G. Dwelling Unit Access. Individual walkways, corridors, or access balconies shall be designed to serve no more than five units. The use of long, monotonous walkways shall be avoided. To the maximum extent practicable, the entrances to individual units shall be plainly visible from nearby parking areas. Distinctive architectural elements and materials shall be used to denote prominent entrances.
H. Exterior Stairs. Exterior stairs shall be designed as simple, clean, bold projections that complement the architectural massing and form of the multifamily structure. Stairways shall be of smooth stucco, plaster, wood, or decorative wrought iron with accent trim of complementary colors to help identify them in the elevation and denote their function. Thin-looking and disproportionate, open metal, prefabricated stairs shall not be used.
I. Carports, Garages, and Accessory Structures.
1. Detached and attached garages, carports, and accessory structures shall be designed as an integral part of the architecture of projects. They shall be consistent in their use of materials, color, and design detail and compatible with the principal structures of a development. Carports may utilize flat roofs but shall not project above any exterior walls adjacent to streets, their preferred location being on the interior side of parking areas. Prefabricated metal carports shall not be used.
2. Where garages are utilized, doors shall appear set into walls rather than flush with the exterior wall. Their design shall be compatible with the architectural theme.
J. Gutters, Downspouts, and Roof Vents.
1. Gutters and downspouts shall be concealed unless designed as a continuous architectural feature.
Exposed gutters used as architectural features shall be colored to match fascia or wall material.
Exposed downspouts shall be colored to match the surface to which they are attached unless uncoated copper is used.
2. Roof vents shall be colored to match roofing materials or the dominant trim color of the structure.
Sidewall vents shall be framed in to make them an integral part of the elevation and shall be finished (stucco, etc.) consistent with the treatment of the façade. Flashing shall be obscured or coated in a manner that reduces contrast and enhances its compatibility with the adjoining roof or wall treatment.
K. Active and Passive Solar Design. Where active solar panels are used, any associated mechanical equipment shall either be placed in the attic or be pad-mounted and completely screened from view from a public right-of-way and immediately adjacent structures.
L. Mechanical and Utility Equipment. Heating, ventilation, air conditioning (HVAC) or other type of equipment are preferred to be pad-mounted on the ground. If roof-mounted equipment is proposed, then the HVAC and similar equipment must be visually and acoustically screened.
Screens shall be designed and constructed to intercept both equipment view and noise. The method of screening must be functionally and architecturally compatible with the building design in terms Item Number: 4.
of materials, color, shape, and size. Where individual equipment is provided, a continuous screen is desirable. Utility meters and equipment must be placed in locations which are not exposed to view from the street, or they must be suitably screened. All screening devices shall be compatible with the architecture and color of the adjacent structures. (Ord. 712 6-2-20; prior code § 159.04.050(6))
17.08.180 Multifamily in-fill in single-family neighborhood.
A. Intent. New in-fill multifamily projects shall be integrated into existing neighborhoods in manner that provides compatibility with adjacent structures in terms of massing, scale, and architectural treatments, and to provide for privacy.
B. Parking Setback. Parking spaces shall be set back from the right-of-way a minimum of five (5) feet and shall be buffered by landscaping and/or decorative block wall, which shall complement and extend the landscaped portion of the public parkway.
C. Architectural Compatibility. New multifamily developments in existing single-family neighborhoods shall incorporate and complement existing architectural characteristics and scale of existing development. A differing or contrasting architectural style may be appropriate if it enhances the visual environment and establishes a desirable precedent for future development. (Ord. 712 6-2-20; prior code§ 159.04.050(7))
17.08.190 Density bonus.
A. This section is intended to provide incentives for production of affordable housing, senior housing and development of childcare facilities. In enacting this section, it is the intent of the City to implement the goals, objectives, and policies of the General Plan and any applicable specific plans, to address housing needs in the community and ensure consistency between local regulations and California Government Code Section 65915 et seq. (State Density Bonus Law). This section shall apply to all zoning districts where residential development projects, including mixed-use developments, are proposed and where the applicant seeks and agrees to provide lower or moderateincome housing units or donate land to the City in the threshold amounts specified in State Density Bonus Law. This provision shall apply only to the residential component of a mixed-use project and shall not operate to increase the allowable density of the nonresidential component of any proposed project. In order to promote the construction of affordable units, density bonuses, development incentives, waivers, and parking alterations shall be granted pursuant to the provisions of this section.
B. Definitions. For the purposes of this section, unless otherwise apparent from the context, certain words or phrases used in this section are defined as follows:
1. "Applicant" means a developer or applicant for a density bonus pursuant to Government Code Section 65915, subdivision (b), of the California Government Code and subsection C of this section.
Item Number: 4.
2. “Development standard” includes a site or construction condition, including, but not limited to, a height limitation, a setback requirement, a floor area ratio, an onsite open-space requirement, or a parking ratio that applies to a residential development pursuant to any ordinance, general plan element, specific plan, charter, or other City condition, law, policy, resolution, or regulation.
3. "Housing development," means one (1) or more groups of projects for residential units in the planned development of the city. "Housing development" also includes a subdivision or common interest development, as defined in Section 1351 of the California Civil Code, approved by the city and consisting of residential units or unimproved residential lots and either a project to substantially rehabilitate and convert an existing commercial building to residential use or the substantial rehabilitation of an existing multifamily dwelling, as defined in subdivision (d) of Government Code Section 65863.4, where the result of the rehabilitation would be a net increase in available residential units.
4. “Located within one-half mile of a major transit stop” means that any point on a proposed development, for which an applicant seeks a density bonus, other incentives or concessions, waivers or reductions of development standards, or a vehicular parking ratio pursuant to this section, is within one-half (1/2) mile of any point on the property on which a major transit stop is located, including any parking lot owned by the transit authority or other local agency operating the major transit stop.
5. “Lower income student” means a student who has a household income and asset level that does not exceed the level for Cal Grant A or Cal Grant B award recipients as set forth in paragraph (1) of subdivision (k) of Section 69432.7 of the Education Code. The eligibility of a student to occupy a unit for lower income students under this section shall be verified by an affidavit, award letter, or letter of eligibility provided by the institution of higher education in which the student is enrolled or by the California Student Aid Commission that the student receives or is eligible for financial aid, including an institutional grant or fee waiver from the college or university, the California Student Aid Commission, or the federal government.
6. “Major transit stop” has the same meaning as defined in subdivision (b) of Section 21155 of the Public Resources Code.
7. “Maximum allowable residential density” means the density allowed under the zoning ordinance and land use element of the general plan, or, if a range of density is permitted, means the maximum allowable density for the specific zoning range and land use element of the general plan applicable to the project. If the density allowed under the zoning ordinance is inconsistent with the density allowed under the land use element of the general plan, the general plan density shall prevail.
8. "Qualified mobile home park" means a mobile home park that limits residency based on age requirements for housing for older persons pursuant to Section 798.76 or 799.5 of the California Civil Code.
9. "Senior citizen housing development" means senior citizen housing as defined in Sections 51.3 and
51.12 of the California Civil Code.
10. "Specific adverse impact" means any adverse impact as defined in paragraph (2), subdivision (d), of Government Code Section 65589.5, upon public health and safety or the physical environment, or on any real property that is listed in the California Register of Historical Resources, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the housing development unaffordable to low- and moderate-income households.
11. “Total units” or “total dwelling units” means a calculation of the number of units that:
Item Number: 4.
a. Excludes a unit added by a density bonus awarded pursuant to this section. b. Includes a unit designated to satisfy an inclusionary zoning requirement.
C. Qualifications for Density Bonus and Incentives and Concessions.
1. The city shall grant one (1) density bonus as specified in subsection G of this section, and incentives or concessions as described in subsection E, when an applicant seeks and agrees to construct a housing development, excluding any units permitted by the density bonus awarded pursuant to this section, that will contain at least any one (1) of the following:
a. 10 percent of the total units of a housing development for rental or sale to lower income households, as defined in Section 50079.5 of the Health and Safety Code. b. Five (5) percent of the total units of a housing development for rental or sale to very lowincome households, as defined in Section 50105 of the Health and Safety Code. c. A senior citizen housing development, as defined in Sections 51.3 and 51.12 of the Civil Code, or a mobile home park that limits residency based on age requirements for housing for older persons pursuant to Section 798.76 or 799.5 of the Civil Code. d. 10 percent of the total dwelling units of a housing development are for rental or sale to persons and families of moderate income, as defined in Section 50093 of the Health and Safety Code.
e. 10 percent of the total units of a housing development for transitional foster youth, as defined in Section 66025.9 of the Education Code, disabled veterans, as defined in Section 18541, or homeless persons, as defined in the federal McKinney-Vento Homeless Assistance Act (42 U.S.C. Sec. 11301 et seq.). The units described in this subparagraph shall be subject to a recorded affordability restriction of 55 years and shall be provided at the same affordability level as very low-income units.
f. 20 percent of the total units for lower income students in a student housing development that meets the following requirements:
i. All units in the student housing development will be used exclusively for undergraduate, graduate, or professional students enrolled full time at an institution of higher education accredited by the Western Association of Schools and Colleges or the Accrediting Commission for Community and Junior Colleges. In order to be eligible under this subclause, the developer shall, as a condition of receiving a certificate of occupancy, provide evidence to the city, county, or city and county that the developer has entered into an operating agreement or master lease with one or more institutions of higher education for the institution or institutions to occupy all units of the student housing development with students from that institution or institutions. An operating agreement or master lease entered into pursuant to this subclause is not violated or breached if, in any subsequent year, there are not sufficient students enrolled in an institution of higher education to fill all units in the student housing development. ii. The applicable 20-percent units will be used for lower income students. iii. The rent provided in the applicable units of the development for lower income students shall be calculated at 30 percent of 65 percent of the area median income for a singleroom occupancy unit type.
Item Number: 4.
iv. The development will provide priority for the applicable affordable units for lower income students experiencing homelessness. A homeless service provider, as defined in paragraph (3) of subdivision (e) of Section 103577 of the Health and Safety Code, or institution of higher education that has knowledge of a person’s homeless status may verify a person’s status as homeless for purposes of this subclause.
For purposes of calculating a density bonus granted pursuant to this subparagraph, the term “unit” as used in this section means one rental bed and its pro rata share of associated common area facilities. The units described in this subparagraph shall be subject to a recorded affordability restriction of 55 years.
g. 100 percent of all units in the development, including total units and density bonus units, but exclusive of a manager’s unit or units, are for lower income households, as defined by Section 50079.5 of the Health and Safety Code, except that up to 20 percent of the units in the development, including total units and density bonus units, may be for moderateincome households, as defined in Section 50053 of the Health and Safety Code.
2. As used in subsection (C)(1) of this section, the term "total units" does not include units permitted by a density bonus awarded pursuant to this section or any other local law granting a greater density bonus.
3. Election of Density Bonus Category. Each applicant who requests a density bonus pursuant to this section shall elect whether the bonus shall be awarded on the basis of subsection a, b, c, d, e, for g of subsection (C)(1). Each housing development is entitled to only one (1) density bonus, which may be selected based on the percentage of either very low affordable housing units, lower income affordable housing units or moderate-income affordable housing units, or the development's status as a senior citizen housing development, student housing development or qualified mobile home park. Density bonuses from more than one (1) category may not be combined.
4. Previous Density Bonuses. The density bonus provisions shall not apply to any parcel or project area which has previously been granted increased density through a general plan amendment, zone change or other permit to facilitate affordable housing.
D. Continued Affordability.
1. Prior to the issuance of building permits for any dwelling unit, an applicant shall enter into a written agreement with the city to ensure and guarantee the continued affordability of all low and very low income units that qualified the applicant for the award of the density bonus for a period of 55 years or a longer period of time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program. Rents for affordable housing units for lower income households shall be set at an affordable rent. Owner-occupied affordable housing units shall be available at an affordable housing cost. a. The terms and conditions of the agreement shall run with the land, shall be binding upon all successors in interest of the applicant, and shall be recorded in the office of the Riverside County Recorder.
b. The agreement shall also include the following provisions:
i. The applicant shall grant the city the continuing right of refusal to purchase or lease any or all of the designated units at fair market value; Item Number: 4.
ii. The deeds to the designated units shall contain a covenant stating that the applicant or the applicant's successor in interest shall not sell, rent, lease, sublet, assign, or otherwise transfer (whether voluntarily, involuntarily or by operation of law) any interest in such unit without written approval of the city, confirming that the sales price or lease/rent amount of the unit is consistent with the limits established for low- and very-low income households as adjusted by the Consumer Price Index; and iii. The city shall also have the authority to enter into other agreements with the applicant or purchases or lessees of the dwelling units as may be necessary to assume that the designated dwelling units are continuously occupied by eligible households.
2. Prior to the issuance of building permits for any dwelling unit, an applicant shall agree to, and the city shall ensure, that the initial occupant of moderate-income units that are related to the receipt of the density bonus, are persons and families of moderate income and that the units are offered at an affordable housing cost. With respect to moderate-income units, the city shall require the applicant to enter and shall enforce an equity-sharing agreement, unless it is in conflict with the requirements of another public funding source or law. The following shall apply to the equitysharing agreement:
a. Upon resale, the seller of the moderate-income unit shall retain the value of any improvements, the down payment, and the seller's proportionate share of appreciation. The city shall recapture any initial subsidy and its proportionate share of appreciation, which shall then be used within five (5) years for any of the purposes that promote homeownership as described in subdivision (e) of Section 33334.2 of the California Health and Safety Code.
b. For purposes of this subsection (D)(2), the city's initial subsidy shall be equal to the fair market value of the moderate-income unit at the time of initial sale minus the initial sale price to the moderate-income household, plus the amount of any down payment assistance or mortgage assistance. If upon resale the market value is lower than the initial market value, then the value at the time of the resale shall be used as the initial market value. c. For purposes of this subsection (D)(2), the city's proportionate share of appreciation shall be equal to the ratio of the initial subsidy to the fair market value of the moderate-income unit at the time of initial sale.
d. The applicant shall grant the city a right of first refusal to purchase any or all of the designated units at fair market value, which right of first refusal shall apply to subsequent sellers.
E. Incentives and Concessions.
1. An applicant for a density bonus may also submit to the city a proposal for specific incentives or concessions in exchange for the provision of affordable housing units in accordance with this section. The applicant may also request a meeting with the city to discuss such proposal. The city shall grant the concession or incentive requested by the applicant unless the city makes a written finding, based upon substantial evidence, of either of the following:
a. The concession or incentive is not required in order to provide for affordable housing costs or for rents for the targeted units to be set as specified in subsection D of this section (i.e., Item Number: 4.
the applicant is unable to demonstrate that the waiver or modification is necessary to make the housing units economically feasible); or
b. The concession or incentive would have a specific adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5 of the Health and Safety Code, upon public health and safety or the physical environment or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact without rendering the development unaffordable to low- and moderate-income households.
c. The concession or incentive would be contrary to state or federal law.
2. If the conditions of subsection C and subsection 1 of this subsection E are met by an applicant, the city may grant an applicant applying for incentives or concessions the following number of incentives or concessions:
a. One (1) incentive or concession for housing developments that include: At least 10 percent (10%) of the total units affordable to lower income households; or at least five (5) percent (5%) of the total units affordable to very low-income households; or at least 10 percent (10%) of the total units affordable to persons and families of moderate income in a development in which the units are for rental or sale.
b. Two (2) incentives or concessions for housing developments that include: At least 17 percent (17%) of the total units affordable to lower income households; or at least 10 percent (10%) of the total units affordable to very low-income households; or at least 20 percent (20%) of the total units affordable to persons and families of moderate income in a development in which the units are for rental or sale. c. Three (3) incentives or concessions for housing developments that include: At least 24 percent (24%) of the total units for lower income households; or at least 15 percent (15%) for very low income households; or at least 30 percent (30%) for persons and families of moderate income in a development in which the units are for rental or sale. d. Four (4) incentives of concessions if the project includes 100% affordable housing units, excluding the manager’s unit. If the project is within one-half mile of a major transit stop, the applicant shall also receive a height increase of up to three additional stories, or 33 feet. e. One incentive or concession for projects that include at least 20 percent of the total units for lower income students in a student housing development.
3. For the purposes of this section, available concessions or incentives may include any of the following:
a. A reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission as provided in Part 2.5 (commencing with Section 18901) of Division 13 of the California Health and Safety Code, including, but not limited to, a reduction in setback and square footage requirements and in the ratio of vehicular parking spaces that would otherwise be required that results in identifiable, financially sufficient, and actual cost reductions.
b. Approval of mixed use zoning in conjunction with the housing development if commercial, office, industrial, or other land uses will reduce the cost of the housing development and if the commercial, office, industrial, or other land uses are compatible with the housing Item Number: 4.
project and the existing or planned development in the area where the proposed housing development will be located.
c. Other regulatory incentives or concessions proposed by the applicant or the city that result in identifiable, financially sufficient, and actual cost reductions. d. For purposes of this section, the parking ratios set forth in Government Code Section 65915 (and subsection K of this section) for qualified affordable housing projects shall be deemed a concession or incentive available to the applicant.
4. This subsection does not limit or require the provision of direct financial incentives for the housing development, including the provision of publicly owned land, by the city or the waiver of fees or dedication requirements. Nor does any provision of this subsection require the city to grant an incentive or concession found to have a specific adverse impact.
5. The granting of a concession or incentive shall not be interpreted, in and of itself, to require a general plan amendment, zoning change, or other discretionary approval.
6. The application and review process for a proposal of incentives and concessions is set forth in subsection L of this section.
F. Waiver/Modification of Development Standards.
1. Applicants may, by application, seek a waiver, modification or reduction of development standards that will otherwise preclude or inhibit the use of density bonus units in a housing development at the densities or with the concessions or incentives permitted by this section. The applicant may also request a meeting with the city to discuss such request for waiver/modification. In order to obtain a waiver/modification of development standards, the applicant shall show that (a) the waiver or modification is necessary to make the housing units economically feasible, and (b) that the development standards will have the effect of precluding the construction of a housing development meeting the criteria of subsection (C)(1), at the densities or with the concessions or incentives permitted by this section.
2. Nothing in this subsection shall be interpreted to require the city to waive, modify or reduce development standards if the wavier, modification or reduction would have a specific adverse impact.
3. The application and review process for a waiver/modification of development standards is set forth in subsection L of this section.
4. Waiver or Reduction of Development Standards.
a. In no case may the city apply any development standard that will have the effect of physically precluding the construction of a development meeting the criteria of subsection C at the densities or with the concessions or incentives permitted by this section. An applicant may submit to the city a proposal for the waiver or reduction of development standards that will have the effect of physically precluding the construction of a development meeting the criteria of subsection C at the densities or with the concessions or incentives permitted under this section and may request a meeting with the city. If a court finds that the refusal to grant a waiver or reduction of development standards is in violation of this section, the court shall award the plaintiff reasonable attorney's fees and costs of suit. Nothing in this subdivision shall be interpreted to require the city to waive or reduce development standards if the waiver or reduction would have a specific, adverse Item Number: 4.
impact, as defined in paragraph (2) of subsection (d) of Section 65589.5, upon health, safety, or the physical environment, and for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse impact. Nothing in this subdivision shall be interpreted to require the city to waive or reduce development standards that would have an adverse impact on any real property that is listed in the California Register of Historical Resources or to grant any waiver or reduction that would be contrary to state or federal law.
b. A proposal for the waiver or reduction of development standards pursuant to this subdivision shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled pursuant to subsection C.
G. Specified Density Bonus Percentages.
Only housing developments consisting of five (5) or more dwelling units are eligible for the density bonus percentages provided by this subsection. The amount of density bonus to which the applicant is entitled shall vary according to the amount by which the percentage of affordable housing units exceeds the percentage established in subsection (C)(1).
1. For housing developments meeting the criteria of subsection (C)(1)(a), the density bonus shall be calculated as follows:
Percentage Low-Income Units Percentage Density Bonus
10 20
11 21.5
12 23
13 24.5
14 26
15 27.5
16 29
17 30.5
18 32
19 33.5
20 35
21 38.75
22 42.5
23 46.25
24 50
2. For housing developments meeting the criteria of subsection (C)(1)(b), the density bonus shall be calculated as follows:
Percentage Very Low-Income Units Percentage Density Bonus 5 20
6 22.5
7 25
Item Number: 4.
8 27.5
9 30
10 32.5
11 35
12 38.75
13 42.5
14 46.25
15 50
3. For housing developments meeting the criteria of subsection (C)(1)(c) and (e), the density bonus shall be 20 percent (20%).
4. For housing developments meeting the criteria of subsection (C)(1)(f), the density bonus shall be 35percent (35%).
5. For housing development meeting the criteria of subsection (C)(1)(g), the following shall apply:
a. The density bonus shall be 80 percent of the number of units for lower income households. b. If the housing development is located within one-half mile of a major transit stop, the city shall not impose any maximum controls on density.
6. For housing developments meeting the criteria of subsection (C)(1)(d), the density bonus shall be calculated as follows:
Percentage Moderate Income Units Percentage Density Bonus 10 5
11 6
12 7
13 8
14 9
15 10
16 11
17 12
18 13
19 14
20 15
21 16
22 17
23 18
24 19
25 20
26 21
27 22
28 23
29 24
30 25
31 26
32 27
33 28
34 29
Item Number: 4.
35 30
36 31
37 32
38 33
39 34
40 35
41 38.75
42 42.5
43 46.25
44 50
7. An applicant may elect to accept a lesser percentage of density bonus than that to which the applicant is entitled under this section. All density bonus calculations resulting in a fractional number shall be rounded upwards to the next whole number. The granting of a density bonus shall not be interpreted, in and of itself, to require a general plan amendment, zoning change, or other discretionary approval.
8. For the purpose of calculating a density bonus, the residential units do not have to be based upon individual subdivision maps or parcels. The density bonus shall be permitted in geographic areas of the housing development other than the areas where the units for the lower income households are located.
9. The application and review process for a density bonus as provided by this section is set forth in subsection L of this section.
H. Land Donation.
When a developer of a housing development donates land to the city as provided for in this subsection, the applicant shall be entitled to a 15 percent (15%) increase above the otherwise maximum allowable residential density under the applicable zoning ordinance and land use element of the general plan for the entire housing development, as follows:
Percentage Very Low-Income Units Percentage Density Bonus 10 15
11 16
12 17
13 18
14 19
15 20
16 21
17 22
18 23
19 24
20 25
21 26
22 27
23 28
24 29
Item Number: 4.
25 30
26 31
27 32
28 33
29 34
30 35
This increase shall be in addition to any increase in density mandated by subsection C, up to a maximum combined mandated density increase of 35 percent (35%), if an applicant seeks both the increase required pursuant to this subsection and subsection C. All density calculations resulting in fractional units shall be rounded up to the next whole number. Nothing in this subsection shall be construed to enlarge or diminish the city's authority to require an applicant to donate land as a condition of development.
1. An applicant shall be eligible for the increased density bonus described in this section if the city is able to make all the following findings:
a. The applicant donates and transfers the land no later than the date of approval of the final subdivision map, parcel map, or residential development application. b. The developable acreage and zoning classification of the land being transferred are sufficient to permit construction of units affordable to very low-income households in an amount not less than 10 percent (10%) of the number of residential units of the proposed development.
c. The transferred land is at least one (1) acre in size or of sufficient size to permit development of at least 40 units, has the appropriate general plan designation, is appropriately zoned for development as affordable housing, and is or will be served by adequate public facilities and infrastructure. The land shall have appropriate zoning and development standards to make the development of the affordable units feasible. No later than the date of approval of the final subdivision map, parcel map, or development application for the housing development, the transferred land shall have all of the permits and approvals, other than building permits, necessary for the development of very low income housing units on the transferred land, except that the city may subject the proposed development to subsequent design review to the extent authorized by subdivision (i) of Government Code Section 65583.2 if the design is not reviewed by the local government prior to the time of transfer.
d. The transferred land and the very low-income units constructed on the land will be subject to a deed restriction ensuring continued affordability of the units consistent with this section, which restriction will be recorded on the property at the time of dedication. e. The land is transferred to the city or to a housing developer approved by the city. The city may require the applicant to identify and transfer the land to such city-approved developer. f. The transferred land shall be within the boundary of the proposed development or, if the city agrees in writing, within one-quarter (¼) mile of the boundary of the proposed development.
g. A proposed source of funding for the very low-income units shall be identified not later than the date of approval of the final subdivision map, parcel map, or residential development application.
