public areas, but aim to protect facilities and waterways from potential risks such as fire and impact on the habitat.
“The focus here is not only on removing people from certain areas because they are dissatisfied with their behavior,” Walter told the council, “but it is about what their behavior produces.”
A regulation prohibits camping, camping supplies, the occupation of tents and related accommodations, and the storage of personal property on or within 50 feet of areas classified as “critical infrastructure” by the council. What is classified as critical will be decided by the Council at the meeting on June 8th. Options that may be considered include government buildings, schools, hospitals, medical buildings, communications equipment, bridges, roads, levees, railroad tracks, water sources, electrical wiring, daycare centers, and playgrounds, among others. The second ordinance would apply similar camping restrictions within 50 feet of either side of a river bank or bed.
Some local residents and council members asked whether the camping ban could also apply to areas near commercial properties such as restaurants and grocery stores, as well as hiking and biking trails.
While city officials are considering these options, city administrator Adam McGill tried to soften expectations.
“We have to be careful not to go too far,” said McGill.
That’s because of a landmark federal court ruling in the Martin v Boise case. The 9th US Court of Appeals ruled in September 2018 that local governments must not prohibit anyone from sleeping on public land if they do not have enough shelter. Such prohibitions, the court ruled, would essentially prohibit anyone from sleeping, thus constituting a form of cruel and unusual punishment in violation of the Eighth Amendment to the Constitution.
“Under Boise, we need to allow people to legally sleep, sit, etc. when there are no shelters,” said McGill.
However, the ruling left the door open for local governments to enact appropriate camping regulations as long as they don’t punish anyone for not having the means to sleep in a private room, Walter said.
San Rafael-based defense attorney Charles Dresow questioned the legality of Novato’s proposal.
“It is unlikely that this proposed regulation will pass the constitutional challenge,” said Dresow. “The definition of critical infrastructure contained in the regulation is so widespread that the city council can declare almost any property or area within the city limits as critical infrastructure when it is passed.”
“Government agencies are not entitled to label anything as critical infrastructure if it is not a definition other than their own, but merely to serve their political goals of removing campsites and the homeless from the public eye,” he said. “The definition of the critical infrastructure must be specified before the regulation is passed.”
In addition to jurisprudence, the U.S. Centers for Disease Control and Prevention issued guidelines last year urging local governments not to uproot homeless camps as it could spread the coronavirus. The combination of these two restrictions has led the city not to remove the camp in Lee Gerner Park.
Attempts to ban daytime camping in public areas and move a homeless camp from Dunphy Park to Marinship Park in Sausalito were temporarily halted earlier this year by a federal judge who cited federal coronavirus guidelines on such camps. This week the judge allowed Sausalito to proceed with the move but continued to block enforcement of a day camping ordinance.
McGill said the judge’s decision did not affect Novato’s proposed camping rules for the day.
“The prosecution has been reviewing the Sausalito case, which is closely focused on its specific problems and responses,” McGill wrote in an email last week. “We do not believe that Sausalito’s decision will affect our proposed regulations, which we believe are compatible with Martin v Boise’s case law.”
To avoid a similar challenge to the one in Sausalito, Novato’s proposal includes certain triggers to determine when the regulation will take effect. The first is when the federal camp’s guidelines are repealed. The second option is for Marin County to be downgraded to yellow as part of California’s Coronavirus Reopening Program when 90% of the county’s residents ages 16 and older are fully vaccinated and vaccinations are available to homeless residents.
Novato Police Sgt. Alan Bates said that a mobile vaccination station has been set up twice in Lee Gerner Park. He estimated that around 20% of the residents there were fully vaccinated.
Based on the state’s plans to lift its coronavirus reopening system from June 15 and current vaccination rates in Marin, the city expects the camping restrictions to go into effect on July 9, McGill said.
Jason Sarris, one of the residents of Lee Gerner Park, told the council that the ordinance was tantamount to sweeping the park of the homeless residents, but not offering them an alternative location. City officials denied this assessment.
“That is wrong,” Sarris told the council. “This is a social problem. This is a humane problem. You can’t just sweep us without giving us an alternative. We will fight this in court if we have to. “
District officials do not support the creation of a makeshift camp for the homeless. Instead, they plan to continue to focus their resources on connecting homeless residents to supportive housing.
Novato-based Craig McCurdy, whose optometry practice borders Lee Gerner Park, has called for stricter camping restrictions, including company setbacks.
“I would like to see our city of Novato put as much pressure on the county as possible,” McCurdy told the council. “They are the ones who need to find a temporary place for the homeless. They evade their responsibility. “
Other residents requested the complete removal of the camp in Lee Gerner Park. Melanie Swanson, who lives in Novato, said she and other residents are ready to take the issue to justice over the impact it has on Novato Creek, which runs through the park.
“There will be a lawsuit if this situation is not addressed directly,” she told the council.