Item Number: 4.
2. The application and review process for a donation of land and related density bonus is set forth in subsection L of this section.
I. Child Daycare Facilities.
1. When an applicant proposes to construct a housing development that includes affordable units as specified in subsection C and includes a child daycare facility that will be located on the premises of, as part of, or adjacent to such housing development, the city shall grant either of the following if requested by the developer.
a. An additional density bonus that is an amount of square feet of residential space that is equal to or greater than the amount of square feet in the child daycare facility. b. An additional concession or incentive that contributes significantly to the economic feasibility of the construction of the child daycare facility.
2. A housing development shall be eligible for the density bonus or concession described in this subsection if the city, as a condition of approving the housing development, requires all of the following to occur:
a. The child daycare facility will remain in operation for a period of time that is as long as or longer than the period of time during which the affordable housing units are required to remain affordable pursuant to subsection D.
b. Of the children who attend the child daycare facility, the percentage of children of very low-income households, lower income households, or moderate-income households shall be equal to or greater than the percentage of affordable housing units that are proposed to be affordable to very low-income households, lower income households, or moderate income households.
c. Notwithstanding any requirement of this subsection, the city shall not be required to provide a density bonus or concession for a child daycare facility if it finds, based upon substantial evidence, that the community already has adequate child daycare facilities.
3. The application and review process for the provision of child daycare facilities and related density bonus or concessions or incentives is set forth in subsection L of this section.
J. Condominium Conversions.
Any developer converting condominiums of a housing development of five (5) units or more who seeks a density bonus, shall make such application in conjunction with its tract map application pursuant to the Subdivision Map Act, Section 9.60.260 of this code and consistent with Government Code Section 65915.5.
Any appeal of any concession or incentive or review by the planning commission or city council shall automatically require an appeal of the underlying map to that body. An applicant shall be ineligible for a density bonus or other incentives under this section if the apartments proposed for conversion constitute a housing development for which a density bonus or other incentives were provided under Government Code Section 65915.
K. By-Right Parking Incentives.
Item Number: 4.
Housing developments meeting any of the criteria of subsection (C)(1), shall be granted the following maximum parking ratios, inclusive of handicapped and guest parking, which shall apply to the entire development, not just the restricted affordable units, when requested by a developer:
1. Zero (0) to one (1) bedroom dwelling unit: one (1) onsite parking space;
2. Two (2) to three (3) bedrooms dwelling unit: one and one-half (1½) onsite parking spaces;
3. Four (4) or more bedrooms: two and one-half (2½) parking spaces.
If the total number of spaces required results in a fractional number, it shall be rounded up to the next whole number. For purposes of this subsection, a development may provide "onsite parking" through tandem parking or uncovered parking, but not through on-street parking.
If a development includes at least 20 percent low-income units or at least 11 percent very low income units and is located within one-half mile of a major transit stop, and there is unobstructed access to the major transit stop from the development, then, upon the request of the developer, the city shall not impose a vehicular parking ratio, inclusive of parking for persons with a disability and guests, that exceeds 0.5 spaces per unit.
If a development includes at least 40 percent moderate-income units and is located within one-half mile of a major transit stop, and the residents of the development have unobstructed access to the major transit stop from the development then, upon the request of the developer, the city shall not impose a vehicular parking ratio, inclusive of parking for persons with a disability and guests, that exceeds 0.5 spaces per bedroom.
For purposes of this subdivision, “unobstructed access to the major transit stop” means a resident is able to access the major transit stop without encountering natural or constructed impediments. For purposes of this subparagraph, “natural or constructed impediments” includes, but is not limited to, freeways, rivers, mountains, and bodies of water, but does not include residential structures, shopping centers, parking lots, or rails used for transit.
If a development consists solely of rental units, exclusive of a manager’s unit or units, with an affordable housing cost to lower income families, then, upon the request of the developer, the city shall not impose vehicular parking standards if the development meets either of the following criteria:
1. The development is located within one-half mile of a major transit stop and there is unobstructed access to the major transit stop from the development.
2. The development is a for-rent housing development for individuals who are 62 years of age or older that complies with Sections 51.2 and 51.3 of the Civil Code and the development has either paratransit service or unobstructed access, within one-half mile, to fixed bus route service that operates at least eight times per day.
If a development consists solely of rental units, exclusive of a manager’s unit or units, with an affordable housing cost to lower income families, and the development is either a special needs housing development, as defined in Section 51312 of the Health and Safety Code, or a supportive housing development, as defined in Section 50675.14 of the Health and Safety Code, then, upon the request of the developer, the city shall Item Number: 4.
not impose any minimum vehicular parking requirement. A development that is a special needs housing development shall have either paratransit service or unobstructed access, within one-half mile, to fixed bus route service that operates at least eight times per day.
L. Application Requirements.
1. Any applicant requesting a density bonus, incentive(s) and/or waiver(s) pursuant to State Density Bonus Law shall provide the City with a written proposal. The proposal shall be submitted prior to or concurrently with filing the planning application for the housing development and shall be processed in conjunction with the underlying application, and be subject to the following provisions:
a. Site plan showing total number of units, number and location of affordable housing units, and number and location of proposed density bonus units. b. Level of affordability of affordable housing units and proposals for ensuring affordability. c. A specific description of any requested incentives, concessions, waivers or modifications of development standards, or modified parking standards. The application shall include evidence that the requested incentives and concessions are required for the provision of affordable housing costs and/or affordable rents, as well as evidence relating to any other factual findings required under subsection E.
d. If a density bonus or concession is requested in connection with a land donation, the application shall show the location of the land to be dedicated and provide evidence that each of the findings included in subsection H can be made. e. If a density bonus or concession/incentive is requested for a childcare facility, the application shall show the location and square footage of the child daycare facilities and provide evidence that each of the findings included subsection I can be made. f. Fee. Payment of the fee in an amount set by resolution of the City Council to reimburse the City for staff time spent reviewing and processing the State Density Bonus Law application submitted pursuant to this chapter.
2. An applicant shall be ineligible for a density bonus or any other incentives or waivers under this chapter if the housing development displaces qualifying rental dwelling units, unless the development replaces those units in accordance with State law.
17.08.200 Recreational vehicle storage facilities.
Developments within the multifamily land use districts that desire to incorporate or propose recreational vehicle storage facilities will be reviewed as part of the Development Permit/Design Review and will be constructed in the following manner:
A. Individual storage spaces shall measure not less than 12 feet by 30 feet, and shall have direct access to a driveway with a minimum paved width of 25 feet.
B. Storage areas shall be paved and drained.
Item Number: 4.
C. Storage areas shall be completely screened from exterior view by a combination of landscaping, masonry walls, fences or other comparable screening devices 8 feet in height, subject to the approval of the Community Development Director. (Prior code § 159.04.030(2)(L)) D. Storage areas shall provide at least 50% spaces as covered or enclosed.
E. There shall not be any utility connections for the storage areas.
17.08.210 Single room occupancy (SRO) facilities.
Single room occupancy (SRO) facilities composed of a single structures are permitted in the R-H zone and shall conform to the following standards:
A. SROs shall be located within one-quarter (1/4) mile of a bus stop.
B. SROs shall comply with the following parking requirements: one (1) per full time SRO employee at maximum shift and one (1) per 10 occupants.
C. Secured bicycle or motorcycle spaces shall be provided at a ratio of one (1) space per 10 occupants.
D. An unrestricted drop off/pick up/loading/temporary parking area shall be provided near a single entry located adjacent to front entry/desk area.
E. Exterior common areas and/or open courtyards should be provided throughout the project. If common areas are made available, these areas should be designed to provide passive open space with tables, chairs, planters, or small garden spaces to make these areas useful and functional for the residents. Exterior common areas, including parking areas, should be illuminated with a minimum of two (2) foot-candles by low pressure sodium lighting from dusk to dawn.
F. Each SRO unit shall be provided with the following minimum amenities:
1. Adequate heating and air conditioning. (Window air conditioning units are not permitted.
Air conditioning units may be installed for each SRO unit as long as they are flush with the exterior wall surface.)
2. Kitchen sink with garbage disposal.
3. Countertop measuring a minimum of 12 inches deep and 24 inches wide.
4. Space and proper wiring for microwave and small refrigerator. (These appliances must be available for rent.
5. Pre-wired for telephone and cable television.
6. Toilet and sink in a separate room that is a minimum of 20 square feet.
7. One (1) bed space per person.
8. One (1) closet per person.
9. One (1) storage/desk arrangement per person.
10. Intercom system.
Item Number: 4.
11. Lockable door, which is a minimum of 36 inches wide, opens inward, and has a reprogrammable key card access from a secured enclosed interior hallway or common area.
G. The maximum occupancy and minimum unit size (not including toilet compartments) shall be:
1. One (1) person, 150 square feet.
2. Two (2) persons, 175 square feet.
3. The maximum unit size shall be 325 square feet.
H. Elevators shall be required on new SROs which are three (3) stories or more inheight.
I. A full common kitchen facility shall be provided on each floor if complete kitchens are not provided in each unit. Complete kitchen shall include a range stove, sink with garbage disposal, and refrigerator. Cooking appliances or facilities shall be prohibited in each SRO unit, unless approved in writing by the management staff.
J. If complete bathrooms are not provided in each unit, shared showers shall be provided at a ratio of one (1) per seven (7) occupants or fraction thereof on the same floor with interior lockable doors. These shall be directly accessible from indoor common areas or indoor hallways.
K. SRO facilities shall provide for one (1) handicapped-accessible unit for every 25 units or fraction thereof for up to 100 units and one (1) handicapped-accessible unit for every 40 units or fraction thereof for the number of units over 1,159.
L. At least one (1) janitor closet and trash chute shall be provided on each floor.
M. Common laundry facilities shall be provided with one (1) washer and one (1) dryer for every 25 units or fraction thereof for up to 100 units and one (1) washer and one (1) dryer for every 50 units or fraction thereof for the number of units over 1,159. Keyed access for tenants only shall be provided. Defensible space concepts should be employed in the design and location of the laundry facility areas.
N. Common furnished and secured indoor space shall be provided at the following ratios:
4.5 sq. ft. per 150 to 159 sq. ft. unit
4.0 sq. ft. per 160 to 169 sq. ft. unit
3.5 sq. ft. per 170 to 179 sq. ft. unit.
3.0 sq. ft. per 180 and up sq. ft. unit
“Common indoor space” means all usable interior common areas not used for circulation or service facilities. Common indoor space includes lobby, recreation room or reading room.
O. Ingress and egress shall be strictly limited and monitored by the use of a front desk area which has a full view of the entry/lobby area, is staffed 24 hours a day, seven (7) days a week, and has an operational outdoor entry intercom system with intercoms in each unit and common Item Number: 4.
areas. Entrance into the hallways of common areas where individual units are located shall be regulated by the front desk clerk through the use of “buzz-in” doors. Each resident and guest must be cleared by the front desk clerk before entry is permitted. The required secondary egress areas shall also be alarmed and monitored. A notice shall be posted in the common indoor lobby area regarding contact procedures to investigate code compliance problems. At least one (1) pay telephone, a drinking fountain and individual mail boxes shall be provided in the lobby/front desk area.
P. An adequately sized supply room shall be provided with adequate security control.
Q. SROs of any size shall be required to have fully automatic fire sprinkler systems with a central monitoring system, alarm and fire annunciator in compliance with Fire Department standards.
A manual fire alarm system shall also be installed.
R. All provisions of the Uniform Building Code and Uniform Fire Code must be complied with for hotels. However, reasonable equivalent alternatives to Fire and Building Code requirements may be utilized, if approval is obtained from the Chief Building Official and Fire Chief on a case by case, item by item basis.
S. Defensible space concepts should be employed in the design and location ofSROs.
T. Interior hallways shall be brightly lit with at least one (1) foot-candle of lighting on the floor surface.
U. All lighting fixtures shall be vandal and graffiti resistant. All ground floor exteriors and common areas, including hallways, elevators and shower facilities should be made graffiti resistant through the use of special paint, texturing, carpeting or other means as approved by the Police Department.
V. A management plan shall be submitted for review and approval, or approval with modifications as part of the Conditional Use Permit. This plan shall be comprehensive and shall contain provisions as recommended by the Director of the Department of Planning and Building Services and as adopted by the Planning Commission. The failure of the property owner to comply with the management plan may be grounds for revocation of the Conditional Use Permit pursuant to Chapter17.76.
W. Security provisions shall be provided in the following manner:
1. Video cameras equipped with infrared detectors must be strategically placed in all public areas including hallways, elevator entrances, lobby areas, garage areas, laundry areas, profit centers and other common areas, and monitored for internal security. The monitoring station may be Item Number: 4.
at the front desk. In order to provide for adequate monitoring, the location and configuration of monitors is subject to review by the Police Department.
NOTE: Infrared detectors are to activate a flashing light to help direct monitoring staff to a specific monitor and area of the facility.
2. Unit doors shall be equipped with interior locks and key card entrance systems which shall be reprogrammable.
3. Common shower area doors accessible through hallways shall be equipped with interior locks with access by a management master key. An emergency call button or pull cord shall be provided.
4. Front entry areas shall allow for adequate visual access into the front desk/lobby area by police from patrol cars.
5. Each room and all common areas shall have operable windows, except for the first floor which may be fixed, if a reasonable equivalent alternative is approved by the Chief Building Official and Fire Chief.
6. Adequate measures shall be taken to provide for vehicle parking security including limited secured access by electronic wrought iron security gates and fencing or alternative materials compatible with the architecturalstyle, night lighting and video camera monitoring. Override devices for gates shall be provided for the Police and Fire Department.
7. Pursuant to subsection 26 or 27 of this section, if “failure by management” has occurred or violations of conditions of approval are found then a private security guard may be required to be provided on a 24-hour-a-day basis. The security guard shall be fully uniformed, bonded, P.O.S.T. certified and licensed by the State to bear firearms.
8. Valid photo identification shall be required as a condition of registration. A valid photo identification is a state or official driver’s license, a military identification card, an official state identification card or a Desert Hot Springs Police Department registration card.
Management shall post in the registration area signs declaring that photo identification is required for tenants and a valid identification for their guests (photo identification is not required, unless the guest is staying overnight), and that the registration information will be presented to the Police Department upon demand.
9. Management is to keep and maintain complete and accurate tenant registration cards in duplicate, including photocopies of required photo identification. Registration information shall include the name of the occupant, unit number, rental rate, vehicle type and vehicle license number. The duplicate copies of the registration cards shall be taken to the Desert Hot Springs Police Department weekly. Registration information shall be provided to the Police Department upon demand.
X. A condition of approval of a SRO facility shall be in compliance with Desert Hot Springs Municipal Code Title 5 (Business Permit Regulations). A SRO facility with excessive drug or prostitution arrests may be brought before the City Council with advisement from Police Department for review, with notice of that review meeting being sent to the SRO facility Item Number: 4.
owner. If the City Council determines that a “failure by management” has occurred, in that a finding is made that excessive drug or prostitution arrests are occurring at the SRO facility, the Operator’s Permit issued to the SRO facility may be revoked pursuant to Chapter 17.76.
Further operation of the SRO facility shall not occur without first processing and obtaining approval for a new Operator’s Permit.
Y. Condition compliance inspections by the City may be made on an annual basis, and the costs of such inspections, up to $50,159.00 adjusted annually for inflation, shall be paid by the SRO facility operator. Any violation(s) of the conditions of approval, municipal codes, or state or federal laws or regulations pertaining to SRO facilities, as they exist at the time of the inspection, shall be corrected within the time period(s) specified in the notice of violation. If the Director makes a finding that the corrections have not been made within the specified time period(s), the Conditional Use Permit and Operator’s Permit for the SRO facility may be revoked pursuant to the provisions in Chapter 17.76.
17.08.220 Day care center design standards.
“Day care center” means establishments providing non-medical care for persons (children or adults) on a less than 24-hour basis other than “family day care homes.” This classification includes nursery schools, preschools, and day care facilities for children or adults, and any other day care facility licensed by the State. Day care centers are subject to specific reviewas specified in each individual land use district. (s The centers shall be constructed in the following manner:
A. The facility shall conform to all property development standards of the land use district in which it is located.
B. An outdoor play area of no less than 75 square feet per child, but in no case less than 450 square feet in area shall be provided. The outdoor play area shall be located in the rear (non-street) area.
Stationary play equipment shall not be located in required side and front yards.
C. A 6-foot-high solid decorative fence or wall shall be constructed on all property lines, except in the front yard. In the front yard, the open fence shall not exceed 48 inches in height, and a solid wall shall not exceed 42 inches in height. Materials, textures, colors, and design of the fence or wall shall be compatible with on-site development and adjacent properties. All fences or walls shall provide for safety with controlled points of entry.
D. On-site landscaping shall be consistent with the use and that prevailing in the neighborhood and shall be installed and maintained, pursuant to Chapter 17.56 (Landscaping Standards).
Landscaping shall be provided to reduce noise impacts on surrounding properties.
E. All on-site parking shall be provided pursuant to the provisions of Chapter 17.48 (Off-Street Parking Standards). On-site vehicle turnaround or separate entrance and exit points, and adequate Item Number: 4.
passenger loading spaces shall be provided.
F. All on-site lighting shall be stationary, directed away from adjacent properties and public rightsof- way, and of an intensity appropriate to the use it is serving.
G. All on-site signage shall comply with the provisions of Chapter 17.44 (Sign Regulations).
H. The center shall contain a fire extinguisher and smoke detector devices and meet all standards established by the City Fire Marshal.
I. A center within a residential land use district may operate up to 14 hours per day.
J. Outdoor activities may only be conducted between the hours of 8:30 a.m. to 8:00 p.m. (Ord. 679 2-19-19; prior code § 159.04.030(2)(B))
17.08.230 Day care homes in residence.
“Family daycare home” means a facility that regularly provides care, protection, and supervision for 14 or fewer children, in the provider’s own home, for periods of less than 24 hours per day, while the parents or guardians are away, and is either a large family daycare home or a small family daycare home. “Large family daycare home” means a facility that provides care, protection, and supervision for seven (7) to 14 children, inclusive, including children under 10 years of age who reside at the home, as set forth in CA Health and Safety Code Section 1597.465 and as defined in regulations. “Small family daycare home” means a facility that provides care, protection, and supervision for eight (8) or fewer children, including children under 10 years of age who reside at the home, as set forth in CA Health and Safety Code Section 1597.44 and as defined in regulations.
A small family daycare home or large family daycare home includes a detached single-family dwelling, a townhouse, a dwelling unit within a dwelling, or a dwelling unit within a covered multifamily dwelling in which the underlying zoning allows for residential uses. A small family daycare home or large family daycare home is where the daycare provider resides and includes a dwelling or a dwelling unit that is rented, leased, or owned.
Large and small family day care homes shall be subject to the following standards:
A. The facility shall conform to all property development standards of the land use district in which it is located.
B. The facility shall meet all the requirements of the Fire Marshal.
Item Number: 4.
C. The facility shall comply with the requirements of Section 17.40.180 (Noise).
D. The facility shall be subject to the signage requirements of Chapter 17.44 (Signs).
17.08.240 Golf courses and related facilities standards.
Golf course developments are subject to Conditional Use Permit review and shall be constructed in the following manner:
A. State-of-the-art water conservation techniques shall be incorporated into the design and irrigation of the golf course.
B. Treated effluent shall be used for irrigation where available.
C. Perimeter walls or fences shall provide a viewshed window design along all public rights-of-way, incorporating a mix of pilasters and wrought iron fencing or equivalent treatment.
D. All accessory facilities, including but not limited to, club houses, maintenance buildings, and halfway club houses shall be designed and located to ensure compatibility and harmony with the golf course setting, surrounding land uses and public viewsheds. (Prior code § 159.04.030(2)(E))
17.08.250 Private tennis court design guidelines.
Private tennis courts are subject to Development Permit review if the use is not an accessory use and should be constructed in the following manner:
A. Tennis courts shall not encroach into the front or side setback, or within 10 feet of rear property line.
B. Private tennis courts shall not be used for commercial purposes and shall be used only by the residents and their invited guests.
C. All tennis court fencing shall not exceed 10 feet in height as measured from the court surface and shall be screened from public view by appropriate landscaping or other on-site structures.
D. All tennis courts should be recessed four (4) feet and shall be further screened with a combination of walls, fencing, berms, or landscaping that shall be subject to review by the review authority.
E. A plan for overhead court lighting shall be subject to the review of the Community Development Director.
Item Number: 4.
F. Light standards should not exceed the following heights as measured from the court surface:
1. 18 feet with four (4) poles on each side.
2. 20 feet with three (3) poles on each side.
G. All illumination fixtures shall be energy efficient and directed inward and away from adjoining properties and public rights-of-way.
H. Hours of lighting operation should be determined during permit review; in no instance should lighting be used after 10:00 p.m. (Prior code § 159.04.050(8))
17.08.260 Senior-citizen/congregate care housing design standards.
Senior group housing developments are subject to Development Permit review and shall be constructed in the following manner:
A. A bus turnout and shelter on the on-site arterial frontage shall be dedicated if the project is located on a bus route as determined by the Director.
B. Dial-a-ride transportation shuttles shall be provided; number to be determined during project review.
C. The parcel upon which the senior group housing facility is to be established shall conform to all standards of the underlying land use district.
D. The senior housing shall conform to all local, state, and federal requirements.
E. The number of dwelling units shall be based on Table 17.08.02 (Residential Development Standards).
F. The minimum floor area for each residential unit shall be as follows:
1. Studio: 410 square feet.
2. One bedroom: 510 square feet if kitchen-dining living areas are combined; 570 square feet if kitchen-dining living areas are separate.
3. Two bedroom: 610 square feet if kitchen-dining living areas are combined; 670 square feet if kitchen-dining living areas are separate.
G. The main pedestrian entrance to the development, common areas, and the parking facility shall be provided with handicapped access pursuant to Section 17.48.
H. Indoor common areas and living units shall be handicap adaptable and be provided with all necessary safety equipment (e.g., safety bars, etc.), as well as emergency signal/intercom systems Item Number: 4.
as determined by the Director.
I. Adequate internal and external lighting including walkways shall be provided for security purposes. The lighting shall be energy efficient, stationary, deflected away from adjacent properties and public rights-of-way, and of an intensity compatible with the residential neighborhood.
J. Common recreational and entertainment activities of a size and scale consistent with the number of living units shall be provided. The minimum size shall equal 100 square feet for each living unit.
K. Common laundry facilities of sufficient number and accessibility, consistent with the number of living units and the Uniform Building Code shall be provided. The facilities shall have keyed access for tenants only.
L. Each residential unit shall be plumbed and wired for a washing machine and dryer.
M. The development may provide one or more of the following specific internal common facilities for the exclusive use of the residents:
1. Central cooking and dining room(s);
2. Beauty and barber shop;
3. Small scale convenience drug store not exceeding 1,000 square feet.
N. Off street parking shall be provided in the following manner:
1. One (1) covered parking space for each dwelling unit for the exclusive use of the senior citizen residents, plus one (1) space for every five (5) units for guest parking.
2. Three (3) parking spaces for every four (4) dwelling units for employee and guest use for congregate care residences.
3. All off-street parking shall be located within 150 feet of the front door of the main entrance.
4. Adequate and suitably striped paved areas for shuttle parking. Shaded waiting areas shall be provided adjacent to the shuttle stops.
5. Design standards relating to handicapped parking, access, surfacing, striping, lighting, landscaping, shading, dimensional requirements, etc., shall be consistent with the standards outlined in Chapter 17.48 (Off-Street Parking Standards).
6. Senior citizen/congregate care parking requirements may be adjusted on an individual project basis, subject to a parking study based on project location and proximity to services for senior citizens including, but not limited to medical offices, shopping areas, mass transit, etc.
O. The project shall be designed to provide maximum security for residents, guests, and employees.
P. Trash receptacle(s) shall be provided on the premises. Trash receptacle(s) shall comply with adopted Public Works Department standards and be of sufficient size to accommodate the trash Item Number: 4.
generated. The receptacle(s) shall be screened from public view on at least three (3) sides by a solid wall six (6) feet in height. The opaque gate shall be maintained in good working order and shall remain closed except when in use. The wall and gate shall be architecturally compatible with the surrounding buildings and structures. The receptacle(s) shall be located within close proximity to the residential units which they are intended to serve.
Q. Residential occupancy shall be limited to single persons over 55 years of age or married couples of which one (1) spouse is over 55 years of age.
R. Developers of senior citizen/congregate care housing which have a density larger than that allowed in the underlying land use district, shall provide a marketing analysis which analyzes long-term feasibility and a conversion plan of senior residential units to standard units, with a corresponding reduction in the number of units to equal the density allowed in the underlying land use district if the project is not occupied by seniors 55 years of age or older. The feasibility study and conversion plan shall not be required if the project is sponsored by any government housing agency, the City’s Development Department or a nonprofit housing development corporation. If the proposed project is to be located in a commercial land use district the conversion plan shall address the transformation of residential units into the uses allowed in the commercial districts.
S. All parts of all structures shall be within 150 feet of fire lane/paved access for single-story and 50 feet for multistory. (Prior code § 159.04.030(2)(N))
17.08.270 Parolee/probationer homes.
A. Applicability and Conditional Use Permit Requirements. A Conditional Use Permit, pursuant to Chapter 17.76 of this Zoning Code is required for the establishment of any parolee/probationer home.
B. Parolee/probationer home shall comply with the development, locational and all other applicable regulations of the Zoning District in which the use is proposed to locate. In addition, the parolee/probationer home shall comply with all of the following locational and operational standards:
1. Locational Requirements. When a Conditional Use Permit for a parolee/probationer home is requested, the parolee/probationer home shall be located:
a. A minimum of 660 feet away from any existing or proposed school, university, college, student housing, childcare facility, public park, religious institution, hospital, youth facility, or other similar uses, as reasonably determined by the Community Development Director. The distance between the parolee/probationer home and school, university, college, student housing, child care facility, public park, religious institution, hospital, youth facility or other similar use shall be measured from the closest exterior wall of the parolee/probationer home and the nearest property line included within the school, university, college, student housing, child care facility, public park, religious institution, Item Number: 4.
hospital, youth facility or other similar use, along a straight line extended between the two (2) points, without regard to intervening structures; and b. A minimum of 1,320 feet away from an existing parolee/probationer home or other similar use. The distance between parolee/probationer homes shall be measured from the closest exterior wall of one (1) parolee/probationer home and the nearest property line included within the other parolee/probationer home, along a straight line extended between the two (2) points, without regard to intervening structures. For the purposes of the locational requirements set forth in this subsection, “other similar use” or an “existing parolee/probationer home” shall also include any residential structure or unit, including any hotel or motel, whether owned and/or operated by an individual or forprofit or nonprofit entity, which houses at least two (2) parolees/probationers, in exchange for monetary or nonmonetary consideration given and/or paid by the parolee/probationer and/or any individual or public or private entity on behalf of the parolee/probationer, including alcohol and/or drug-free residential recovery home, community care facility, residential care facility and other such facilities.
2. Operational Requirements. Parolee/probationer homes shall comply with the following operational requirements:
a. Each parolee/probationer home shall be limited to a maximum number of six (6) parolees or probationers, and each bedroom in the house/home may not exceed two (2) parolees or probationers.
b. Multiple-family dwellings or apartments with less than 25 units shall be limited to one (1) parolee/probationer home.
c. Multiple-family dwellings or apartments with 25 or more units shall be limited to two (2) parolee/probationer homes.
d. Notwithstanding the definition of parolee/probationer home in Section 17.04.050 or any other provision of the Desert Hot Springs Zoning Code or the Desert Hot Springs Municipal Code, hotels and/or motels with 14 rooms or less cannot provide transient lodging services or accommodations to more than three (3) parolees during any 28 consecutive day period regardless of any length of their respective stays; and hotels and/or motels with 15 rooms or more cannot provide transient lodging services or accommodation to more than five (5) parolees during any 28 consecutive day period regardless of the length of their respective stays.
e. As determined by the Chief of Police, the property owner or a designated on-site manager must live full-time on the site of the parolee/probationer home, and the name and phone number of this individual shall be provided to the Chief of Police. f. The Police Department shall be provided with a weekly update of the names of all parolees/ probationers living at the parolee/probationer home. The updates required by this section may be in any of the following forms: in writing via electronic mail or facsimile.
C. Conditional Use Permit Findings. An application for a Conditional Use Permit for parolee/probationer home may be approved and/or modified, in whole or in part, only if the findings in Section 17.76.050 of this Zoning Code are first made. Additionally, in evaluating each request for approval of a Conditional Use Permit for a parolee/probationer home, particular Item Number: 4.
attention shall be directed to the physical relationship and proximity of the proposed use to similar uses on the same or surrounding sites, the compatibility of the proposed use with neighboring uses (i.e., schools, parks, and other similar uses) and to ensuring that the proposed use will not result in harm to the health, safety or general welfare of the surrounding neighborhood or substantial adverse impacts on adjoining properties or land uses.
D. Special Noticing Requirements. In addition to the notice and hearing requirements required for Conditional Use Permits, all property owners within 1,000 feet of the proposed parolee/probationer home, as measured from the subject property lines, shall be notified of the proposed Conditional Use Permit.
E. Public Nuisance. The establishment, maintenance or operation of a parolee/probationer home in violation of the regulations of this section or in violation of the conditions of approval of an approved conditional use permit is declared to be a public nuisance and may be abated by the City pursuant to applicable provision of the City of Desert Hot Springs Municipal Code, City of Desert Hot Springs Zoning Ordinance or any available legal remedies, including but not limited to civil injunctions.
F. Nonconforming Use. Any parolee/probationer home lawfully existing prior to the effective date of the ordinance codified in this section is a legal nonconforming use, subject to applicable nonconforming use regulations of Chapter 17.124 of the City of Desert Hot Springs Zoning Ordinance.
G. Amortization.
1. Any parolee/probationer home regulated under provisions of this section which is a nonconforming use on the effective date of the ordinance codified in this chapter shall be subject to an amortization period expiring one (1) year from the effective date of the ordinance codified in this section.
2. Amortization—Notice. The Community Development Department shall provide written notice to the property owner or operator at least 120 days prior to the expiration of this amortization period. This notice is not mandatory, and lack of notice shall not be deemed to prevent the City from initiating an action seeking declaratory or injunctive relief against the owner and/or operator of such business. However, if notice of expiration of amortization period is not given, any application by the owner or owner of the parolee/probationer home for an extension of the amortization period shall not be denied on the grounds that it is untimely.
3. Amortization—Application for Extension.
a. The property owner may file an application with the Community Development Department for an extension of the amortization period. The applicant must state:
i. Whether a previous extension has been requested and granted, as well as the date of the previous request; and
ii. The efforts that will be made to conform by the conclusion of the extended period. b. The property owner’s application shall be made in writing and shall be accompanied by the required fee as established by the City Council.
Item Number: 4.
c. Any application for an extension of the amortization period shall be made prior to the expiration of the amortization period unless the Planning Community Development Director determines that good cause exists for the late filing of the application.
4. Amortization—Decision to Grant or Deny Extension.
a. The Planning Commission shall hold a public hearing at which time it shall consider the evidence and testimony regarding the request for an extension of the amortization period. The Planning Commission shall grant or deny an application for extension of the amortization period. The Planning Commission shall make its decision within 30 days of the filing of the request.
b. In rendering its decision, the Planning Commission shall determine whether the parolee/probationer home has been provided with a reasonable amortization period commensurate with the investment involved. If the Planning Commission determines that the amortization period is not reasonable, it shall prescribe an amortization period that is commensurate with the investment involved. The burden shall be on the applicant to establish that the extension should be granted.
c. The Planning Commission shall consider the following factors in making its determination:
i. The parolee/probationer homeowner’s financial investment in the renting out rooms, units, homes to parolee/probationers;
ii. The present actual and depreciated value of business improvements; iii. The applicable Internal Revenue Service depreciation schedules; iv. The remaining useful life of the rental improvements; v. The remaining lease terms, if any;
vi. The cost of relocating the parolee/probationer home to a site conforming to the provisions of this chapter, if applicable;
vii. The ability of the parolee/probationer home and/or owner to change the use to a conforming use; and
viii. The secondary effects of the parolee/probationer home adult business on the health, safety and welfare of surrounding community, residential dwellings, businesses and/or uses if the parolee/probationer home is permitted to extend the amortization period.
d. The Planning Commission’s decision shall be in writing and shall be hand delivered or sent by certified mail to the applicant.
1. Amortization—Appeal. Any interested person may appeal the decision of the Planning Commission to the City Council in writing within 15 days after the written decision of the Planning Commission in accordance with the provisions of Sections 17.104.090 through
17.104.140 of this Zoning Ordinance.
2. Amortization—Public Nuisance. The City Council declares to be a public nuisance any parcel where a parolee/probationer home is operating and where the amortization period as a legal nonconforming use has expired and (a) no application for an extension is on file or has been granted, or (b) no application for parolee/probationer home Conditional Use Permit is on file or has been granted. (Prior code § 159.04.060)
Item Number: 4.
Item Number: 4.
The Low Density Residential Zone Height Limit.
Background.
For as long as I have lived in Desert Hot Springs (17 years) the height limit for Low Density Residential (formerly Single Family Residential) construction has been 20'
For no apparent reason the General Plan Update that took place in 2020 contained a provision that changed that height limit to 30'.
I am a fairly consistent follower of Planning Commission actions but I missed this change - perhaps because this change happened with no publicity at all and also perhaps because in 2020, I had, as had most people, the larger concern of trying to stay alive while a potentially deadly disease ravaged our community.
Anyway, however it happened this is an egregiously harmful change with little or no upside public benefit and I am asking for your assistance in correcting what happened.
The singular effect of this change is to turn our harmoniously designed one story low rise city in to a haphazard mix of one and two story houses.
This is not a hypothetical problem. It's happening. (Fig 1) And it needn't. (Fig 2)
Fortunately the mistake that our Planners made has not (yet) been extensively exploited by builders and developers so the damage will be limited if the City acts to correct the problem.
Last week the Planning Commission reviewed new Development Standards for Low Density Residential zones. I attended the meeting, and I was the only member of the public present. I spoke against this provision. I sensed there was some support on the panel for what I said but the City Attorney intervened and said (erroneously) that the development standards had to be "exactly the same" as the General Plan. Untrue; "consistent with" is the requirement.
This lead to a discussion by the panel about the difficulty of amending the plan.
In a very real sense the panel was "warned off" making this change by the staff.
What should have happened is that the commissioners should have been told you CAN make this change and later you CAN amend the General Plan to conform at the next opportunity.
Furthermore, the General Plan REQUIRES that developments should be designed to "respect adjacent existing land uses and to create aesthetically pleasing architecture... without obstructing scenic views" Item Number: 4.
Would Arguably, the development standards now in effect fail to uphold these requirements of the General Plan. See Fig 1.
Figure 1.
Taken on Sep 4, 2023 at 663xx Seventh Street DHS. This is happening - ugly.
Item Number: 4.
Figure 2.
Taken on Sep 4 at 66348 Seventh Street DHS. This is happening - beautiful Item Number: 4.
Here's what you need to change, and it's easy
Fig 3. General Plan page LU 12 Delete "2 stories" Insert "1 story" Item Number: 4.
Fig 4. Zoning Code Table 17.08.01
Detached Residential Delete "30" Insert "20"
Accessory Structures Delete "30" Insert "20"
Item Number: 4.
SR-23-221
City of Desert Hot Springs
City Council
AGENDA ITEM REPORT
To: City Council
Date: September 19, 2023
Department: City Manager
Prepared by: Doria Wilms, Interim City Manager
Subject: Services Agreement with Martha's Village and Kitchen to operate an Access Hub at 66753 Hacienda Ave from October 1, 2023 to December 31, 2023 RECOMMENDATION:
Approve the Professional Services Agreement with Martha's Village and Kitchen to operate an Access Hub at 66753 Hacienda Ave from October 1, 2023 to December 31, 2023, with substantive changes to be made by the City Manager, if any.
BACKGROUND:
In recent years, there has been an increase in the total number of unhoused individuals in the City of Desert Hot Springs, the County, and in the State of California. Each year, Riverside County staff along with City staff and volunteers complete a Point-In-Time count of unhoused individuals in each City and the entire Riverside County. Although the numbers are just estimates, the total numbers from each year attest that there has been a rise in the unhoused population in the entire Riverside County. The City of Desert Hot Springs has seen over a 100% increase in these numbers from 2018 – 2023. In 2018 the City’s Point in Time Count identified 58 unhoused individuals in the City. In 2023 this number increased to 122 individuals.
In an effort to identify the needs of the unhoused individuals the city completed an independent assessment, met with various other agencies and cities and reviewed and evaluated our current programs. In the fall of 2021, the City hired SEH Consulting to complete city-wide outreach, including a needs assessment analysis in the field with the unhoused population. Field reconnaissance was conducted, and these results were presented at three separate public meetings held at the Desert Hot Springs Library. These meetings presented data, and allowed all residents to submit comments, and provide feedback on specific issues or concerns.
DISCUSSION:
Since that time, city staff met with staff from Lake Elsinore and Alameda to discuss their unhoused programs and services, past efforts and funding sources. Staff also toured The Anchor, ran by Lake Elsinore to gain insight and understanding into the services provided.
In May of 2023 City Staff met with Martha's Village and Kitchen to discuss the programs and services they offer at various locations in the Coachella Valley. Martha’s Village and Kitchen was established in 1990 and began its journey by serving homeless neighbors’ hot meals. Today, Martha’s Village and Item Number: 5.
SR-23-221
Kitchen operates four locations in the Coachella Valley and serves those in the unhoused community with pride and dignity.
In 2019 the Ninth Circuit Court of Appeals ruled that that cities cannot enforce anti-camping ordinances if they do not have enough homeless shelter beds available for their homeless population. (Martin vs.
Boise)
In an effort to comply with this ruling, on Tuesday, May 2, 2023 the City purchased the property located at 66753 Hacienda Ave. The property is centrally located with close proximity to many city services and resources, and easily accessible from all areas of the city. The property has multiple restrooms, multiple bedrooms, open common areas and a kitchen which make it ideal for communal programs.
In an effort to provide a location out of the elements of the weather including excessive heat, excessive cold, and rain, this facility is being proposed to serve as an Access Hub managed and operated by Martha’s Village and Kitchen from October 1, 2023 – December 31, 2023, providing 24/7 services, which include the following;
Access Hub Services
Open: Monday – Friday 8:00 AM – 5:00 PM
Services Provided
Cooling Center/Warming Center
Lunch Distribution for participating clients
Shower Services
Case Management
Employment Services
Overnight Shelter
Housing for 20-25 clients, with dinner and breakfast included.
The Access Hub will managed and operated by Martha's Village and Kitchen, who will provide 24/7 Security at the site. The Desert Hot Springs Police Department will also patrol the site on a regular basis.
FISCAL IMPACT:
The amount of this services agreement is not to exceed $291,225. The costs will be in the Contract Services line item in the City Manager's Budget for FY2023-2024.
This expense was not anticipated at the time of the development of the FY2023-2024 Budget. Staff has identified savings elsewhere in the budget from staffing changes and discontinued programs. A budget adjustment will be created to reflect this change in the FY2023-2024 Budget.
ATTACHMENTS:
1) Professional Services Agreement - Martha's Village and Kitchen 2) Scope of Services
3) Robert Martin v. City of Boise, No. 15-35845 (9th Cir. 2019) 4) 2019 Point In Time Count
5) 2023 PIT Infographic FINAL
Item Number: 5.
SR-23-221
Item Number: 5.
PROFESSIONAL SERVICES AGREEMENT
BY AND BETWEEN
CITY OF DESERT HOT SPRINGS
AND
MARTHA’S VILLAGE AND KITCHEN
This Professional Services Agreement (“Agreement”) is made and entered into this 1st day of October 2023, by and between the City of Desert Hot Springs, a municipal corporation located in the County of Riverside, State of California, hereinafter referred to as the “City,” and Martha’s Village and Kitchen, hereinafter referred to as “Consultant.”
RECITALS:
WHEREAS, the City desires to utilize the services of Consultant, as an independent contractor, to facilitate and manage services for the unhoused population in the City of Desert Hot Springs, as directed by the City on an as needed basis (sometimes hereinafter, the “Services”), as described in more particularity in Exhibit “A,” attached hereto and incorporated herein by this reference as the “Scope of Services”; and
WHEREAS, Consultant represents that it is fully qualified to perform such services by virtue of its experience and the training, education and expertise of its principals and employees.
NOW THEREFORE, IN CONSIDERATION OF THE COVENANTS,
CONDITIONS AND PROMISES CONTAINED HEREIN AND FOR SUCH OTHER
GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
Section 1. RECITALS
The Recitals set forth above are true and correct and are hereby incorporated into this Agreement by this reference, as though set forth in full herein.
Section 2. SCOPE OF SERVICES
Consultant shall provide to the City the Services on an as-needed and asdirected basis in a manner satisfactory to the City and consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar conditions, as described in more detail in the Scope of Item Number: 5.
Services. In the event a conflict exists between this Agreement and the Scope of Services, the former shall supersede.
Section 3. TERM
This Agreement shall commence as of October 1, 2023, date and shall continue in force and effect until December 31, 2023, in accordance with Section 7 of this Agreement, subject to allocation of funds pursuant to a duly approved City budget.
Section 4. COMPENSATION
The City agrees to pay Consultant for and in consideration of the faithful performance of the Services and duties set forth in this Agreement, and Consultant agrees to accept from the City, as and for compensation for the faithful performance of said Services and duties rates described in the Scope of Services. The amount of this Agreement shall not exceed Two Hundred Ninety-One Thousand, Two Hundred and Twenty Five Dollars ($291,255.00).
Section 5. METHOD OF PAYMENT
a. Consultant shall submit invoices to the City, not more often than once a month, describing the work performed. Consultant’s bills shall include a brief description of the services performed, the date the services were performed, the number of hours spent and by whom, and a description of any reimbursable expenditures. The City shall pay Consultant no later than thirty (30) days after approval of the invoice by City staff provided that the services reflected in the invoice were performed to the reasonable satisfaction of the City in accordance with the terms of this Agreement, that the number of hours of service set forth in the invoice reflect the amount of time ordinarily expended for such service by members of the profession currently practicing in the same locality under similar conditions, and that all expenses, rates and other information set forth in the invoice are consistent with the terms and conditions of this Agreement. Review and approval of invoice by City staff will occur within thirty (30) calendar days of receipt of invoice via email.
b. The Consultant shall submit invoices under this Agreement to:
City Manager
City of Desert Hot Springs
11999 Palm Drive
Desert Hot Springs, CA 92240
Telephone: (760) 329-6411
Facsimile: (760) 288-3129
Email: [email protected]
Section 6. EXTRA WORK
Item Number: 5.
At any time during the term of this Agreement, the City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by the City to be necessary for the proper completion of the Services, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform Extra Work without written authorization from the City.
Section 7. TERMINATION
This Agreement may be terminated by the City Manager, in his/her sole discretion, immediately for cause. Either party may terminate this Agreement without cause upon twenty-four hours (24) hours written notice of termination to the other party.
Upon termination, Consultant shall be entitled to compensation for services performed up to the effective date of termination, provided that Consultant shall have satisfied all its obligations under this Agreement through and including the effective date of termination, and is not otherwise in breach of this Agreement. For clarification, the City Manager in his/her sole discretion shall have the power to terminate this Agreement with or without cause in accordance with this Section.
Section 8. OWNERSHIP OF DOCUMENTS
All plans, studies, documents and other writings, including drafts, prepared by and for Consultant, its officers, employees and agents and subcontractors in the course of implementing this Agreement, except working notes and internal documents, shall become the property of the City upon payment to Consultant for such work, and the City shall have the sole right to use such materials in its discretion without further compensation to Consultant or to any other party. Consultant shall, at its expense, provide such reports, plans, studies, documents and other writings in pdf format to the City upon written request, or such other electronic format as reasonably requested by the City.
Section 9. CONFIDENTIALITY
a. All ideas, memoranda, specifications, plans, procedures, drawings, photographs, descriptions, computer program data, input record data, written information, and other documents and data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without prior written consent of the City, be used by Consultant for any purposes other than the performance of the services under this Agreement, nor shall such materials be disclosed to any person or entity not connected with the performance of the services under this Agreement. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential.
Item Number: 5.
b. Consultant shall not use the City’s insignia or photographs relating to Consultant’s Services, or any publicity pertaining to the Consultant’s Services under this Agreement in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of the City.
Section 10. CONSULTANT’S BOOKS AND RECORDS
a. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant pursuant to this Agreement. b. Consultant shall maintain all documents and records which demonstrate performance under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of termination or completion of this Agreement. c. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Manager, City Attorney, City Auditor or a designated representative of these officers. Copies of such documents shall be provided to the City for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Consultant’s address indicated for receipt of notices in this Agreement. d. Where the City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Consultant’s business, the City may, by written request of any of the above-named officers, require that custody of the records be given to the City and that the records and documents be maintained at City Hall. Access to such records and documents shall be granted to any party authorized by Consultant, Consultant’s representatives, or Consultant’s successor-in-interest.
Section 11. INDEPENDENT CONTRACTOR’S STATUS: NOT AGENT
OF THE CITY
Consultant shall at all times during the term of this Agreement remain, as to the City, a wholly independent contractor and shall perform the services described in this Agreement as an independent contractor and further, hereby waives any claims for any compensation or benefits afforded to City employees and not to independent contractors. Neither the City nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s employees, except as herein set forth. Nothing contained in this Agreement shall be deemed, construed or represented by the City or Consultant or by any third person to create the relationship of principal and agent and Consultant shall not, at any time, or in any manner, represent that it or any of its agents Item Number: 5.
or employees are in any manner agents or employees of the City. Consultant shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent, nor shall Consultant have any authority, express or implied, to bind the City to any obligation whatsoever.
Section 12. REPRESENTATIONS AND ACKNOWLEDGMENTS
REGARDING INDEPENDENT CONTRACTOR’S STATUS
OF CONSULTANT
a. Consultant represents and acknowledges the following:
(1) The City is not required to provide any training or legal counsel to Consultant or its employees in order for Consultant to perform the services described in this Agreement.
(2) Performance of the services described in this Agreement does not have to be integrated into the daily business operations of the City. (3) The services described in this Agreement can be performed without the use of City equipment, materials, tools or facilities. (4) Nothing in this Agreement shall be interpreted to imply that the City must maintain any contractual relationship with Consultant on a continuing basis after termination of this Agreement.
(5) The City will not be requested or demanded to assume any liability for the direct payment of any salary, wage or other such compensation to any person employed by Consultant to perform the services described in this Agreement. (6) Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are employees of the City. b. The City represents and acknowledges the following:
(1) Consultant is not required to comply with daily instructions from City staff with respect to when, where or how Consultant must perform the services set forth in this Agreement.
(2) Consultant is solely responsible for determining who, under the supervision or direction of Consultant, will perform the services set forth in this Agreement.
(3) The City will not hire, supervise or pay any assistants working for Consultant pursuant to this Agreement.
Item Number: 5.
(4) Nothing in this Agreement shall be interpreted to imply that the Consultant must maintain any contractual relationship with the City on a continuing basis after termination of this Agreement.
(5) It is the sole responsibility of Consultant to set the hours in which Consultant performs or plans to perform the services set forth in this Agreement. (6) Consultant is not required to devote full time to the business operations of the City in order to perform the services set forth in this Agreement. (7) Consultant is not required to perform the services set forth in the Agreement in any particular order or sequence.
(8) Nothing in this Agreement shall be interpreted to preclude Consultant from working for other persons or firms, provided that such work does not create a conflict of interest.
(9) Consultant is not required to perform the Services at City-owned property.
(10) Consultant will perform services that are outside the usual course of the City’s business.
Section 13. CIVIL CODE SECTION 1542 WAIVER
Consultant expressly waives any and all rights and benefits conferred upon it by the provisions of section 1542 of the California Civil Code which reads as follows:
“A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
This waiver shall be effective as a bar to any and all actions, fees, damages, losses, claims, liabilities and demands of whatsoever character, nature and kind, that are known or unknown, or suspected or unsuspected, including, without limitation, claims of entitlements under the California Public Employees’ Retirement System (“CalPERS”) that are only afforded to employees and not independent contractors.
Consultant further represents and warrants that it understands this waiver and that if it does not understand this waiver, it shall seek the advice of a qualified attorney before executing this Agreement.
__________
Initials
Item Number: 5.
Section 14. CONFLICTS OF INTEREST
a. Consultant (including principals, associates and professional employees) covenants and represents that it does not have any investment or interest in real property and shall not acquire any interest, direct or indirect, in the area covered by this Agreement or any other source or income, interest in real property or investment which would be affected in any manner or degree by the performance of Consultant’s services hereunder. Consultant further covenants and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this Agreement.
b. Consultant is not a designated employee within the meaning of the Political Reform Act because Consultant:
(1) Does not make or participate in:
(i) the making or any governmental decisions regarding
approval of a rate, rule, or regulation, the adoption or enforcement of laws;
(ii) the issuance, denial, suspension or revocation of permits, licenses, applications, certificates, approvals, orders, or similar authorization or entitlement;
(iii) authorizing the City to enter into, modify, or renew a contract;
(iv) granting the City approval to a contract that requires City approval and to which the City is a party, or to the
specifications for such a contract;
(v) granting the City approval to a plan, design, report, study, or similar item; or
(vi) adopting, or granting City approval of, policies, standards, or guidelines for the City or for any subdivision thereof. (2) Does not serve in a staff capacity with the City and in that capacity participate in making a governmental decision or otherwise perform the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City’s Conflict of Interest Code under Government Code Section 87302.
Item Number: 5.
c. In the event the City officially determines that Consultant must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests, Consultant shall file the subject Form 700 with the City Clerk’s Office pursuant to the written instructions provided by the Office of the City Clerk.
Section 15. PROFESSIONAL ABILITY OF CONSULTANT;
WARRANTY; FAMILIARITY WITH WORK; PERMITS AND
LICENSES
a. Consultant warrants that all services will be performed in a competent, professional and satisfactory manner in accordance with the standards prevalent in the industry for such services.
b. By executing this Agreement, Consultant warrants that:
(1) it has thoroughly investigated and considered the work to be performed;
(2) it has investigated the issues, regarding the scope of services to be provided;
(3) it has carefully considered how the work should be performed; and (4) it fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement. c. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by the City, it shall immediately inform the City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the City Manager or appropriate City representative.
d. Consultant represents that it and all of its subcontractors, if any, have obtained and will maintain at all times during the term of this Agreement all professional and/or business licenses, certifications and/or permits necessary for performing the services described in this Agreement, including a City business license.
Section 16. COMPLIANCE WITH LAWS
Consultant shall comply with all local, state and federal laws and regulations applicable to the services required hereunder.
Section 17. INDEMNIFICATION
Item Number: 5.
a. Consultant shall defend, indemnify and hold harmless the City, its officers, officials, agents, employees and volunteers from and against any and all claims, demands, actions, losses, damage, injuries, and liability, direct or indirect (including any and all costs, expenses and attorneys’ fees in connection therewith), arising out of the performance of this Agreement, except for any such claim arising out of the sole negligence, recklessness, or willful misconduct of the City, its officers, agents, employees or volunteers.
b. The City does not, and shall not, waive any rights that it may have against Consultant under this Section because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless, indemnification and duty to defend provisions of this Section shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, action, damage, liability, loss, cost or expense described herein. c. Notwithstanding the provisions of subsections a. and b. of this section, Consultant shall not be responsible for damages or be in default or deemed to be in default by reason of delay caused by strikes, lockouts, accidents, or acts of God, or the failure of the City to furnish timely information or to approve or disapprove Consultant’s work promptly, or by reason of delay or faulty performance by the City, construction contractors, or governmental agencies, or by reason of any other delays beyond Consultant’s control, or for which Consultant is without fault. d. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or CalPERS to be eligible for enrollment in CalPERS as an employee of the City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for CalPERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of the City.
Section 18. INSURANCE REQUIREMENTS
a. Policies. Consultant, at Consultant’s sole cost and expense, shall procure and maintain, for the duration of this Agreement, the following insurance policies:
(1) Worker’s Compensation Coverage. Consultant shall maintain Worker’s Compensation Insurance and Employer’s Liability Insurance for its employees in accordance with the laws of the State of California, of an amount not less than one million dollars ($1,000,000) per accident. In addition, Consultant shall require each subcontractor to similarly maintain Worker’s Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California for all of the subcontractor’s employees. If any class of employees employed by Consultant pursuant to this Agreement is not protected by the California State Worker’s Compensation Law, Item Number: 5.
Consultant shall provide adequate insurance for the protection of such employees to the satisfaction of the City. This provision shall not apply if Consultant has no employees performing work under this Agreement. Consultant agrees to waive its statutory immunity under any worker’s compensation or similar statute, as respecting the City, and to require any and all subcontractors and any other person or entity involved in the Services to do the same.
(2) General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than two million dollars ($2,000,000) per occurrence, combined single limit coverage for bodily injury, personal injury and property damage associated with work contemplated in this Agreement. If a commercial general liability insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Consultant shall provide insurance on an occurrence, not claims-made basis. Consultant acknowledges and agrees that, for purposes of clarification with the intention of avoiding gaps in coverage with any umbrella or excess coverage, personal and advertising injury coverage shall be triggered by an “offense” while bodily injury and property damage coverage shall be triggered by an “occurrence” during the policy period. The coverage required in this paragraph shall provide at least as much coverage as that provided by ISO form CG 00 01 12 07 or any updated form thereof.
(3) Automobile Liability Coverage. Consultant shall maintain commercial automobile liability insurance covering bodily injury, personal injury and property damage for all activities of the Consultant arising out or of in connection with the work to be performed under this Agreement, including coverage for owned, hired and non-owned vehicles, in an amount of not less than one million dollars ($1,000,000) combined single limit for each occurrence, and two million dollars ($2,000,000) in the aggregate. As an alternative, Consultant shall be permitted to obtain a non-owned automobile endorsement to its comprehensive general liability insurance providing the same protection and coverage as though Consultant were to provide separate commercial vehicle liability insurance as set forth in this paragraph. The coverage required in this paragraph shall provide at least as much coverage as that provided by ISO form CA 00 01 or any updated form thereof.
(4) Professional Liability Coverage. Consultant shall maintain professional errors and omissions liability insurance for protection against claims alleging negligent acts, errors or omissions which may arise from Consultant’s Services, whether such Services are performed by Consultant or by its employees, subcontractors, or sub-consultants, to the extent such persons other than Consultant are permitted to perform any of the Services under this Agreement. The amount of this insurance shall not be less than one million dollars ($1,000,000) per claim, and two million dollars ($2,000,000) in the aggregate.
Item Number: 5.
b. Endorsements. Unless otherwise specified hereunder, each insurance policy required herein shall be with insurers possessing a Best’s rating of no less than A:VII and shall be endorsed with the following specific language:
(1) Except as otherwise provided by law, the City, its elected or appointed officers, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work or operations.
(2) This policy shall be considered primary insurance as respects the City, its elected or appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the City, including any self-insured retention the City may have shall be considered excess insurance only and shall not contribute with it. (3) This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company.
(4) The insurer waives all rights of subrogation against the City, its elected or appointed officials, officers, employees or agents. (5) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected or appointed officers, officials, employees, agents or volunteers.
(6) The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) days written notice has been received by the City.
c. Deductibles and Self-Insured Retentions. Consultant shall disclose to and obtain the approval of City for any self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. During the period covered by this Agreement, only upon the prior express written authorization of the City Manager, Consultant may either reduce or eliminate such deductibles or selfinsured retentions with respect to City, its officers, employees, agents, and volunteers.
The City Manager may condition approval of any reduction or elimination in deductible or self-insured retention levels with a requirement that Consultant procure a bond, guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. d. Certificates of Insurance. , Consultant shall provide certificates of insurance with original endorsements to the City as evidence of the insurance coverage required herein. Certificates of such insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement.
Item Number: 5.
e. Imposition of Insurance Requirements. Provided the City gives its written consent for any persons other than Consultant to perform any part of the Services, Consultant agrees to require that all parties, including but not limited to subcontractors, architects, engineers or others with whom Consultant enters into contracts or whom Consultant hires or retains pursuant to or in any way related to the performance of this Agreement, provide the insurance coverage required herein, at minimum, and name as additional insureds the parties to this Agreement consistent with Section 18b(1) hereof.
Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Section.
f. Maintain Coverages. In the event this Agreement is terminated for any reason prior to the completion of all obligations and requirements of this Agreement, Consultant agrees to maintain all coverages required herein until the City provides written authorization to terminate the coverages following the City’s review and determination that all liability posed under this Agreement as to the party providing insurance has been eliminated.
g. Failure to Obtain Coverages. Consultant agrees and acknowledges that if it fails to obtain all of the insurance required in this Agreement in accordance with the requirements herein, or to obtain and ensure that the coverage required herein is maintained by any subcontractors or others involved in any way with the performance of Services, to the extent such is permissible under this Agreement, Consultant shall be responsible for any losses, claims, suits, damages, defense obligations, or liability of any kind or nature attributable to the City or its officers, employees, servants, volunteers, agents and independent contractors.
h. Notice of Cancellation or Reduction in Coverage. In the event that any coverage required in this Agreement is canceled, reduced, limited, or materially affected in any other manner, Consultant shall provide written notice to the City either by facsimile and/or via certified mail, at Consultant’s earliest possible opportunity and in no case later than fifteen (15) calendar days after Consultant is notified of the change in coverage.
Section 19. NOTICES
a. Any notice to be provided pursuant to this Agreement shall be in writing, and all such notices shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, and addressed to the parties as follows:
To the City: City Manager
City of Desert Hot Springs
11999 Palm Drive
Desert Hot Springs, CA 92240
Item Number: 5.
Telephone: (760) 329-6411
Facsimile: (760) 288-3129
To Consultant: Rosa E. Verduzco-Ruiz
Martha’s Village and Kitchen
83791 Date Avenue
Indio, CA 92201
Telephone: (760) 347-4741
Facsimile: (760) 347-9551
b. Notices, payments and other documents shall be deemed delivered upon receipt by personal service or as of the second (2nd) day after deposit in the United States mail.
Section 20. DEFAULT
a. Failure or delay by any party to this Agreement to perform any material term or provision of this Agreement shall constitute a default under this Agreement; provided however, that if the party who is otherwise claimed to be in default by the other party commences to cure, correct or remedy the alleged default within fifteen (15) calendar days after receipt of written notice specifying such default and shall diligently complete such cure, correction or remedy, such party shall not be deemed to be in default hereunder.
b. The party which may claim that a default has occurred shall give written notice of default to the party in default, specifying the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the injured party shall have no right to exercise any remedy for a default hereunder without delivering the written default notice, as specified herein. c. Any failure or delay by a party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default.
d. In the event that a default of any party to this Agreement may remain uncured for more than fifteen (15) calendar days following written notice, as provided above, a "material breach" shall be deemed to have occurred. In the event of a material breach, the injured party shall be entitled to seek any appropriate remedy or damages as otherwise set forth herein and by initiating legal proceedings.
Section 21. REMEDIES
Item Number: 5.
If Consultant materially breaches any of the terms of this Agreement, the City’s remedies shall include, but shall not be limited to, the following:
a. Immediately terminate the Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement; c. Retain a different consultant to complete the Services that are not finished by Consultant.
Section 22. ENTIRE AGREEMENT
a. This Agreement supersedes any and all other agreements, either oral or written, between the City and Consultant with respect to the subject matter of this Agreement.
b. This Agreement contains all of the covenants and agreements between the parties with respect to the subject matter of this Agreement, and each party to this Agreement acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any party except those covenants and agreements embodied in this Agreement.
c. No agreement, statement, or promise not contained in this Agreement shall be valid or binding.
Section 23. MODIFICATIONS AND AMENDMENTS
This Agreement may be modified or amended only by a written instrument signed by both parties.
Section 24. ASSIGNMENT AND SUBCONTRACTING
a. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the written consent of the City. b. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written consent of the City. If the City consents to such subcontract, Consultant shall be fully responsible to the City for all acts or omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between the City and subcontractor nor shall it create any obligation on the part of the City to pay or to see to the payment of any monies due to any such subcontractor other than as required by law.
Item Number: 5.
Section 25. WAIVER
a. No waiver shall be binding, unless executed in writing by the party making the waiver.
b. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. c. Failure of either party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement.
Section 26. SEVERABILITY
If any one or more of the sentences, clauses, paragraphs or sections contained herein is declared invalid, void or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair or invalidate any of the remaining sentences, clauses, paragraphs or sections contained herein.
Section 27. VENUE
All proceedings involving disputes over the terms, provisions, covenants or conditions contained in this Agreement and all proceedings involving any enforcement action related to this Agreement shall be initiated and conducted in the applicable court or forum in Riverside County, California.
Section 28. LITIGATION EXPENSES AND ATTORNEYS’ FEES
In the event any action, suit or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorney's fees, from the losing party, and any judgment or decree rendered in such a proceeding shall include an award thereof.
Section 29. EXECUTION IN COUNTERPARTS
This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least a copy hereof shall have been signed by both parties hereto. Electronic and facsimile signatures shall be deemed the same as original signatures. In approving Item Number: 5.
this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
Section 30. PROHIBITED INTERESTS
Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement.
For breach or violation of this warranty, the City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer, or employee of the City, during the term of his or her service with the City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
Section 31. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and shall not discriminate against any subcontractor, employee, or applicant (“person”) for employment because of race; denial of family and medical care leave; religious creed (including religious dress and grooming practices); color; national origin (including language use restrictions); ancestry; physical disability or mental disability (including HIV and Aids); medical condition (cancer and genetic characteristics); genetic information; military or veteran status; marital status; gender, gender identity, and gender expression; sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding); age or sexual orientation. Unless otherwise permitted under the law, Consultant shall not refuse to hire or employ any such person or refuse to select any such person for a training program leading to employment, or bar or discharge any such person from employment or from a training program leading to employment, or otherwise discriminate against any such person in compensation or in terms, conditions, or privileges of employment.
Section 32. TIME OF THE ESSENCE
Time is of the essence in the performance of this Agreement.
Section 33. PRINCIPAL REPRESENTATIVES
a. Rosa Verduzco-Ruiz shall be Consultant's Principal Representative and the person responsible for undertaking, managing and supervising the performance of all of the Services for this Agreement. Consultant's Principal Representative's experience, knowledge, capability and reputation were a substantial inducement for the City to enter into this Agreement, and as such, for the purposes of performing the Item Number: 5.
Services, the duties of Consultant's Principal Representative shall not be reassigned, without the express written consent of both parties.
b. Doria Wilms, shall be the Principal Representative of the City for purposes of communicating with Consultant on any matter associated with the performance of the services set forth in this Agreement.
Section 34. NON-LIABILITY OF CITY’S OFFICERS AND EMPLOYEES No officer or employee of the City shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to Consultant or to its successor, or for any breach of any obligation of the terms of this Agreement.
Section 35. INTERPRETATION
This Agreement shall not be interpreted against either party on the grounds that one of the parties was solely responsible for preparing it or caused it to be prepared as both parties were involved in drafting it.
Section 36. PROTECTION AND CORRECTION OF WORK
a. Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work performed by Consultant, and the equipment, materials, papers and other components thereof to prevent losses or damages.
b. The performance of services by Consultant shall not relieve Consultant from any obligation to correct any incomplete, inaccurate or defective work at no further cost to the City, when such inaccuracies are due to the fault of Consultant.
Section 37. CAPTIONS AND HEADINGS
The captions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content of the provisions described under the respective caption or heading.
Section 38. GOVERNING LAW
The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the parties under this Agreement, shall be construed pursuant to and in accordance with California law.
Section 39. CUMULATIVE REMEDIES
Item Number: 5.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
Section 40. NO THIRD PARTY BENEFICIARIES
The parties do not intend the benefits of this Agreement to inure to any third party, nor shall any provision of this Agreement be so construed.
Section 41. OTHER GOVERNMENTAL REGULATIONS
To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Consultant and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program.
Section 42. REPRESENTATIONS OF PARTIES AND PERSONS
EXECUTING AGREEMENT
a. Each of the parties to this Agreement hereby represents that all necessary and appropriate actions of their governing bodies have been taken to make this Agreement a binding obligation of each of the parties hereto. b. The persons executing this Agreement warrant that they are duly authorized to execute this Agreement on behalf of and bind the parties each purports to represent.
Section 43. SUCCESSORS AND ASSIGNS
The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties hereto.
Section 44. SURVIVAL
All obligations arising prior to any termination of this Agreement and all provisions of this Agreement allocating liability between the City and Consultant shall survive any such termination.
Section 45. USE OF RECYCLED PRODUCTS
Item Number: 5.
Consultant shall prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above.
Item Number: 5.
CITY OF DESERT HOT SPRINGS
_____________________________
Scott Matas, Mayor
ATTEST:
_____________________________
Jerryl Soriano, City Clerk
APPROVED AS TO FORM:
Jennifer Mizrahi, City Attorney
_____________________________
_____________________________
Rosa Verduzco-Ruiz, Chief Operating Officer
Martha’s Village and Kitchen
EXHIBIT “A”
SCOPE OF SERVICES
Item Number: 5.
Item Number: 5.
@6963 $96999
H§€§$
€9$EH mg,“ % 93 999? 69 99
Item Number: 5.
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTMARTIN;LAWRENCEI.EE N0. l5-35345
SMITII;ROBERT ANDERSON;JANET
F. BELL;PAMELAS. HAWKES;and D.C. No.
BASILE. HUMPIIREY, l:09-cv-00540-
Plaint[[f.'r—AppeIlant.r, REB
v.
ORDER AND
CITY OF BOISE, AMENDED
Dz;/i>,ndant—Ap])eIIee. OPINION
Appeal from the United States District Court
for the District of Idaho
Ronald E. Bush, ChiefMagistrate Judge, Presiding
Argued and Submitted July 13, 2017
Portland, Oregon
Filed April 1, 2019
Before: Marsha S. Berzon, Paul J. Watford,
and John B. Owens, Circuit Judges.
Order;
Concunence in Order by Judge Berzon;
Dissent to Order by Judge Milan D. Smith, Jr.;
Dissent to Order by Judge Bennett;
Opinion by Judge Berzon;
Partial Concurrence and Partial Dissent by Judge Owens
Item Number: 5.
2 MARTINV. CITY OF BOISE
SUMMARY‘
Civil Rights
The panel amended its opinion filed September 4, 2018,
and reported at 902 F.3d 1031, denied a petition for panel rehearing, denied a petition for rehearing en banc on behalf of the court, and ordered that no further petitions shall be entertained.
In the amended opinion, the panel affirmed in part and
reversed in part the district court's summaiy judgment in favor ofthe City of Boise in an action brought by six current or formerly homeless City ofBoise residents who alleged that their citations under the City’s Camping and Disorderly Conduct Ordinances violated the Eighth Amendment's
prohibition on cruel and unusual punishment.
Plaintiffs sought damages for the alleged violations under 42 U.S.C. § 1983. Two plaintiffs also sought prospective declaratory and injunctive relief precluding future
enforcement of the ordinances. In 2014, after this litigation began, the ordinances were amended to prohibit their
enforcement against any homeless person on public property on any night when no shelter had an available overnight space.
' This summary constitutes no part ofthe opinion olithc court. It has been prepared by court stall" for the convenience of the reader.
Item Number: 5.
MARTINV. CITY OF BOISE 3
The panel first held that two plaintiffs had standing to pursue prospective relief because they demonstrated a
genuine issue of material fact as to whether they faced a credible risk of prosecution on a night when they had been denied access to the City’s shelters. The panel noted that although the 2014 amendment precluded the City from
enforcing the ordinances when shelters were full, individuals could still be turned away for reasons other than shelter capacity, such as for exceeding the shelter’s stay limits, or for failing to take part in a shelter’s mandatory religious programs.
The panel held that although the doctrine set forth in Heck v. Humphrey, 512 U.S. 477 (1994), and its progeny precluded most but not all of the plaintiffs’ requests for
retrospective relief, the doctrine had no application to plaintiffs’ request for an injunction enjoining prospective enforcement of the ordinances.
Turning to the merits, the panel held that the Cruel and Unusual Punishments Clause of the Eighth Amendment
precluded the enforcement ofa statute prohibiting sleeping outside against homeless individuals with no access to
alternative shelter. The panel held that, as long as there is no option ofsleeping indoors, the govemmentcannotcriminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.
Concurring in part and dissenting in part, Judge Owens
disagreed with the majority's opinion that Heck v. Humphrey did not bar plaintiffs‘ claim for declaratory and injunctive relief. Judge Owens stated that a declaration that the city ordinances are unconstitutional and an injunction against their future enforcement would necessarily demonstrate the
Item Number: 5.
4 MARTINV. CITY OF BOISE
invalidity of plaintiffs‘ prior convictions. Judge Owens otherwisejoined the majority in full.
Concurring in the denial of rehearing en banc, Judge
Berzon stated that on the merits, the panel’s opinion was limited and held only that municipal ordinances that
criminalize sleeping, sitting, or lying in all public spaces, when no alternative sleeping space is available, violate the Eighth Amendment. Judge Berzon further stated that a
photograph featured in Judge M. Smith’s dissent from the denial of rehearing en banc, depicting tents on a Los Angeles public sidewalk, was not part of the record, was unrelated, predated the panel’s decision and did not serve to illustrate a concrete effect of the panel's holding. Judge Berzon stated that what the pre-Martin photograph did demonstrate was that the ordinances criminalizing sleeping in public places were never a viable solution to the homelessness problem.
Dissenting from the denial ofrehearing en banc, Judge M.
Smith,joined by Judges Callahan, Bea, Ikuta, Bennett and R.
Nelson, stated that the panel severely misconstrued three areas of binding Supreme Court precedent, and that the
panel's opinion created several splits with other appellate courts. Judge M. Smith further stated that the panel's holding has already begun wreaking havoc on local governments,
residents, and businesses throughout the circuit. Judge M.
Smith stated that the panel’s reasoning will soon prevent local governments from enforcing a host ofother public health and safety laws such as those prohibiting public defecation and urination, and that the panel’s opinion sh ‘kles the hands of public of?ci' ‘ trying to redress the serious societal concern of homelessness.
Item Number: 5.
MARTINV. CITY OF BOISE 5
Dissenting from the denial of rehearing en banc, Judge
Bennett, joined by Judges Bea, Ikuta, R. Nelson, and joined by Judge M. Smith as to Part II, stated that the panel’s decision, which allows pre-conviction Eighth Amendment
challenges, is wholly inconsistent with the text and tradition ofthe Eighth Amendment.
COUNSEL
Michael E. Bern (argued) and Kimberly Leefatt, Latham & Watkins LLP, Washington, D.C.; Howard A. Belodoff, Idaho Legal Aid Services Inc., Boise, Idaho; Eric Tars, National Law Center on Homelessness & Poverty, Washington, D.C.; Plaintiffs-Appellants.
Brady J. Hall (argued), Michael W. Moore, and Steven R.
Kraft, Moore Elia Kraft & Hall LLP, Boise, Idaho; Scott B.
Muir, Deputy City Attorney; Robert B. Luce, City Attorney; City At‘torney’s Of?ce, Boise, Idaho; for DefendantAppellee.
Item Number: 5.
6 MARTINV. CITY OF BOISE
ORDER
The Opinion filed September 4, 2018, and reported at
902 F.3d 1031, is hereby amended. The amended opinion will be ?led concurrently with this order.
The panel has unanimously voted to deny the petition for panel rehearing. The full court was advised ofthe petition for rehearing en banc. Ajudge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority ofvotes ofthe nonrecused activejudges in favor of en banc consideration. Fed. R. App. P. 35. The petition for panel rehearing and the petition for rehearing en banc are DENIED.
Future petitions for rehearing or rehearing en banc will not be entertained in this case.
BERZON, Circuit Judge, concurring in the denial of
rehearing en banc:
I strongly disfavor this circuit’s innovation in en banc procedure ubiquitous d sents in the denial ofrehearing en banc, sometimes accompanied by concurrences in the denial ofrehearing en banc. As I have previously explained, dissents in the denial ofrehearing en banc, in particular, often engage in a “distorted presentation ofthe issues in the case, creating the impression oframpant error in the original panel opinion although a majority often a decisive majority ofthe active members of the court . . . perceived no error.” Dzf?t.of VI/ildli?aCtr. for Biological Diversity v. EPA, 450 F.3d 394, 402 (9th Cir. 2006) (Berzon, J., concurring in denial of Item Number: 5.
MARTINV. CITY OF BOISE 7
rehearing en banc); we also Marsha S. Berzon, Dixxent,
“Di.r.rentalx, " andDeci.rion Making, 100 Calif. L. Rev. 147‘) (2012). Often times, the dramatic tone ofthese dissents leads them to read more like petitions for writ of certiorari on steroids, rather than reasonedjudicial opinions.
Despite my distaste for these separate writings, I have, on oc ion, written concurrenc ‘
in the denial ofrehearing en
banc. On those rare occasions, I have addressed arguments raised for the first time during the en banc proce , corrected misrepresentations, or highlighted important facets of the case that had yet to be discussed.
This case serves as one of the few occasions in which I feel compelled to write a briefconcurrence. I will not address the dissents' challenges to the Heck v. Humphrey, 512 U.S. 477 (1994), and Eighth Amendment rulings ofMartin v. City q/' Boise, 902 F.3d 1031 (9th Cir. 2018), as the opinion sufficiently rebuts those erroneous arguments. [write only to raise two points.
First, the City of Boise did not initially seek en banc reconsideration ofthe Eighth Amendment holding. When this court solicited the parties’ positions as to whether the Eighth Amendment holding merits en banc review, the City's initial submission, before mildly supporting en banc
reconsideration, was that the opinion is quite “narrow” and its “interpretation ofthe [C]onstitution raises little actual conflict with Boise's Ordinances or [their] enforcement." And the City noted that it viewed prosecution ofhomel 'ndividuals for sleeping outside as a “last resort,” not as a principal weapon in reducing homelessness and its impact on the City.
Item Number: 5.
8 MARTINV. CITY OF BOISE
The City is quite right about the limited nature of the opinion. On the merits, the opinion holds only that municipal ordinances that criminalize sleeping, sitting, or lying in all public spaces, when no alternative sleeping space is available, violate the Eighth Amendment. Martin, 902 F.3d at 1035.
Nothing in the opinion reaches beyond criminalizing the biologically essential need to sleep when there is no available shelter.
Second, Judge M. Smith's ssent features an unattributed color photograph of “a Los Angeles public sidewalk.” The photograph depicts several tents lining a street and is presumably designed to demonstrate the purported negative impact of Martin. But the photograph fails to ful?ll its intended purpose for several reasons.
For starters, the picture is not in the record of thi‘ case and is thus inappropriately included in the dissent. It is not the practice of thi circuit to include outs1de~the-record photographs in judicial opinions, especially when such
photographs are entirely unrelated to the case. And in this instance, the photograph is entirely unrelated. It depicts a sidewalk in Los Angeles, not a location in the City ofBoise, the actual municipality at issue. Nor can the photograph be said to illuminate the impact ofMartin within this circuit, as it predates our decision and was likely taken in 2017.‘ ' Although Judgc M. Smith docs not credit thc photograph to any sourcc, an intcmct search suggcsts that Lhc original photograph is attribuutblc to Los Angclcs County. See Implementing the Los Angeles County Hr)meIe.v. ..v Initiative, LA. County, http://homclcss.lacounty. gov/implcmcnting—thc—los—angclcs—county—homclcss—imtiativc/ [hLtps:// Item Number: 5.
MARTINV. CITY OF BOISE 9
But even putting aside the use ofa pre-Martin, outside» the~record photograph from another municipality, the
photograph does not serve to illustrate a concrete effect of Martin’s holding. The opinion clearly states that it is not outlawing ordinances“barring the obstruction ofpublic rights ofway or the erection of certain structures,” such as tents, id. at 1048 n.8, and that the holding “in no way dictate[s] to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets . . . at any time and at any place," id. at 1048 (quoting Jones v. City of'Lo.rAngeles, 444 F.3d 1118, 1138 (9th Cir. 2006)).
What the pre-Martin photograph dues demonstrate is that the ordinances criminalizing sleeping in public places were never a viable solution to the homeles. ess problem. People with no place to live will sleep outside if they have no alternative. Taking them to jail for a few days is both unconstitutional, for the reasons discussed in the opinion, and, in all likelihood, pointless.
Thedistiessinghomelessnessproblem distressingtothe
people with nowhere to live as well as to the rest of
society has grown into a cri. s for many reasons, among them the cost of housing, the drying up of affordable care for people with mental illness, and the failure to provide adequate treatment for drug addiction. See, e.g., U.S. Interagency Council on Homelessness, H0mele.r.rne.r.rin America.‘ Focus an Individual Adults 5 8 (2018), https://www.usich.gov/res ources/?uploads/assetilibrary/HIA7Individual7Adults.pd£ wcb.archivc.org/wcb/‘.720170405225036/homclcss.lacounLy.gov/implcm cntmg—Lhc—los—angclcs—counly—homclcss—initiativc/4%], xeeulso Los Angclcs County ((a3,CounLyolLA), Twillcr (Nov. 29, 2017, 3:23 PM), htlps://lwiltcncom/CountyoILA/slztlus/936012841533894657.
Item Number: 5.
10 MARTINV. CITY OF BOISE
The cri 's continued to burgeon while ordinances forbidding sleeping in public were on the books and sometimes enforced.
There is no reason to believe that it has grown, and is likely to grow larger, because Martin held it unconstitutional to criminalize simply sleeping somewhere in public if one has nowhere else to do so.
For the foregoing reasons, I concur in the denial of
rehearing en banc.
M. SMITH, Circuit Judge, with whom CALLAHAN, BEA,
IKUTA, BENNETT, and R. NELSON, Circuit Judges, join,
dissenting from the denial ofrehearing en banc:
In one misguided ruling, a three-judge panel ofour court badly misconstrued not one or two, but three areas ofbinding Supreme Court precedent, and crafted a holding that has begun wreaking havoc on local governments, residents, and bus esses throughout our circuit. Under the panel's
dec 1011, local governments are forbidden from enforcing laws restricting public sleeping and camping unless they provide shelter for every homeless individual within their jurisdictions. Moreover, the panel's reasoning will soon prevent local governments from enforcing a host of other public health and safety laws, such s those prohibiting public defecation and urination. Perhaps most unfortunately, the panel’s opinion shackles the hands of public officials trying to redress the serious societal concern ofhomelessness.' ' With almost 553,000 pcoplc who cxpcricnccd homclcssncss nationwide on (I singlc night in January 2018, this issuc ztllccts communitics across our country. U.S. Dcp’t olillous. & Urbztn Dcv., Item Number: 5.
MARTINV. CITY OF BOISE 1l
I respectfully dissent from our court's refusal to correct this holding by rehearing the case en banc.
The most harmful aspect of the panel's opinion is its
misreading ofEighth Amendment precedent. My colleagues
cobble together disparate portions ofa fragmented Supreme Court opinion to hold that “an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public
property, when no alternative shelter is available to them.” Martin v. City Q/"Boise,902 F.3d 1031, 1035 (9th Cir. 2018).
That holding is legally and practically ill-conceived, and conflicts with the reasoning of every other appellate court‘ that has considered the issue.
A.
The panel struggles to paint its holding as a faithful
interpretation ofthe Supreme Court's fragmented opinion in Powell v. Texas, 392 U.S. 514 (1968). It fails.
To understand Powell, we must begin with the Court's
decision in Rabinxan v. California, 370 U.S. 660 (1962).
There, the Court addressed a statute that made it a “criminal Olliee of Cmty. Planning & Dev., The 2018 Annuztl Ilomeless Asscssmcnt Rcport (AIIAR) to Congress 1 (Dec. 2018),
http //www.hudcxchztngc.1nlb/resourees/doeumcnts/2018—AllAR—Part—
1.pdlZ
Z Our court previously adopted the same Eighth Amendment holding as the panel in./(mes V. City 0/LoxAngeles, 444 F.3d 1118, 113s(9m Ctr. 2006), but thatdecision was later vztcated. 505 F.3d 1006 (9th Cir. 2007).
Item Number: 5.
12 MARTINV. CITY OF BOISE
offense for a person to ‘be addicted to the use ofnarcotics.'" Robinson, 370 U.S. at 660 (quoting Cal. Health & Safety Code § 11721). The statute allowed defendants to be
convicted so long as they were drug addicts, regardless of whether they actually used or pos. ssed drugs. Id. at 665.
The Court struck down the statute under the Eighth
Amendment, reasoning that because “narcotic addiction is an illness . . . which may be contracted innocently or
involuntarily . . . a state law which imprisons a person thus afflicted as criminal, even though he has never touched any narcotic drug” violates the Eighth Amendment. Id. at 667.
A few years later, in Powell, the Court addressed the
scope of its holding in Robinson. Powell concerned the
constitutionality of a Texas law that criminalized public drunkenness. Powell, 392 U.S. at 516. As the panel's
opinion acknowledges, there was no majority in Powell. The four Justices in the plurality interpreted the decision in Robinson as standing for the limited proposition that the government could not criminalize one's status. Id. at 534.
They held that because the Texas statute criminalized conduct rather than alcoholism, the law was constitutional. Powell, 392 U.S. at 532.
The four dissenting Justices in Powell read Robinson
more broadly: They believed that “criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change.” Id. at 567 (Fortas, J., dissenting).
Although the statute in Powell differed from that in Robinson by covering involuntary conduct, the d" 'ent found the same constitutional defect present in both cases. Id. at 567 68.
Justice White concurred in thejudgment. He upheld the
defendant’s conviction because Powell had not made a
Item Number: 5.
MARTINV. CITY OF BOISE 13
showing that he was unable to stay offthe streets on the night he was arrested. Id at 552 53 (White, J., concurring in the result). He wrote that it was “unnec ry to pursue at this point the further de?nition of the circumstances or the state of intoxication which might bar conviction of a chronic alcoholic for being drunk in a public place.” Id. at 553.
The panel contends that because Justice White concurred in the judgment alone, the views of the dissenting Justices constitute the holding ofPowell. Martin, 902 F.3d at 1048.
That tenuous reasoning which metamorphosizes the Powell dissent into the majority opinion de?es logic.
Because Powell was a 4 l 4 decision, the Supreme
Court's decision in Markr v. United States guides our
analysis. 430 U.S. 188 (1977). There, the Court held that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of ?ve Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds.” Id. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.l5 (1976) (plurality opinion)) (emphasis added). When Markr is applied to
Powell, the holding is clear: The defendant’s conviction was constitutional because it involved the commission ofan act.
Nothing more, nothing less.
This is hardly a radical proposition. I am not alone in recognizing that “there is de?nitely no Supreme Court
holding" prohibiting the criminalization of involuntary conduct. United States v. Moore, 486 F.2d 1139, 1150 (D.C.
Cir. 1973) (en banc). Indeed, in the years since Powell was decided, courts including our own have routinely upheld state laws that criminalized acts that were allegedly
Item Number: 5.
l4 MARTINV. CITY OF BOISE
compelled orinvoluntary. See, e.g., UnitedStateS v. Stenson, 475 F. App’): 630, 631 (7th Cir. 2012) (holding that it was constitutional for the defendant to be punished for violating the terms ofhis parole by consuming alcohol because he “was not punished for his status as an alcoholic but for his conduct");./oshua v. Adams, 231 F. App’): 592, 594 (9th Cir. 2007) (“Joshua also contends that the state court ignored his mental illne hizophrenia], which rendered him unable to control his behavior, and his sentence was actually a penalty for his illness . . . . This contention is without merit because, in contrast to Robinxan, where a statute speci?cally
criminalized addiction, Joshua was convicted ofa criminal offense separate and distinct from his ‘status’ as a
schizophrenic."); United States v. Benz;/ield,889 F.2d 1061, 1064 (1 1th Cir. 1989) (“The considerations that make any incarceration unconstitutional when a statute punishes a defendant for his status are not applicable when the
government seeks to punish a person’s actions.”).’
To be sure, Marlcr is controversial. Last term, the Court agreed to consider whether to abandon the rule Markr
established (but ultimately resolved the case on other grounds and found it “unnecessary to consider . . . the proper
application ofMark.r"). Hughex v. Ur1itedStatex, 138 S. Ct. 1765, 1772 (2018). At oral argument, the Justices criticized the logical subset rule established by Mark: for elevating the outlier views of concurring Justices to precedential status.‘ ’ That most of these opinions wcrc unpublished only but cs my point: It is uncontrovcrsial thztt Powell docs not prohibit the criminztlizzttion oliinvoluntztry conduct.
‘ Transcript o1‘Oral Argument at 14, Hughes v. United States, 138 S.
Ct. 1765 (2018) (No. 17455).
Item Number: 5.
MARTINV. CITY OF BOISE 15
The Court also acknowledged that lower courts have
inconsistently interpreted the holdings of fractured decisions under Mark.r.5
Those criticisms, however, were based on the assumption that Marlcr means what it says and says what it means: Only the views ofthe Justices concurring in the judgment may be considered in construing the Court's holding. Markr,
430 U.S. at 193. The Justices did not even think to consider that Mark: allows di enting Justices to create the Court's holding. As a Markr scholar has observed, such a method of vote counting “would paradoxically create a precedent that contradicted the judgment in that very case." And yet the panel’s opinion ?outs that common sense rule to extract from Powell a holding that does not exist.
What the panel really does is engage in a predictive model of precedent. The panel opinion implies that ifa case like Powell were to arise again, a majority of the Court would hold that the criminalization ofinvoluntary conduct violates the Eighth Amendment. Utilizing such reasoning, the panel borrows the Justices’ robes and adopts that holding on their behalf.
But the Court has repeatedly discouraged us from making such predictions when construing precedent. See Rodriguez de Qui/asv. Shearxan/Am. Express, Ine., 490 U.S. 477, 484 (1989). And, for good reason. Predictions about how
5 Id. at 49.
" Richard M. Rc, Beyond the Marks Rule, 132 Harv. L. Rcv. (forthcoming 2019), https://papcrs.ssm.com/sol3/papcrs.cli'n7absLract i d=3090(320.
Item Number: 5.
l6 MARTINV. CITY OF BOISE
Justices will rule rest on unwarranted speculation about what goes on in their minds. Such amateur fortunetelling also precludes us from considering new insights on the
issues difficult as they may be in the case of 4 l 4
decisions like Powell that have arisen since the Court’s fragmented opinion. See E.I. du Pont de Nemours & Co. v.
Train, 430 U.S. 112, 135 n.26 (1977) (noting “the wisdom of allowing difficult issues to mature through full consideration by the courts ofappeals”).
In short, predictions about how the Justices will rule
ought not to create precedent. The panel’s Eighth
Amendment holding lacks any support in Robinson or
Powell.
B.
Our panel’s opinion also conflicts with the reasoning
underlying the decisions ofother appellate courts.
The California Supreme Court, in Tobe v. City o/'Santa
Ana, rejected the plaintiffs’ Eighth Amendment challenge to a city ordinance that banned public camping. 892 P.2d l 145 (1995). The court reached that conclusion despite evidence that, on any given night, at least 2,500 homeless persons in the city did not have shelter beds available to them. Id. at l 152. The court sensibly reasoned that because Powell was a fragmented opinion, it did not create precedent on “the question of whether certain conduct cannot constitutionally be punished because it is, in some sense, ‘involuntary’ or ‘occasioned by a compulsion.” Id. at 1166 (quoting Powell, 392 U.S. at 533). Our panel bound by the same Supreme
Court precedent invalidates identical California ordinances Item Number: 5.
MARTINV. CITY OF BOISE 17
previously upheld by the California Supreme Court. Both courts cannot be correct.
The California Supreme Court acknowledged that
homelessness s a serious societal problem. It explained, however, that:
Many of those issues are the result of
legislative policy decisions. The arguments of
many amici curiae regarding the apparently
intractable problem of homelessness and the
impact ofthe Santa Ana ordinance on various
groups of homeless persons (e.g., teenagers,
families with children, and the mentally ill)
should be addressed to the Legislature and the
Orange County Board ofSupervisors, not the
judiciary. Neither the criminal justice system
nor the judiciary is equipped to resolve
chronic soc 1 problems, but eriminalizing
conduct that is a product ofthose problems is
not for that reason constitutionally
impermissible.
Id. at l 157 n. 12. By creating new constitutional rights out of whole cloth, my well~meaning, but uneleeted, colleagues improperly inject themselves into the role of public
policymaking.7
7 Justice Black has also observed that solutions for challenging social issues should be lell to the policymakers:
I cannot say that the States should be totally barred
from one avenue of experimentation, the criminal
process, in attempting to [ind a means to cope with this dillieult social problem . . . . [I]t seems to me that the Item Number: 5.
18 MARTINV. CITY OF BOISE
The reasoning of our panel decision also conflicts with precedents ofthe Fourth and Eleventh Circuits. In Manning v. Caldwell, the Fourth Circuit held that a Virginia statute that criminalized the pos ‘ton of alcohol did not violate the Eighth Amendment when it punished the involuntary actions of homeless alcoholics. 900 F.3d 139, 153 (4th Cir. 2018), reh 'g en banc granted 741 F. App’x 937 (4th Cir. 2018).“ The court rejected the argument that Justice White's opinion in Powell “requires this court to hold that Virginia’s statutory scheme imposes cruel and unusual punishment because it
criminalizes [plaintiffs’] status as homeless alcoholics.” Id. at 145. The court found that the statute passed constitutional muster because “it is the act of pos ssing alcohol not the status of being an alcoholic that gives rise to criminal sanctions." Id. at 147.
Boise’s Ordinances at issue in this case are no different:
They do not criminalize the status ofhomelessness, but only the act ofcamping on public land or occupying public places without permission. Martin, 902 F.3d at 1035. The Fourth Circuit correctly recognized that these kinds of laws do not run afoul of Robinson and Powell.
prcscnt usc of criminal sanctions might possibly bc
unwisc, but I am by no mcztns convinced that any usc of criminztl sanctions would incvitably bc unwisc or,
abovc ztll,thzttI am quztlilicd in this arczt to know what is lcgtslzttivcly wisc ztndwhztt is lcgtslzttivcly unwisc.
Powell, 392 U.S. at 539 40 (Black, J., concurring).
" Pursuant to Fourth Circuit Local Rulc 35(c), “[g]rant1ng ofrchcaring cn bane vztcatcs thc prcvious pancl judgment and opinion.” I mcntion Manning, howcvcr, as an illustrzttion of other courts’ rcztsoning on the Eighth Amcndmcnt issuc.
Item Number: 5.
MARTINV. CITY OF BOISE 19
The Eleventh Circuit has agreed. In Joel v. City of
Orlando, the court held that a city ordinance prohibiting sleeping on public property was constitutional. 232 F.3d 1353, 1362 (11th Cir. 2000). The court rejected the
plaintiffs’ Eighth Amendment challenge because the
ordinance “targets conduct, and does not provide criminal punishment based on a person’s status.” Id. The court
prudently concluded that “[t]he City is constitutionally allowed to regulate where ‘camping’ occurs.” [:1
We ought to have adopted the sound reasoning of these
other courts. By holding that Boise’s enforcement of its Ordinances violates the Eighth Amendment, our panel has needlessly created a split in authority on this straightforward ISSUC.
C.
One would think our panel’s legally incorrect decision
would at least foster the common good. Nothing could be further from the truth. The panel's decision generates dire practical consequences forthe hundreds of local governments within our jurisdiction, and for the millions of people that reside therein.
The panel opinion masquerades its decision as a narrow
one by representing that it “in no way dictate[s] to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets . . . at any time and at any place." Martin, 902 F.3d at 1048 (quoting Jrmex v. City qf'Lo.r Arigelex, 444 F.3d 1118, 1138 (9th Cir. 2006)).
Item Number: 5.
20 MARTINV. CITY OF BOISE
That excerpt, however, glosses over the decision’s actual holding: “We hold only that . . . as long as there is no option of sleeping indoors, the government cannot criminalize
indigent, homeless people for sleeping outdoors, on public property.” Id. Such a holding leaves cities with a I-lobson’s choice: They must either undertake an overwhelming
?nancial responsibility to provide housing for or count the number of homeless individuals within their jurisdiction every night, or abandon enforcement of a host of laws
regulating public health and safety. The Constitution has no such requirement.
Under the panel’s decision, local governments can
enforce certain of their public health and safety laws only when homeless individuals have the choice to sleep indoors.
That inevitably leads to the question of how local officials ought to know whether that option exists.
The number of homeless individuals within a
municipality on any given night is not automatically reported and updated in real time. Instead, volunteers or government employees must painstakingly tally the number of homeless individuals block by block, alley by alley, doorway by
doorway. Given the daily fluctuations in the homeless
population, the panel’s opinion would require this laborintensive task be done every single day. Yet in massive cities such as Los Angeles, that i. simply impossible. Even when thousands of volunteers devote dozens of hours to such “a herculean task,” it takes three days to finish counting and Item Number: 5.
MARTINV. CITY OF BOISE 21
even then “not everybody really gets counted."° best one think Los Angele ' unique, our circuit is home to many of the largest homeless populations nationwide.”
If cities do manage to cobble together the resources for such a system, what happens if officials (much less
volunteers) miss a homeless individual during their daily count and police issue citations under the false impression that the number of shelter beds exceeds the number of
homeless people that night? According to the panel’s
opinion, that city has violated the Eighth Amendment,
thereby potentially leading to lawsuits for significant monetary damages and other relief.
9 Matt Tinoco, LA Coum Im Hrmieless, But Cnuritirig Everybody Is Virtually Impo.\'.i'ihIe, L/\isl (Jan. 22, 2019, 2:08 PM), https://laist.com/2019/01/22/los angeles homeless count 2019 how v olunteer.php. The panel conceded the imprecision of such counts in its opinion. See Martin, 902 F.3d at 1036 n.l (acknowledging that the count of homeless individuals “is not always precise“). But it went on to disregard that fact when tying a city's ability to enforce its laws to these counts.
"’ The U.S. Department olillousing and Urban Development‘s 2018 Annual Ilomeless Assessment Report to Congress reveals that municipalities within our circuit have among the highest homeless populations in the country. In Los Angeles City and County alone, 49,955 people experienced homelessness in 201 8. The number was 12,1 12 people in Seattle and King County, Washington, and 8,576 people in San Diego City and County, Califomia. See supra note 1, at 18, 20. In 2016, Las Vegas had an estimated homeless population ol‘7,509 individuals, and Calil'omia’s SantaClaraCounty had 6,556. Joaquin Palomino, Hr)wMLmy People Live On Our Street?, S.F. Chronicle (June 28, 2016), https://projects.slchronicle.com/sllhomeless/numbers.
Item Number: 5.
22 MARTINV. CITY OF BOISE
And what if local governments (understandably) lack the resources necessary for such a monumental task?" They
have no choice but to stop enforcing laws that prohibit public sleeping and camping.“ Accordingly, our panel's decision " Citics can instcad providc sullieient housing for every homelcss individual, but the cost would bc prohibitively expensive for most local governments. Los Angeles, for cxamplc, would nccd to spcnd $403.4 million to house every homelcss individual not living in a vehiclc. See Los Angeles Homeless Services Authority, Report on Emergcncy Framework to Ilomclcssness Plan 13 (Junc 2018),
https:// scts.doeumcnteloudorgdoeumcnts/4550980/LAIISA—Sheltcring— Rcport.pdl. In San Franei o, building new ccntcrs to provide a mere 400 additional shcltcr spaces was estimated to cost betwccn $10 million and $20 million, and would rcquirc $20 million to $30 million to operate cach ycar. See Ileathcr Knight, A Better Model, A Better ResuIi?, S.F.
Chronicle (Junc 29, 2016), https://projccts.slchronielc.com/sll homeless/shclters. Perhaps thesc siaggcring sums arc why the pancl wcnt out ol'its way to state that it “in no way diciatc[s] to thc City that it must provide sullieient sheltcr for thc homeless.” Martin, 902 F.3d at 1048. ” Indccd, in thc Icw short months sincc thc pancl’s dccision, scveral cities havc thrown up thcir hands and abandoncd any attempt to enlorcc such laws. See, e.g., Cynthia Ilubcrt, Sacramento County Cleared Homeless Camps‘ All Year. Now 1: Ha.\' Strip/led Citing Campers, Sacramento Bee (Sept. 18, 2019, 4:27 PM), https://www.sacbec.eom/nc ws/loeal/homclcss/article218605025.html (“Sacramento County park rangcrs have suddenly stoppcd issuing citations altogcther alter a federal court ruling this month.”); Miehacl Ellis Langlcy, Policing?omeles. ‘S, Golden State Ncwspapcrs (Feb. 22, 2019), http://www.goldcnstatenews papcrs.eom/traey prcss/news/policing—homelcssness/article 5Ie6a9ca— 36424 1e9—9b25—376l0el2dbac.html (SherilI Pat Withrow stating that, “[a]s far as camping ordinances and things like that, we’re probably holding oIl'on [issuing citations] for a while” in light ol‘Muriin v. City of Boise); Kclsie Morgan, Mos ' Lake Sees Spike in H()m€I€.Y.Y Activity Following 9!}; Circuit Court De siori, KXLY (Oct. 2, 2018, 12:50 PM), https://www.kxly.com/news/moscs—lake—sees—spikc—in—homeless—aetivity— lollowing—9th—circuit—eourt—dccision/80177257](“Because the City of Moses Lakc docs not currently havc a homeless shclter, city ollicials can Item Number: 5.
MARTINV. CITY OF BOISE 23
effectively allows homeless individuals to sleep and live wherever they wish on most public property. Without an
absolute confidence that they can house every homeless
individual, city officials will be powerless to a
'
t residents
lodging valid complaints about the health and safety oftheir neighborhoods.”
As if the panel’s actual holding wasn’t concerning
enough, the logic ofthe panel’s opinion reaches even further in scope. The opinion reasons that because “r . ting the need to . . . engage in [] life-sustaining activities is impossible," punishing the homeless for engaging in those actions in public violates the Eighth Amendment. Martin, 902 F.3d at 1048. What else is a life-su aining activity? Surely bodily functions. By holding that the Eighth
Amendment proscribes the criminalization of involuntary conduct, the panel's decision will inevitably result in the no longer penalize people for sleeping in public arezLs.”);Brandon Pho, Buenu Park Residents Exjzrcss 0/Iprlsitirm to Possible Hr)I:tcleSs Shelter, Voice oIOC (Feb. 14, 2019), https://voiceol‘oc.org/2019/02/buena—park— residents—express—opposition—to—possible—homeless—shelter/ (stating that Judge David Caner ofthe U.S. District Court for the Central District of Cztlifomia has “wam[ed] Orange County cities to get more shelters online or risk the inability the enforce their ztnti—eampingordinances”); Nick Welsh, Court Rules to Protect Sleeping in Public: sum Barbara City Parks Sub/‘actofOrigaing Debate, Santa Barbara Indep. (Oct. 31, 2018), http://www.independent.eom/news/2018/oct/3l/court—rules—protect— sleeping—public/‘hum (“In the wake of whats known (Ls ‘the Boise decision,’ Santa Barbara city police found themselves scratching their heads over what they could and could not issue citations for.”). ” In 2017, for example, San Francisco received 32,272 complaints about homeless encampments to its 3] l—line. Kevin Fagan, ThcSi'tuuti'ori On The Streets, S.F. Chronicle (June 28, 2018),
https://projects.slchronielecom/sllhomeless/2018—sIaie—ol1homelessness.
Item Number: 5.
24 MARTINV. CITY OF BOISE
striking down of laws that prohibit public defecation and urination.“ The panel's reasoning also casts doubt on public safety laws restricting drug paraphernalia, for the use of hypodermic needles and the like is no le involuntary for the homeles. suffering from the scourge ofaddiction than is their sleeping in public.
It is a timeless adage that states have a “universally
acknowledged power and duty to enact and enforce all such laws . . . as may rightly be deemed nece sary or expedient for the safety, health, morals, comfort and welfare of its people.” Knoxville Iran Co. v. Harbimn, 183 U.S. 13, 20 (1901) (internal quotations omitted). I fear that the panel’s dec ion will prohibit local governments from ful?lling their duty to enforce an array of public health and safety laws.
Halting enforcement of such laws will potentially wreak havoc on our communities.” As we have already begun to
witness, our neighborhoods will soon feature “[t]ents . . . " See llcatcr Knight, 1:3‘No Laughing Matter SF Forming Poop Patrol :0 Keep Sidewalks Clean, S.F. Chroniclc (Aug. 14, 2018), hltps://www.slbhrnmclc.com/bztyarca/hcztlhcrknight/arliclc/Il—s—no— lztughing—mattcr—SF—Ibrming—Pnop—13l535l7.php.
“See Anna Gonnan and Kaiser Ilcztllh News, Medim/al Dismse.vAre In/ming CuIifb711ia'sHr)meIe.s'.\', Thc Atlantic (Mar. 8, 2019), htlps'//www.thcatlantic.com/hcallh/archivc/2019/03/typhus—lubcrculos1s— mcdic l—disca ‘s—sprcading—homclcss/584380/ (dcscribing lhc rcccnt outbrcztks of typhus, Ilcpalitis A, and shigcllosis (Ls “diszLslcr[s] and [a] public—hcalth crisis“ and noting that such “d . s spread quickly and widcly among pcoplc living oulsidc or in shcltcrs ).
Item Number: 5.
MARTINV. CITY OF BOISE 25
equipped with mini refrigerators, cupboards, televisions, and heaters, [that] vie with pedestrian traffic" and “human waste appearing on sidewalks and at local playgrounds.""
A Los Angeles Public Sidewalk
II.
The panel's fanciful merits-determination is accompanied by a no-less~inventive series of procedural rulings. The panel’s opinion also misconstrues two other areas of Supreme Court precedent concerning limits on the parties who can "' Scott Johnson and Pctcr Kicfcr, L/1's Battle /br Venice Beach:
Hameless Surge Pm Holb/warzdlvPmgm~.n've Ideals m the Ten, Ilollywood Rcportcr (Jan. II, 2019, 6:00 AM),
https://www.holIywoodrcportcncom/l'caturcs/las—homclcss— surgc—puLs-— hollywoods—prog;rcssivc—idcals—tcst—I I 74599.
Item Number: 5.
26 MARTINV. CITY OF BOISE
bring § 1983 challenges for violations of the Eighth
Amendment.
A.
The panel erred in holding that Robert Martin and Robert Anderson could obtain prospective relief under Heck v.
Humphrey and its progeny. 512 U.S. 477 (1994). As
recognized by Judge Owens's dissent, that conclusion cuts against binding precedent on the issue.
The Supreme Court has stated that Heck bars § 1983
claims if success on that claim would “necessarily
demonstrate the invalidity of [the plaintiffs] confinement or its duration." Wilkinson v. Dotson, 544 U.S. 74, 82 (2005); see alxa Edwardr v. Balisok, 520 U.S. 641, 648 (1997)
(stating that Heck applies to claims for declaratory relief).
Martin and Anderson's prospective claims did just that.
Those plaintiffs sought a declaration that the Ordinances under which they were convicted are unconstitutional and an injunction against their future enforcement on the grounds of unconstitutionality. It is clear that Heck bars these claims because Martin and Anderson nec rily seek to demonstrate the invalidity oftheir previous convictions.
The panel opinion relies on Edwardx to argue that Heek
does not bar plaintiffs’ requested relief, but Edwards cannot bear the weight the panel puts on it. In Edwards, the plaintiff sought an injunction that would require prison officials to date-stamp witnes. .tatements at the time received. 520 U.S. at 643. The Court concluded that requiring prison officials to date-stamp witness statements did not necessarily imply the invalidity of previous determinations that the prisoner was Item Number: 5.
MARTINV. CITY OF BOISE 27
not entitled to good-time credits, and that Heck, therefore, did not bar prospective injunctive relief. Id. at 648.
Here, in contra , a declaration that the Ordinances are unconstitutional and an injunction against their future enforcement necessarily demonstrate the invalidity of the plaintiffs’ prior convictions. According to data from the U.S.
Department ofl-lousing and Urban Development, the number of homele individuals in Boise exceeded the number of
available shelter beds during each of the years that the plaintiffs were cited.” Under the panel's holding that “the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property” “as long as there is no option of sleeping indoors,” that data nece rily
demonstrates the invalidity of the plaintiffs’ prior
convictions. Martin, 902 F.3d at 1048.
B.
The panel also erred in holding that Robert Martin and
Pamela Hawkes, who were cited but not convicted of
violating the Ordinances, had standing to sue under the Eighth Amendment. In so doing, the panel created a circuit split with the Fifth Circuit.
The panel relied on Ingraham v. Wright, 430 U.S. 651
(1977), to ?nd that a plaintiff “need demonstrate only the '7 See U.S. Dcp’t olillous. & Urban Dcv., PIT Dala Smcc 2007, hllps://www.hudcxchangcjnlb/rcsourccs/documcnts/2007—2018—PIT— Counls—by—CoC.xlsx;U.S. Dcp‘Lol'Ilous. & Urban Dcv., IIIC DztlztSince 2007, hltps://www.hudcxchzmgc.inlb/rcsourccs/documcnls/2007—2018— IIIC—Counls—by—CoC.xlsx.Boisc is within Ada County and listed undcr CoC codc ID—500.
Item Number: 5.
28 MARTINV. CITY OF BOISE
initiation of the criminal process against him, not a
conviction,” to bring an Eighth Amendment challenge.
Martin, 902 F.3d at 1045. The panel cites Ingmham's
observation that the Cruel and Unusual Punishments Clause circumscribes the criminal process in that “it imposes
substantive limits on what can be made criminal and punished as such.” Id. at 1046 (citing Ingmham, 430 U.S. at 667).
This reading of Ingraham, however, cheny picks isolated statements from the decision without considering them in their accurate context. The Ingraham Court plainly held that “Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees
traditionallyas. ciatedwithcriminalprosecutions." 430U.S. at 671 n.40. And, “the State does not acquire the power to punish with which the Eighth Amendment is concerned until a?er it has secured a formal adjudication of guilt.” Id. (emphasisadded). As the Ingraham Courtrecognized,“[T]he decisions of [the Supreme] Court construing the proscription against cruel and unusual punishment con?rms that it was designed to protect those convicted of crimes." Id. at 664 (emphasis added). Clearly, then, Ingraham stands for the proposition that to challenge a criminal statute as violative of the Eighth Amendment, the individual must be convicted of that relevant crime.
The Fifth Circuit recognized this limitation on standing in Johnson v. City of'DaIIa.r, 61 F.3d 442 (5th Cir. 1995).
There, the court confronted a similar action brought by homeless individuals challenging a sleeping in public
ordinance. Johnson, 61 F.3d at 443. The court held that the plaintiffs did not have standing to raise an Eighth
Amendment challenge to the ordinance because although
“numerous tickets ha[d] been issued . . . [there was] no indication that any Appellees ha[d] been convicted" of
Item Number: 5.
MARTINV. CITY OF BOISE 29
violating the sleeping in public ordinance. Id. at 445. The Fifth Circuit explained that Ingraham clearly required a plaintiff be convicted under a criminal statute before
challenging that statute's validity. Id. at 444 45 (citing Robinson, 370 U.S. at 663; Ingmham, 430 U.S. at 667).
By pennitting Martin and I-Iawkes to maintain their
Eighth Amendment challenge, the panel’s decision created a circuit split with the Fifth Circuit and took our circuit fa.r a?eld from “[t]he primary purpose of(the Cruel and Unusual Punishments Clause) . . . [which is] the method or kind of punishment imposed for the violation of criminal statutes.” Ingmham, 430 U.S. at 667 (quoting Powell, 392 U.S.
at 531 32.
III.
None of us is blind to the undeniable suffering that the homeless endure, and I understand the panel’s impulse to help such a vulnerable population. But the Eighth Amendment is not a vehicle through which to critique public policy choices or to hamstring a local government's enforcement of its criminal code. The panel's decision, which effectively strikes down the anti-camping and anti~sleeping Ordinances ofBoise and that ofcountle ‘ ‘, ifnot all, cities within ourjurisdiction, has no legitimate basis in current law.
I am deeply concerned about the consequences of our
panel’s unfortunate opinion, and I regret that we did not vote to reconsider this ‘e en banc. I respectfully dissent.
Item Number: 5.
30 MARTINV. CITY OF BOISE
BENNETT, Circuit Judge, with whom BEA, IKUTA, and
R. NELSON, Circuit Judges, join, and with whom
M. SMITH, Circuit Judge, join as to Part II, dissenting from the denial of rehearing en banc:
Ifullyjoin Judge M. Smith’s opinion dissenting from the denial of rehearing en banc. I write separately to explain that except in extraordinary circumstances not present in this case, and based on its text, tradition, and original public meaning, the Cruel and Unusual Punishments Clause of the Eighth
Amendment does not impose substantive limits on what
conduct a state may criminalize.
I recognize that we are, of course, bound by Supreme
Court precedent holding that the Eighth Amendment
encompasses a limitation “on what can be made criminal and punished as such." Ingraham v. Wright, 430 U.S. 651, 667 (1977) (citing Robinson v. California, 370 U.S. 660 (1962)).
However, the Ingraham Court speci?cally “recognized [this] limitation ' ' one to be applied sparingly." Id. As Judge M.
Smith’s d 'ent ably points out, the panel ignored Ingmham's cleardirection that Eighth Amendment scrutiny attaches only after a criminal conviction. Because the panel's decision, which allows pre-conviction Eighth Amendment challenges, is wholly inconsistent with the text and tradition ofthe Eighth Amendment, I respectfully dissent from our decision not to rehear this case en banc.
The text of the Cruel and Unusual Punishments Clause is virtually identical to Section 10 ofthe English Declaration of Item Number: 5.
MARTINV. CITY OF BOISE 31
Rights of 1689,‘and there is no question that the drafters of the Eighth Amendment were in?uenced by the prevailing
interpretation of Section 10. See Salem v. Helm, 463 U.S. 277, 286 (1983) (observing that one of the themes of the founding era “was that Americans had all the rights of
English subjects" and the Framers’ “use of the language of the English Bill of Rights is convincing proof that they intended to provide at least the same protection”); Timbs v.
Indiana, 586 U.S.
i (2019) (Thomas, J., concurring)
(“[T]he text ofthe Eighth Amendment was ‘based directly on . . . the Virginia Declaration of Rights,’ which ‘adopted verbatim the language of the English Bill of Rights.’”
(quoting Browning—Ferrix Indus. of Vt., Inc. v. Kelca
Di.r])0.ral,Inc., 492 U.S. 257, 266 (1989)). Thus, “not only is the original meaning of the 1689 Declaration of Rights
relevant, but also the circumstances of its enactment, insofar as they display the particular ‘rights of English subjects’ it was designed to vindicate." Harmelin v. Michigan, 501 U.S. 957, 967 (1991) (Scalia, J., concurring).
Justice Scalia’s concurrence in Harmelin provides a
thorough and well~researched disc .sion of the original public meaning of the Cruel and Unusual Punishments
Clause, including a detailed overview of the history of Section 10 of the English Declaration of Rights. See id. at 966 85 (Scalia, J., concurring). Rather than reciting Justice Scalia's Harmelin disc ssion in its entirety, I provide only a broad description ofits historical analysis. Although the issue Justice Scalia confronted in Harmelin was whether the
' 1 Wm. & Mary, 2d Scss., ch. 2, 3 Suit. at Largc 440, 441 (1689) (Section 10 ofthc English Dcclaration olikights) (“cxccssivc Bailc ought not to bc rcquircd, nor cxccssivc Fines imposcd, nor crucll and unusuall Pumshmcnts inlliclcdf’).
Item Number: 5.
32 MARTINV. CITY OF BOISE
Framers intended to graft a proportionality requirement on the Eighth Amendment, SE8 id. at 976, his opinion’s historical exposition is instructive to the issue of what the Eighth Amendment meant when it was written.
The English Declaration ofRights's prohibition on “cruell and unusuall Punishments” is attributed to the arbitrary punishments imposed by the Kings Bench following the
Monmouth Rebellion in the late 17th century. Id. at 967 (Scalia, J., concurring). “Historians have viewed the English provision as a reaction either to the ‘Bloody Assize,’ the treason trials conducted by Chief Justice Jeffreys in 1685 after the abortive rebellion ofthe Duke of Monmouth, or to the perjury prosecution of Titus Oates in the same year.” Ingraham, 430 U.S. at 664 (footnote omitted).
Presiding over a special commission in the wake of the
Monmouth Rebellion, Chief Justice Jeffreys imposed
“vicious punishments for treason,” including “drawing and quartering, burning of women felons, beheading, [and]
disemboweling.” Harmelin, 501 U.S. at 968. In the view of some historians, “the story ofThe Bloody Assizes . . . helped to place constitutional limitations on the crime oftreason and to produce a bar against cruel and unusual Punishments.” Furman v. Georgia, 408 U.S. 238, 254 (1972) (Douglas, J., concurring).
More recent scholarship suggests that Section 10 of the Declaration of Rights was motivated more by Jeffreys’s
treatment of Titus Oates, a Protestant cleric and convicted perjurer. In addition to the pillory, the scourge, and life imprisonment, Jeffreys sentenced Oates to be “stript of [his] Canonical Habits." Harmelin, 501 U.S. at 970 (Scalia, J., concurring) (quoting Second Trial ofTitus Oates, 10How. St.
Item Number: 5.
MARTINV. CITY OF BOISE 33
Tr. 1227, 1316 (K.B. 1685)). Years after the sentence was carried out, and months after the p ge of the Declaration of Rights, the House of Commons passed a bill to annul
Oates s sentence. Though the House of Lords never agreed, the Commons issued a report asserting that Oates's sentence was the sort of “cruel and unusual Punishment” that
Parliament complained of in the Declaration of Rights.
Harmelin, 501 U.S. at 972 (citing 10 Journal ofthe House of Commons 247 (Aug. 2, 1689)). In the view ofthe Commons
and the dissenting Lords, Oates's punishment was “‘out ofthe Judges’ Power,’ ‘contrary to Law and ancient practice,’ without ‘Precedents' or ‘express Law to warrant,’ ‘unusual,’ ‘illegal,’ or imposed by ‘Pretence to adiscretionary Power.” Id. at 973 (quoting 1 Journals of the House of Lords 367 (May 31, 1689); 10 Journal of the House of Commons 247
(Aug. 2, 1689)).
Thus, Justice Scalia concluded that the prohibition on
“cruell and unusuall punishments” as used in the English Declaration, “was primarily a requirement that judges
pronouncing sentence remain within the bounds of common» law tradition.” Harmelin, 501 U.S. at 974 (Scalia, J.,
concurring) (citing Ingraham, 430 U.S. at 665; 1 J. Chitty, Criminal Law 710 12 (5th Am. ed. 1847); Anthony F.
Granucci,Nar Cruel and Unusual Punixhmentx In/listed:The Original Meaning, 57 Calif. L. Rev. 83‘), S5‘) (1969)).
But Justice Scalia was careful not to impute the English meaning of “cruell and unusuall" directly to the Framers of our Bill of Rights: “the ultimate question is not what ‘cruell and unusuall punishments’ meant in the Declaration of
Rights, but what its meaning was to the Americans who
adopted the Eighth Amendment.” Id. at 975. “Wrenched out of its common-law context, and applied to the actions ofa Item Number: 5.
34 MARTINV. CITY OF BOISE
legislature . . . the Clause disables the Legislature from authorizing particular forms or ‘modes’ of
punishment speci?cally, cruel methods ofpunishment that are not regularly or customarily employed." Id. at 976.
As support for his conclusion that the Framers ofthe Bill of Rights intended for the Eighth Amendment to reach only certain punishment methods, Justice Scalia looked to “the state ratifying conventions that prompted the Bill of Rights." Id. at 979. Patrick Henry, speaking at the Virginia Ratifying convention, “decried the absence ofa bill ofrights," arguing that “Congress will loose the restriction of not . . . inflicting cruel and unusual punishments . What has distinguished
our ancestors? They would not admit of tortures, or cruel and barbarous punishment.” Id. at 980 (quoting 3 J. Elliot, Debates on the Federal Constitution 447 (2d ed. 1854)). The Massachusetts Convention likewise heard the objection that, in the absence ofa ban on cruel and unusual punishments, “racks and gibbets may be amongst the most mild instruments of [Congress's] discipline." Id. at 979 (internal quotation marks omitted) (quoting 2 J. Debates on the Federal
Constitution, at 111). These historical sources ‘‘confirm[] the view that the cruel and unusual punishments clause was
directed at prohibiting certain methods of punishment." Id. (internal quotation marks omitted) (quoting Granucci,
57 Calif. L. Rev. at 842) (emphasis in Hdrmelin).
In addition, early state court decisions “interpreting state constitutional provisions with identical or more expansive wording (i.e., ‘cruel or unusual’) concluded that these provisions . . . proscribe[d] . . . only certain modes of punishment.” Id. at 983; See also id. at 982 (“Many other Americans apparently agreed that the Clause only outlawed certain modes of punishment.”).
Item Number: 5.
MARTINV. CITY OF BOISE 35
In short, when the Framers drafted and the several states rati?ed the Eighth Amendment, the original public meaning of the Cruel and Unusual Punishments Clause was “to
proscribe . . . methods of punishment.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). There is simply no indication in the history ofthe Eighth Amendment that the Cruel and Unusual Punishments Clause was intended to reach the substantive authority of Congress to criminalize acts or status, and certainly not before conviction. Incorporation, of course, extended the reach of the Clause to the States, but worked no change in its meaning.
I].
The panel here held that “the Eighth Amendment
prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter." Martin v. City of Boise, 902 F.3d 1031, 1048 (9th Cir. 2018). In so holding, the panel allows challenges ' " rting this prohibition to be brought in advance ofany conviction. That holding, however, has nothing to do with the punishment that the City of Boise imposes for those offenses, and thus nothing to do with the text and tradition of the Eighth Amendment.
The panel pays only the barest attention to the Supreme Court's admonition that the application of the Eighth
Amendment to substantive criminal law be
“sparing[],"Martin, 902 F.3d at 1047 (quoting Ingraham, 430 U.S. at 667), and its holding here is dramatic in scope and completely unfaithful to the proper interpretation of the Cruel and Unusual Punishments Clause.
Item Number: 5.
36 MARTINV. CITY OF BOISE
“The primary purpose of (the Cruel and Unusual
Punishments Clause) has always been considered, and
properly so, to be directed at the method or kind of
punishment imposed for the violation of criminal statutes.” Ingraham, 430 U.S. at 667 (internal quotation marks omitted) (quoting Powell v. Texas, 392 U.S. 514, 531 32 (1968)). It should, therefore, be the “rare case” where a court invokes the Eighth Amendment's eriminalization component. Jones v.
City of'LosArigeles, 444 F.3d 1118, 1146 (9th Cir. 2006) (Rymer, J., dis. nting), vacated, 505 F.3d 1006 (9th Cir. 2007).‘And permitting a pre-conviction challenge to a local ordinance, as the panel does here, is ?atly inconsistent with the Cruel and Unusual Punishments Clause’s core
constitutional function: regulating the methods ofpunishment that may be in?icted upon one convicted of an offense.
Harmelin, 501 U.S. at 977, 979 (Sealia, J., concurring). As Judge Rymer, dissenting in .lories, observed, “the Eighth Amendment’s ‘protections do not attach until after conviction and sentence.’”’444 F.3d at 1147 (Rymer, J., dissenting) ‘Jrznes,ofcoiirse, was vacated and lacks pre dential value. 505 F.3d 1006 (9th Cir. 2007). But the panel here resiiscitated ./one.v’s errant holding, including, apparently, its application of the Cruel and Unusual Punishments Clause in the absence olia criminal conviction. We should have taken this case en banc to correct this misinterpretation olithe Eighth Amendment.
’ We have emphasized the need to proceed cautiously when extending the reach o1'the Cruel and Unusual Punishments Claiise beyond regulation of the methods ofpunishment that may be in?icted upon conviction for an offense. See United States v. Ritter, 752 F.2d 435, 438 (9th Cir. 1985) (repeating [rigru}ium’s direction that “this particular use of the cruel and unusual punishment clause is to be applied sparingly” and noting that Robinson represents “the rare type ofcase in which the clause has been used to limit what may be made criminal”), see also United States v.
Ayala, 35 F.3d 423, 426 (9th Cir. 1994) (limiting application olikobirixrm Item Number: 5.
MARTINV. CITY OF BOISE 37
(internal alterations omitted) (quoting Graham v. Connor, 490 U.S. 386, 392 n.6 (l‘)8‘))).‘
The panel's holding thus permits plaintiffs who have
never been convicted of any offense to avail themselves ofa constitutional protection that, historically, has been concerned with prohibition of “only certain modes of punishment." Harmelin, 501 U.S. at 983; we also United States v. Quinn, 123 F.3d 1415, 1425(l 1thCir. 1997) (citingHarmelin forthe proposition that a “plurality of the Supreme Court . . . has rejected the notion that the Eighth Amendment’s protection from cruel and unusual punishment extends to the type of offense for which a sentence is imposed”).
Extending the Cruel and Unusual Punishments Clause to
encompass pre~conviction challenges to substantive criminal law stretches the Eighth Amendment past its breaking point.
I doubt that the drafters ofour Bill of Rights, the legislators of the states that rati?ed it, or the public at the time would ever have imagined that a ban on “cruel and unusual
punishments" would permit a plaintiff to challenge a
substantive criminal statute or ordinance that he or she had not even been convicted ofviolating. We should have taken this case en banc to confirm that an Eighth Amendment
challenge does not lie in the absence of a punishment
following conviction for an offense.
to crimcs lacking an actus rcus). Thc pzmcl’s holding hcrc throws that caution to thc wind.
‘ Judgc Friendly also cxprcsscd “considcmblc doubt that thc cruel and unusual punishment clause is properly ztpplicztblc at all until allcr conviction and scntcncc.“./ohnsrm v. Glick, 481 F.2d 1028, 1032 (2d Cir. 1973).
Item Number: 5.
38 MARTINV. CITY OF BOISE
>3: * iv
At common law and at the founding, a prohibition on
“cruel and unusual punishments” was simply that: a limit on the types of punishments that government could inflict
following a criminal conviction. The panel strayed far from the text and history of the Cruel and Unusual Punishments Clause in imposing the substantive limits it has on the City of Boise, particularly as to plaintiffs who have not yet even been convicted ofan offense. We should have reheard this case en banc, and I respectfully dissent.
OPINION
BERZON, Circuit Judge:
“The law, in its majestic equality, forbids rich
and poor alike to sleep under bridges, to beg
in the streets, and to steal their bread.”
Anatole France, The Red Lily
We consider whether the Eighth Amendment’s
prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to. We conclude that it does.
The plaintiffs-appellants are six current or former
residents of the City of Boise (“the City"), who are homeless or have recently been homeless. Each plaintiff alleges that, between 2007 and 2009, he or she was cited by Boise police Item Number: 5.
MARTINV. CITY OF BOISE 39
for violating one or both of two city ordinances. The first, Boise City Code § 9-10-02 (the “Camping Ordinance”),
makes it a misdemeanor to use “any ofthe streets, sidewalks, parks, or public places as a camping place at any time." The Camping Ordinance de?nes “camping" as “the use ofpublic property as a temporary or permanent place of dwelling, lodging, or residence." Id. The second, Boise City Code § 6- 01-05 (the “Disorderly Conduct Ordinance”), bans
“[o]ccupying, lodging, or sleeping in any building, structure, or public place, whether public or private . . . without the permission ofthe owner or person entitled to possession or in control thereof."
All plaintiffs seek retrospective relief for their previous citations under the ordinances. Two ofthe plaintiffs, Robert Anderson and Robert Martin, allege that they expect to be cited under the ordinances again in the future and seek declaratory and injunctive reliefagainst future prosecution.
In ,/anex v. City qf'L0sAngeles, 444 F.3d 1118, 1138 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007), a panel of this court concluded that “so long as there is a greater number of homeless individuals in Los Angeles than the number of available beds [in shelters]" for the homeless, Los Angeles could not enforce a similar ordinance against homeless
individuals “for involuntarily sitting, lying, and sleeping in public.” Jones is not binding on us, as there was an
underlying settlement between the parties and our opinion was vacated as a result. We agree with ,/0nes’s reasoning and central conclusion, however, and so hold that an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them. Two ofthe plaintiffs, we further hold, may be entitled Item Number: 5.
40 MARTINV. CITY OF BOISE
to retrospective and prospective relief for violation of that Eighth Amendment right.
I. Background
The district court granted summaryjudgment to the City
on all claims. We therefore review the record in the light most favorable to the plaintiffs. Talan v. Cotton, 134 S. Ct. 1861, 1866 (2014).
Boise has a signi?cant and increasing homeless
population. According to the Point-in-Time Count (“PIT
Count") conducted by the Idaho Housing and Finance
Association, there were 753 homele individuals in Ada
County the county ofwhich Boise is the seat in January
2014, 46 of whom were “unsheltered," or living in places unsuited to human habitation such as parks or sidewalks. In 2016, the last year for which data is available, there were 867 homeless individuals counted in Ada County, 125 of
whom were unsheltered.' The PIT Count likely
underestimates the number of homeless individuals in Ada County. It is “widely recognized that a one-night point in ' The United States Department olil Iousing and Urban Development (“IIUD") requires local homeless assistance and prevention networks to conduct an annual count of homeless individuals on one night each January, known as the PIT Count, as a condition of receiving federal liinds. State, local, and federal governmental entities, as well as private service providers, rely on the PIT Count as a “critical source ofdaia” on homelessness in the United States. The parties acknowledge that the PIT Count is not always precise. The City’s Director of Community Partnerships, Diana Lachiondo, testilied that the PIT Count is “not always the . . . best resource for numbers,” but also stated that “the point—in—time count is our best snapshot” for counting the number of homeless individuals in a particular region, and that she “cannot give . . . any other number with any kind oIconl'idence.”
Item Number: 5.
MARTINV. CITY OF BOISE 41
time count will undercount the homeless population," as many homeless individuals may have access to temporary
housing on a given night, and as weather conditions may affect the number ofavailable volunteers and the number of homeless people staying at shelters or accessing services on the night of the count.
There are currently three homeless shelters in the City of Boise offering emergency shelter services, all run by private, nonprofit organizations. As far as the record reveals, these three shelters are the only shelters in Ada County.
One shelter “Sanctuary” is operated by Interfaith
Sanctuary Housing Services, Inc. The shelter is open to men, women, and children of all faiths, and does not impose any religious requirements on its residents. Sanctuary has 96 beds reserved for individual men and women, with several
additional beds reserved for families. The shelter uses ?oor mats when it reaches capacity with beds.
Because of its limited capacity, Sanctuary frequently has to turn away homeless people seeking shelter. In 2010,
Sanctuary reached full capacity in the men’s area “at least halfofevery month," and the women’s area reached capacity “almost every night of the week." In 2014, the shelter
reported that it was full for men, women, or both on 38% of nights. Sanctuary provides beds first to people who spent the previous night at Sanctuary. At 9:00 pm each night, it allots any remaining beds to those who added their names to the shelter’s waiting list.
Item Number: 5.
42 MARTINV. CITY OF BOISE
The other two shelters in Boise are both operated by the Boise Rescue Mission (“BRM"), a Christian nonpro?t
organization. One ofthose shelters, the River ofLife Rescue Mission (“River of Life”), is open exclusively to men; the other, the City Light Home for Women and Children (“City Light"), shelters women and children only.
BRM's facilities provide two primary “programs" for the homel the Emergency Services Program and the New Life
Disciple. ip Program.’ The Emergency Services Program
provides temporary shelter, food, and clothing to anyone in need. Christian religious services are offered to those seeking shelter through the Emergency Services Program. The
shelters display messages and iconography on the walls, and the intake form for emergency shelter guests includes a religious message.‘
Homeless individuals may check in to either BRM facility between 4:00 and 5:30 pm. Those who arrive at BRM
facilities between 5:30 and 8:00 pm may be denied shelter, depending on the reason for their late arrival; generally, anyone arriving after 8:00 pm is denied shelter.
Except in winter, male guests in the Emergency Services Program may stay at River of Life for up to 17 consecutive Z The record suggests that BRM provides some limited additional non—emergeney shelter programming which, like the Discipleship Program, has overtly religious components.
’ The intake form states in relevant part that “We are a Gospel Rescue Mission. Gospel means ‘Good News,’ and the Good News is that Jesus saves us lrom sin past, present, and future. We would like to share the Good News with you. Ilztve you heard ol‘Jesus‘.7 . . . Would you like to know more about him?"
Item Number: 5.
MARTINV. CITY OF BOISE 43
nights; women and children in the Emergency Services
Program may stay at City Light for up to 30 consecutive nights. After the time limit is reached, homeless individuals who do not join the Discipleship Program may not return to a BRM shelter for at least 30 days.‘ Participants in the Emergency Services Program must return to the shelter every night during the applicable 17~day or 30-day period; if a resident fails to check in to a BRM shelter each night, that resident is prohibited from staying overnight at that shelter for 30 days. BRM's rules on the length ofa person’s stay in the Emergency Services Program are suspended during the winter.
The Discipleship Program is an “intensive, Christ-based residential recovery program" of which “[r]eligious study is the very essence." The record does not indicate any limit to how long a member ofthe Discipleship Program may stay at a BRM shelter.
The River of Life shelter contains 148 beds for
emergency use, along with 40 ?oor mats for over?ow;
78 additional beds serve those in non-emergency shelter programs such as the Discipleship Program. The City Light shelter has 110 beds for emergency services, as well as 40 ?oor mats to handle over?ow and 38 beds for women in nomemergency shelter programs. All told, Boise’s three
homeless shelters contain 354 beds and 92 over?ow mats for homeless individuals.
‘ Thc panics dispute the cxicnt to which BRM acluztlly cnlorccs the 17—and 30—daylimits.
Item Number: 5.
44 MARTINV. CITY OF BOISE
A. The Plaintiffs
Plaintiffs Robert Martin, Robert Anderson, Lawrence Lee Smith, Basil E. Humphrey, Pamela S. Hawkes, and Janet F.
Bell are all homeless individuals who have lived in or around Boise since at least 2007. Between 2007 and 2009, each
plaintiffwas convicted at least once ofviolating the Camping Ordinance, the Disorderly Conduct Ordinance, or both. With one exception, all plaintiffs were sentenced to time served for all convictions; on two occasions, Hawkes was sentenced to one additional day in jail. During the same period, Hawkes was cited, but not convicted, under the Camping Ordinance, and Martin was cited, but not convicted, under the Disorderly Conduct Ordinance.
Plaintiff Robert Anderson currently lives in Boise; he is homeless and has often relied on Boise‘s shelters for housing.
In the summer of2007, Anderson stayed at River of Life as part ofthe Emergency Services Program until he reached the shelter’s 17-day limit for male guests. Anderson testified that during his 2007 stay at River of Life, he was required to attend chapel services before he was pennitted to eat dinner.
At the conclusion of his l7~day stay, Anderson declined to enter the Discipleship Program because of his religious beliefs. As Anderson was barred by the shelter's policies from returning to River of Life for 30 days, he slept outside for the next several weeks. On September 1,2007, Anderson was cited under the Camping Ordinance. He pled guilty to violating the Camping Ordinance and paid a $25 ?ne; he did not appeal his conviction.
PlaintiffRobert Martin is a former resident ofBoise who currently lives in Post Falls, Idaho. Martin returns frequently to Boise to visit his minor son. In March of2009, Martin was Item Number: 5.
MARTINV. CITY OF BOISE 45
cited under the Camping Ordinance for sleeping outside; he was cited again in 2012 under the same ordinance.
B. Procedural History
The plaintiffs ?led this action in the United States District Court for the District of Idaho in October of 2009. All plaintiffs alleged that their previous citations under the Camping Ordinance and the Disorderly Conduct Ordinance
violated the Cruel and Unusual Punishments Clause of the Eighth Amendment, and sought damages for those alleged
violations under 42 U.S.C. § 1983. Jones, 444 F.3d at
1138. Anderson and Martin also sought prospective
declaratory and injunctive relief precluding future
enforcement of the ordinances under the same statute and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 2202.
After this litigation began, the Boise Police Department promulgated a new “Special Order," effective as of January 1, 2010, that prohibited enforcement of either the Camping Ordinance or the Disorderly Conduct Ordinance against any homeless person on public property on any night when no shelter had “an available ovemight space.” City police
implemented the Special Order through a two-step procedure known as the “Shelter Protocol."
Under the Shelter Protocol, ifany shelter in Boise reaches capacity on a given night, that shelter will so notify the police at roughly 11:00 pm. Each shelter has discretion to determine whether it is full, and Boise police have no other mechanism or criteria for gauging whether a shelter is full. Since the Shelter Protocol was adopted, Sanctuary has reported that it was full on almost 40% ofnights. Although BRM agreed to the Shelter Protocol, its internal policy is never to turn any Item Number: 5.
46 MARTINV. CITY OF BOISE
person away because of a lack of space, and neither BRM shelter has ever reported that it was full.
If all shelters are full on the same night, police are to refrain from enforcing either ordinance. Presumably because the BRM shelters have not reported full, Boise police
continue to issue citations regularly under both ordinances.
In July 201 1,the district court granted summaryjudgment to the City. It held that the plaintiffs’ claims for retrospective relief were barred under the Raoker—Feldman doctrine and that their claims for prospective relief were mooted by the Special Order and the Shelter Protocol. Bell v. City of'Baixe, 834 F. Supp. 2d 1103 (D. Idaho 2011). On appeal, we
reversed and remanded. Bell v. City 0f'B0ixe,70‘) F.3d 890, 901 (9th Cir. 2013). We held that the district court erred in dismissing the plaintiffs’ claims under the R0oker—Feldman doctrine. Id. at 897. In so holding, we expressly declined to consider whetherthe favorable-termination requirement from Heck v. Humphrey, 512 U.S. 477 (1994), applied to the
plaintiffs’ claims for retrospective relief. Instead, we left the issue for the district court on remand. Bell, 709 F.3d at 897 n.l 1.
Bell further held that the plaintiffs’ claims for prospective relief were not moot. The City had not met its “heavy
burden" of demonstrating that the challenged conduct
enforcement of the two ordinances against homeless
individuals with no access to shelter “could not reasonably be expected to recur.” Id. at 898, 901 (quoting Friendr 0/"the Earth, Inc. v. Laidlaw Envtl. Servx. (TOC), Inc, 528 U.S. 167, 18‘) (2000)). We emphasized that the Special Order was a statement ofadministrative policy and so could be amended Item Number: 5.
MARTINV. CITY OF BOISE 47
or reversed at any time by the Boise Chief of Police. Id. at 899 900.
Finally, Bell rejected the City’s argument that the
plaintiffs lacked standing to seek prospective relief because they were no longer homeless. Id. at 901 & n. 12. We noted that, on summaryjudgment, the plaintiffs “need not establish that they in fact have standing, but only that there is a genuine issue of material fact as to the standing elements.” Id. (citation omitted).
On remand, the district court again granted summary
judgment to the City on the plaintiffs’ § 1983 claims. The court observed that Heck requires a § 1983 plaintiffseeking damages for “hann caused by actions whose unlawfulness
would renderaconviction or sentence invalid” to demonstrate that “the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal . . . or called into question by a federal court’s issuance ofa writ of habeas corpus.” 512 U.S. at 486 87.
According to the district court, “a judgment finding the Ordinances unconstitutional . . . necessarily would imply the invalidity of Plaintiffs’ [previous] convictions under those ordinances," and the plaintiffs therefore were required to demonstrate that their convictions or sentences had already been invalidated. As none of the plaintiffs had raised an Eighth Amendment challenge as a defense to criminal
prosecution, nor had any plaintiff successfully appealed their conviction, the district court held that all of the plaintiffs’ claims for retrospective relief were barred by Heck. The district court also rejected as barred by Heck the plaintiffs’ claim for prospective injunctive relief under § 1983,
reasoning that “a ruling in favor of Plaintiffs on even a Item Number: 5.
48 MARTINV. CITY OF BOISE
prospective § 1983 claim would demonstrate the invalidity of any con?nement stemming from those convictions.”
Finally, the district court determined that, although Heck did not bar reliefunder the Declaratory Judgment Act, Martin and Anderson now lack standing to pursue such relief. The linchpin ofthis holding was that the Camping Ordinance and the Disorderly Conduct Ordinance were both amended in
2014 to codify the Special Order’s mandate that “[l]aw
enforcement officers shall not enforce [the ordinances] when the individual is on public property and there is no available overnight shelter." Boise City Code §§ 6-01-05, 9-10-02.
Because the ordinances, as amended, pennitted camping or sleeping in a public place when no shelter space was
available, the court held that there was no “credible threat" of future prosecution. “Ifthe Ordinances are not to be enforced when the shelters are full, those Ordinances do not inflict a constitutional injury upon these particular plaintiffs . . . .” The court emphasized that the record “suggests there is no known citation ofa homeless individual under the Ordinances for camping or sleeping on public property on any night or morning when he or she was unable to secure shelter due to a lack of shelter capacity” and that “there has not been a single night when all three shelters in Boise called in to report they were simultaneously full for men, women or families." This appeal followed.
Item Number: 5.
MARTINV. CITY OF BOISE 49
II. Discussion
A. Standing
We first consider whether any of the plaintiffs has
standing to pursue prospective relief.5We conclude that there are sufficient opposing facts in the record to create a genuine issue ofmaterial fact as to whether Martin and Anderson face a credible threat ofprosecution under one or both ordinances in the future at a time when they are unable to stay at any Boise homeless shelter.‘
“To establish Article III standing, an injury must he
concrete, paiticularized, and '-tual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper v. Amnesty Int '1USA, 133 S. Ct. 1138, 1147 (2013) (citation omitted). “Although imminence is concededly a somewhat elastic concept, it cannot be
stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes that the injury is certainly impending." Id. (citation
omitted). A plaintiff need not, however, await an arrest or prosecutiontohavestandingtochallengetheconstitutionality of a criminal statute. “When the plaintiff has alleged an 5 Standing to pursue retrospective reliel‘ is not in doubt. The only threshold question alfeeting the availability olia claim for retrospective re a question we address in the next section is whether such reliel is barred by the doctrine established in Heck.
" Although the SAC is somewhat ambiguous regarding which of the plaintills seeks prospective relief, counsel for the plaintilfs made clear at oral argument that only two of the plaintills, Martin and Anderson, seek such relief, and the district court considered the standing question with respect to Martin and Anderson only.
Item Number: 5.
50 MARTINV. CITY OF BOISE
intention to engage in a course of conduct arguably affected with aconstitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief." Babbitt v.
UnitedFarm Workers Nat 'l Union, 442 U.S. 289, 298 (1979) (citation and internal quotation marks omitted). To defeat a motion for summaryjudgment premised on an alleged lack of standing, plaintiffs “ need not establish that they in fact have standing, but only that there is a genuine question ofmaterial fact as to the standing elements.” Cent. Delta WaterAgency v. United States, 306 F.3d 938, 947 (9th Cir. 2002).
In dismissing Martin and Anderson’s aims for
declaratory relief for lack of standing, the district court emphasized that Boise" ordinances, as amended in 2014,
preclude the City from i uing a citation when there is no available space at a shelter, and there is consequently no risk that either Martin or Anderson will be cited under such circumstances in the future. Viewing the record in the light most favorable to the plaintiffs, we cannot agree.
Although the 2014 amendments preclude the City from
enforcing the ordinances when there is no room available at any shelter, the record demonstrates that the City is wholly reliant on the shelters to self-report when they are full. It is undisputed that Sanctuary is full as to men on a substantial percentage of nights, perhaps as high as 50%. The City
nevertheless emphasizes that nce the adoption ofthe Shelter Protocol in 2010, the BRM facilities, River of Life and City Light, have never reported that they are full, and BRM states that it will never tum people away due to lack space.
Item Number: 5.
MARTINV. CITY OF BOISE 51
The plaintiffs have pointed to substantial evidence in the record, however, indicating that whether or not the BRM facilities are ever full or turn homeless individuals awayfbr lack Qfspace, they do refuse to shelter homeless people who exhaust the number of days allotted by the facilities.
Speci?cally, the plaintiffs allege, and the City does not dispute, that it is BRM’s policy to limit men to
17 consecutive days in the Emergency Services Program,
after which they cannot return to River of Life for 30 days; City Light has a similar 30~day limit for women and children.
Anderson testified that BRM has enforced this policy against him in the past, forcing him to sleep outdoors.
The plaintiffs have adduced further evidence indicating that River ofLife pennits individuals to remain at the shelter after 17 days in the Emergency Services Program only on the condition that they become part ofthe New Life Discipleship program, which has a mandatory religious focus. For
example, there is evidence that participants in the New Life Program are not allowed to spend days at Corpus Christi, a local Catholic program, “because it’s . . . a different sect.” There are also facts in dispute concerning whether the
Emergency Services Program itself has a religious
component. Although the City argues strenuously that the Emergency Services Program is secular, Anderson testified to the contrary; he stated that he was once required to attend chapel before being permitted to eat dinner at the River of Life shelter. Both Martin and Anderson have objected to the overall religious atmosphere of the River of Life shelter, including the Chr' ian messaging on the shelter’s intake form and the Christian iconography on the shelter walls. A city cannot, via the threat ofprosecution, coerce an individual to attend religion-based treatment programs consistently with the Establishment Clause ofthe First Amendment. Inouye v.
Item Number: 5.
52 MARTINV. CITY OF BOISE
Kemna, 504 F.3d 705, 712 13 (9th Cir. 2007). Yet at the conclusion ofa 17-day stay at River ofLife, or a 30-day stay at City Light, an individual may be forced to choose between sleeping outside on nights when Sanctuary is full (and risking arrest under the ordinances), or enrolling in BRM
programming that is antithetical to his or her religious beliefs.
The l7~day and 30-day limits are not the only BRM
policies which functionally limit access to BRM facilities even when space is nominally available. River of Life also turns individuals away if they voluntarily leave the shelter before the l7~day limit and then attempt to return within 30 days. An individual who voluntarily leaves a BRM
facility for any reason perhaps because temporary shelter is available at Sanctuary, or with friends or family, or in a hotel cannot immediately return to the shelter if
circumstances change. Moreover, BRM’s facilities may deny shelter to any individual who arrives after 5:30 pm, and generally will deny shelter to anyone arriving after 8:00 pm.
Sanctuary, however, does not assign beds to persons on its waiting list until 9:00 pm. Thus, by the time a homeless individual on the Sanctuary waiting list discovers that the shelter has no room available, it may be too late to seek shelter at either BRM facility.
So, even if we credit the City’s evidence that BRM’s
facilities have never been “full," and that the City has never cited any person under the ordinances who could not obtain shelter “due to a lack of shelter capacity," there remains a genuine ' e of material fact as to whether homeless
individuals in Boise run a credible risk of being issued a citation on a night when Sanctuary is full and they have been denied entry to a BRM facility for reasons other than shelter capacity. If so, then as a practical matter, no shelter is Item Number: 5.
MARTINV. CITY OF BOISE 53
available. We note that despite the Shelter Protocol and the amendments to both ordinances, the City continues regularly to issue citations for violating both ordinances; during the first three months of 2015, the Boise Police Department issued over 175 such citations.
The City argues that Martin faces little risk ofprosecution under either ordinance because he has not lived in Boise .'nce 2013. Martin states, however, that he i ill homele.. nd still vis Boise several times a year to visit his minor son, and that he has ‘ontinued to seek shelter at Sanctuary and River ofLife. Although Martin may no longer spend enough time in Boise to risk running afoul ofBRM’s 17-day limit, he testified that he has unsuccessfully sought shelter at River of Life after being placed on Sanctuary's waiting list, only to discover later in the evening that Sanctuary had no available beds. Should Martin return to Boise to visit his son, there is a reasonable possibility that he might again seek shelter at Sanctuary, only to discover (after BRM has closed for the night) that Sanctuary has no space for him. Anderson, for his part, continues to live in Boise and states that he remains homeless.
We conclude that both Martin and Anderson have
demonstrated a genuine issue of material fact regarding whether they face a credible risk of prosecution under the ordinances in the future on a night when they have been denied access to Boise's homeless shelters; both plaintiffs therefore have standing to seek prospective relief.
B. Heck v. Humphrey
We turn next to the impact ofHeck v. Humphrey and its
progeny on this case. With regard to retrospective relief, the Item Number: 5.
54 MARTINV. CITY OF BOISE
plaintiffs maintain that Heck should not bar their claims because, with one exception, all of the plaintiffs were sentenced to time served.7 It would therefore have been impossible for the plaintiffs to obtain federal habeas relief, as any petition for a writ of habeas corpus must be ?led while the petitioner is “in custody pursuant to the judgment of a State court.” See 28 U.S.C. § 2254(a); Spencer v. Kemna, 523 U.S. 1, 7, 17 18 (1998). With regard to prospective relief, the plaintiffs emphasize that they seek only equitable protection against future enforcement of an allegedly
unconstitutional statute, and not to invalidate any prior conviction under the same statute. We hold that although the Heck line of cases precludes most but not all of the
plaintiffs’ requests for retrospective relief, that doctrine has no application to the plaintiffs’ request for an injunction enjoining prospective enforcement ofthe ordinances.
1. The Heck Doctrine
A long line of Supreme Court case law, beginning with
Preiser v. Rodriguez, 411 U.S. 475 (1973), holds that a prisoner in state custody cannot use a § 1983 action to challenge the fact or duration ofhis or her con?nement, but must instead seek federal habeas corpus relief or analogous state relief. Id. at 477, 500. Preixer considered whether a prison inmate could bring a § 1983 action seeking an
injunction to remedyan unconstitutional deprivation ofgood~ time conduct credits. Observing that habeas corpus is the traditional instrument to obtain release from unlawful
7 Plainli1TPztmelzt llawkes was convicted of violating the Camping Ordinance or Disorderly Conduct Ordinance on lwclvc occasions; although she was usually sentenced to time served, she was twice sentenced to one additional day in jail.
Item Number: 5.
MARTINV. CITY OF BOISE 55
confinement, Preiser recognized an implicit exception from § 1983’s broad scope for actions that lie “within the core of habeas corpus” speci?cally, challenges to the “fact or
duration" of con?nement. Id. at 487, 500. The Supreme
Court subsequently held, however, that although Preiser barred inmates from obtaining an injunction to restore goodtime credits via a § 1983 action, Preiser did not “preclude a litigant with standing from obtaining by way of ancillary relief an otherwise proper injunction enjoining the
prospective enforcement ofinvalid prison regulations.” Wolff" v. MeD0rmeII, 418 U.S. 539, 555 (1974) (emphas s added).
Heck addressed a § 1983 action brought by an inmate
seeking compensatory and punitive damages. The inmate
alleged that state and county officials had engaged in
unlawful investigations and knowing destruction of
exculpatory evidence. Heck, 512 U.S. at 479. The Court in Heck analogized a § 1983 action of this type, which called into question the validity of an underlying conviction, to a cause ofaction for malicious prosecution, id. at 483 84, and went on to hold that, as with a malicious prosecution claim, a plaintiff in such an action must demonstrate a favorable termination of the criminal proceedings before seeking tort relief, id. at 486 87. “[T]o recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiffmust prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal cour1’s issuance ofa writ of habeas corpus." Id.
Item Number: 5.
56 MARTINV. CITY OF BOISE
Edwardr v. Balisok, 520 U.S. 641 (1997) extended Heck's holding to claims for declaratory relief. Id. at 648. The plaintiff in Edwardr alleged that he had been deprived of eamed good-time credits without due process oflaw, because the decisionmaker in disciplinary proceedings had concealed exculpatory evidence. Because the plaintiffs claim for
declaratory reliefwas “based on allegations ofdeceit and bias on the part of the decisionmaker that necessarily imply the invalidity ofthe punishment imposed,” Edwards held, it was “not cognizable under § 1983." Id. Edwardx went on to hold, however, thatarequested injunction requiring prison officials to date-stamp witness statements was not Heck-barred,
reasoning that a “prayer for such praxpective relief will not ‘nec sarily imply’ the invalidity ofa previous loss ofgoodtime credits, and so may properly be brought under § 1983.” Id. (emphasis added).
Most recently, Wilkinson v. Dotxan, 544 U.S. 74 (2005), stated that Heck bars § 1983 suits even when the reliefsought is prospective injunctive or declaratory relief, “if succ s in that action would necessarily demonstrate the invalidity of confinement or its duration.” Id. at 81 82 (emphasis
omitted). But Wilkinxan held that the plaintiffs in that case cauld seek a prospective injunction compelling the state to comply with constitutional requirements in parole
proceedings in the future. The Court observed that the
prisoners’ claims for future relief, “if successful, will not necessarily imply the invalidity ofcon?nement or shorten its duration." Id. at 82.
The Supreme Court did not, in these cases or any other, conclusively determine whetherHeck 's favorable~termination requirement applies to convicts who have no practical
opportunity to challenge their conviction or sentence via a Item Number: 5.
MARTINV. CITY OF BOISE 57
petition for habeas corpus. See Muhammad v. Close,
540 U.S. 749, 752 & n.2 (2004). But in Spencer, five Justices suggested that Heck may not apply in such circumstances.
Spencer, 523 U.S. at 3.
The petitioner in Spencer had ?led a federal habeas
petition seeking to invalidate an order revoking his parole.
While the habeas petition was pending, the petitioner’s term of imprisonment expired, and his habeas petition was
consequently dismissed as moot. Justice Souter wrote a
concurring opinion in which three other Justices joined, addressing the petitioner’s argument that if his habeas petition were mooted byhis release, any § 1983 action would be barred under Heck, yet he would no longer have ac s to a federal habeas forum to challenge the validity ofhis parole revocation. Id. at 18 19 (Souter, J., concurring). Justice Souter stated that in his view “Heck has no such effect,” and that “a fonner prisoner, no longer ‘in custody,’ may bring a § 1983 action establishing the unconstitutionality of a conviction or con?nement without being bound to satisfy a favorable~termination requirement that it would be
impossible as a matter of law for him to satisfy." Id. at 21.
Justice Stevens, d 'senting, stated that he would have held the habeas petition in Spencer not moot, but agreed that “[g]iven the Court's holding that petitioner does not have a remedy under the habeas statute, it is perfectly clear . . . that he may bring an action under 42 U.S.C. § 1983.” Id. at 25 n.S
(Stevens, J., dissenting).
Relying on the concurring and di 'enting opinions in
Spencer, we have held that the “unavailability ofa remedy in habeas corpus because of mootness” permitted a plaintiff released from custody to maintain a § 1983 action for
damages, “even though success in that action would imply the Item Number: 5.
58 MARTINV. CITY OF BOISE
invalidity of the di‘~' linary proceeding that caused
revocation of his good-time credits." Normette v. Small, 316 F.3d 872, 876 (9th Cir. 2002). But we have limited
Normette in recent years. Most notably, we held in Lyall v.
City qfL0.rAngeleS, 807 F.3d 1178 (9th Cir. 2015), that even where a plaintiff had no practical opportunity to pursue federal habeas relief while detained because of the short duration of his confinement, Heck bars a § 1983 action that would imply the invalidity of a prior conviction if the plaintiff could have sought invalidation of the underlying conviction via direct appeal or state post-conviction relief, but did not do so. Id. at 1192 & n.l2.
2. Retrospective Relief
Here, the majority of the plaintiffs’ claims for
retrospective relief are governed squarely by Lyall. It is undisputed that all the plaintiffs not only failed to challenge their convictions on direct appeal but expressly waived the right to do so as a condition of their guilty pleas. The plaintiffs have made no showing that any oftheir convictions were invalidated via state post-conviction relief. We
therefore hold that all but two of the plaintiffs’ claims for damages are foreclosed under Lyall.
Two ofthe plaintiffs, however, Robert Martin and Pamela Hawkes, also received citations under the ordinances that were dismissed before the state obtained a conviction.
Hawkes was cited for violating the Camping Ordinance on July 8, 2007; that violation was dismissed on August 28, 2007. Martin was cited for violating the Disorderly Conduct Ordinance on April 24, 2009; those charges were dismissed on September 9, 2009. The complaint alleges two injuries stemming from these dismissed citations: (1) the continued Item Number: 5.
MARTINV. CITY OF BOISE 59
inclusion ofthe citations on plaintiffs’ criminal records; and (2) the accumulation of a host of criminal fines and
incarceration costs. Plaintiffs seek orders compellingthe City to “expunge[] . . . the records of any homeless individuals unlawfully cited or arrested and charged under [the
Ordinances]” and “reimburse[] . . . any criminal fines paid . . . [or] costs ofincarceration billed.”
With respect to these two incidents, the district court erred in ?nding that the plaintiffs’ Eighth Amendment
challenge was barred by Heck. Where there is no “conviction or sentence" that may be undermined by a grant of relief to the plaintiffs, the Heck doctrine has no application. 512 U.S. at 486 87; SEE aim Wallace v. Kata, 54‘) U.S. 384, 393
(2007).
Relying on Irrgraham v. Wright, 430 U.S. 651, 664
(1977), the City argues that the Eighth Amendment, and the Cruel and Unusual Punishments Clause in particular, have no application where there has been no conviction. The City’s reliance on Ingraham is misplaced. As the Supreme Court observed in Ingraham, the Cruel and Unusual Punishments Clause not only limits the types of punishment that may be imposed and prohibits the imposition ofpunishment grossly disproportionate to the severity of the crime, but also “imposes substantive limits on what can be made criminal and punished as such." Id. at 667. “This [latter] protection governs the criminal law process as a whole, not only the imposition of punishment postconviction." Jones, 444 F.3d at 1128.
Ingraham concerned only whether “impositions outside
the criminal process” in that case, the paddling of
schoolchildren “constituted cruel and unusual
Item Number: 5.
60 MARTINV. CITY OF BOISE
punishment.” 430 U.S. at 667. Ingraham did not hold that a plaintiff challenging the state's power to criminalize a particular status or conduct in the first instance, as the plaintiffs in this case do, must first be convicted. If conviction were a prerequisite for such a challenge, “the state could in effect punish individuals in the preconviction stages of the criminal law enforcement process for being or doing things that under the [Cruel and Unusual Punishments
Clause] cannot be subject to the criminal proces..
’
,/ones,
444 F.3d at l 129. For those rare Eighth Amendment
challenges concerning the state’s very power to criminalize particular behavior or status, then, a plaintiff need
demonstrate only the initiation of the criminal process against him, not a conviction.
3. Prospective Relief
The district court also erred in concluding that the
plaintiffs’ requests for prospective injunctive relief were barred by Heck. The district court relied entirely on language in Wilkinson stating that “a state prisoner’s § 1983 action is barred (absent prior invalidation) . . . no matter the relief sought (damages or equitable relief) . . . if success in that action would necessarily demonstrate the invalidity of
confinement or its duration.” Wilkimon, 544 U.S. at 81 82.
The district court concluded from this language in Wilkinson that a person convicted under an allegedly unconstitutional statute may never challenge the validity or application ofthat statute after the initial criminal proceeding is complete, even when the reliefsought is prospective only and independent of the prior conviction. The logical extension of the district court’s interpretation is that an individual who does not successfully invalidate a first conviction under an
unconstitutional statute will have no opportunity to challenge Item Number: 5.
MARTINV. CITY OF BOISE 61
that statute prospectively so as to avoid arrest and conviction for violating that same statute in the future.
Neither Wilkinson nor any other case in the Heck line
supports such a result. Rather, Wolff,"Edwardr, and
Wilkinson compel the opposite conclusion.
Wolffheldthat although Preiser barred a § 1983 action
seeking restoration of good-time credits absent a successful challenge in federal habeas proceedings, Preixer did not “preclude a litigant with standing from obtaining by way of ancillary reliefan otherwise proper injunction enjoining the prospective enforcement of invalid . . regulations.” Wolf}; 418 U.S. at 555. Although Waiffwasdecided before Heck,
the Court subsequently made clear that Heck effected no change in the law in this regard, observing in Edwards that “[o]rdinarily, a prayer for. . . prospective [injunctive] relief will not ‘necessarily imply’ the invalidity ofa previous loss of good-time credits, and so may properly be brought under § 1983.” Edwardr, 520 U.S. at 648 (emphasis added).
Importantly, the Court held in Edwards that although the plaintiffcould not, consistently with Heck, seek a declaratory judgment stating that the procedures employed by state
officials that deprived him of good~time credits were
unconstitutional, he could seek an injunction barring such allegedly unconstitutional procedures in the future. Id.
Finally, the Court noted in Wilkinxan that the Heck line of cases “has focused on the need to ensure that state prisoners use only habeas corpus (or similar state) remedies when they seek to invalidate the duration Q/'their cor;/inement," Wilkmrori, 544 U.S. at 81 (emphasis added), alluding to an existing confinement, not one yet to come.
Item Number: 5.
62 MARTINV. CITY OF BOISE
The Heck doctrine, in other words, serves to ensure the ?nality and validity of previous convictions, not to insulate future prosecutions from challenge. In context, it is clearthat WiIkin.r0n’s holding that the Heck doctrine bars a § 1983 action “no matter the relief sought (damages or equitable relief) . . . if su s in that action would nece rily
demonstrate the invalidity of con?nement or its duration” applies to equitable relief concerning an existing
con?nement, not to suits seeking to preclude an
unconstitutional con?nement in the future, arising from incidents occurring after any prior conviction and stemming fromapo. iblelaterprosecution and conviction. Id. at8l 82 (empha added). As Wilkinson held, “claims for future
relief (which, if successful, will not necessarily imply the invalidity ofcon?nement or shorten its duration)” are distant from the “core” ofhabeas corpus with which the Heck line of cases is concerned, and are not precluded by the Heck
doctrine. Id. at 82.
In sum, we hold that the majority ofthe plaintiffs’ claims for retrospective relief are barred by Heck, but both Martin and I-Iawkes stated claims for damages to which Heck has no application. We further hold that Heck has no application to the plaintiffs’ requests for prospective injunctive relief.
C. The Eighth Amendment
At last, we turn to the merits does the Cruel and
Unusual Punishments Clause of the Eighth Amendment
preclude the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to
alternative shelter? We hold that it does, for essentially the same reasons articulated in the now-vacated ,/anex opinion.
Item Number: 5.
MARTINV. CITY OF BOISE 63
The Eighth Amendment states: “Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const., amend. VIII.
The Cruel and Unusual Punishments Clause “circumscribes the criminal process in three ways.” Ingraham, 430 U.S. at 667. First, it limits the type of punishment the government may impose; second, it proscribes punishment “grossly
disproportionate" to the severity of the crime; and third, it places substantive limits on what the government may
criminalize. Id. It is the third limitation that is pertinent here. “Even one day in prison would be a cruel and unusual
punishment for the ‘crime’ of having a common cold ”
Robinson v. California, 370 U.S. 660, 667 (1962). Cases construing substantive limits as to what the government may criminalize are rare, however, and for good reason the
Cruel and Unusual Punishments Clause’s third limitation is “one to be applied sparingly.” Ingraham, 430 U.S. at 667.
Robinson, the seminal case in this branch of Eighth
Amendment jurisprudence, held a California statute that “ma[de] the ‘status’ ofnarcotic addiction a criminal offense" invalid under the Cruel and Unusual Punishments Clause. 370 U.S. at 666. The California law at issue in Robinson was “not one which punishe[d] a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration”; it punished addiction itself. Id. Recognizing narcotics
addiction as an illness or disease “apparently an illn .'s which may be contracted innocently or involuntarily" and observing that a “law which made a criminal offense of. . . a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment," Robinson held Item Number: 5.
64 MARTINV. CITY OF BOISE
the challenged statute a violation ofthe Eighth Amendment.
Id. at 666 67.
AsJones observed, Robinson did not explain at length the principles underpinning its holding. See Jones, 444 F.3d at 1133. In Powell v. Texas, 392 U.S. 514 (1968), however, the Court elaborated on the principle first articulated inRobinson.
Powell concerned the constitutionality of a Texas law
making public drunkenness a criminal offense. Justice
Marshall, writing for a plurality of the Court, distinguished the Texas statute from the law at issue in Robinson on the ground that the Texas statute made criminal not alcoholism but conduct appearing in public while intoxicated.
“[A]ppellant was convicted, not for being a chronic alcoholic, but for being in public while drunk on a particular occasion.
The State of Texas thus has not sought to punish a mere status, as California did in Robinson; nor has it attempted to regulate appellant’s behavior in the privacy of his own home.” Id. at 532 (plurality opinion).
The Powell plurality opinion went on to interpret
Robinson as precluding only the criminalization of“status,” not of “involuntary" conduct. “The entire thrust of
Robinson’s interpretation of the Cruel and Unusual
Punishment Clause is that criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing, or perhaps in historical common law terms, has committed some actus reus. It thus does not deal with the question ofwhether certain conduct cannot constitutionally be punished because it is, in some sense, ‘involuntary’ . . . .” Id. at 533.
Item Number: 5.
MARTINV. CITY OF BOISE 65
Four Justices dissented from the Cour1’s holding in
Powell; Justice White concurred in the result alone. Notably, Justice White noted that many chronic alcoholics are also homeless, and that for those individuals, public drunkenness may be unavoidable as a practical matter. “For all practical purposes the public streets may be home for these
unfortunates, not because their disease compels them to be there, but because, drunk or sober, they have no place else to go and no place else to be when they are drinking. . . . For some of these alcoholics I would think a showing could be made that resisting drunkenness is impossible and that
avoiding public places when intoxicated is also impossible.
As applied to them t ‘tatute is in effect a law which bans a single act for which they may not be convicted under the Eighth Amendment the act of getting drunk." Id. at 551
(White, J., concurring in thejudgment).
The four dissenting Justices adopted a position consistent with that taken by Justice White: that under Robinson,
“criminal penalties may not be in?icted upon a person for being in a condition he is powerless to change," and that the defendant, “once intoxicated, . . . could not prevent himself from appearing in public plac s.” Id. at 567 (Fortas, J., dissenting). Thus, five Justices gleaned from Robinson the principle that “that the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being." Jones, 444 F.3d at 1135; SEE also United States v. Raberston,
875 F.3d 1281, 1291 (9th Cir. 2017).
This principle compels the conclusion that the Eighth
Amendment prohibits the imposition ofcriminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter. As Jones Item Number: 5.
66 MARTINV. CITY OF BOISE
reasoned, “[w]hether sitting, lying, and sleeping are de?ned as acts or conditions, they are universal and unavoidable consequences of being human.” Jones, 444 F.3d at 1136.
Moreover, any “conduct at issue here is involuntary and inseparable from status they are one and the same, given that human beings are biologically compelled to rest, whether by sitting, lying, or sleeping.” Id. As a result,just as the state may not criminalize the state of being “homeless in public places,” the state may not “criminalize conduct that is an unavoidable consequence of being homeless namely
sitting, lying, or sleeping on the streets." Id. at 1137.
Our holding is a narrow one. Like the Jones panel, “we
in no way dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets . . . at any time and at any place.” Id. at 1138. We hold only that “so long as there is a greater number of homeless individuals in [ajurisdiction] than the number of available bed [in shelters],” the jurisdiction cannot prosecute homeles. individuals for “involuntarily sitting, lying, and sleeping in public.” Id. That is, as long as there is no option ofsleeping 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.“
" Naturally, our holding docs not covcr individuals who do have acecss to adequate temporary shcltcr, whcthcr bccausc thcy have the mcans to pay for it or bccaiisc it is rcalistically available to thcm for free, but who choose not to usc it. Nor do wc suggest that a jurisdiction with insullieient shclter can never criminalize the act ofsleeping outsidc. Evcn whc shelter is unavailable, an ordinance prohibiting sitting, lying, or slccping outside at particular timcs or in particular locations might wcll bc constitutionally pcrmissiblc. SecJrmes, 444 F.3d at 1123. So, too, might an ordinance barring thc obstruction ofpublic rights ofway or thc erection Item Number: 5.
MARTINV. CITY OF BOISE 67
We are not alone in reaching this conclusion. As one
court has observed, “resisting the need to eat, sleep or engage in other life~sustaining activities is impossible. Avoiding public places when engaging in this otherwise innocent
conduct is also impossible. . . . As long as the homeless plaintiffs do not have a single place where they can lawfully be, the challenged ordinances, as applied to them, effectively punish them for something for which they may not be
convicted under the [E]ighth [A]mendment sleeping,
eating and other innocent conduct." Pattinger v. City of Miami, 810 F. Supp. 1551, 1565 (S.D. Fla. 1992); see also Johnson v. City o/"Dallas, 860 F. Supp. 344, 350 (N.D. Tex. 1994) (holding that a “sleeping in public ordinance as applied against the homeless is unconstitutional”), rev 'd an other groundx, 61 F.3d 442 (5th Cir. 1995).”
Here, the two ordinances criminalize the simple act of
sleeping outside on public property, whether hare or with a ofccnziin structures. Whcthcr some other ordinance is consistent with thc Eighth Amendment will depend, (Ls hcrc, on whether it punishcs in person [or lacking thc means to livc out the “universal and unavoidztblc conscqucnecs olibcing humztn” in the wzty the ordinance prescribes. Id. at l 136.
" In Joel V. City 0/'0rIdridr), 232 F.3d 1353, 1362 (1 1th Cir. 2000), thc Eleventh Circuit uphcld ztn ztnti—eztmpingordinztnce similar to Boise’s against ztn Eighth Amendment ehztllengc. In Joel, however, the defendants prescntcd unrcfutcd evidence that thc homclcss shcltcis in thc City of Orlzindo had ncvcr rcztchcd cztpzieity and that thc plaintills hzid ztlways cnjoycd zicecss to shelter spztcc. Id. Those unrefuted Iaets wcrc critical to thc court’s holding. Id. As discussed below, the plziintilfs here have demonstrated a genuine i uc ofmzttcriztl [act concerning whether thcy havc been dcnicd acecss to shelter in the past or expect to be so denied in thc liiturc. Joel therefore does not provide pcrsuasivc guidance for this case.
Item Number: 5.
68 MARTINV. CITY OF BOISE
blanket or other basic bedding. The Disorderly Conduct
Ordinance, on its face, criminalizes “[o]ccupying, lodging, or sleeping in any building, structure or place, whether public or private" without permi.. n. Boise City Code § 6-01-05. Its scope is just as sweeping as the Los Angeles ordinance at issue in Jones, which mandated that “[n]o person shall sit, lie or sleep in or upon any street, sidewalk or other public way.” 444 F.3d at 1123.
The Camping Ordinance criminalizes using “any of the
streets, sidewalks, parks or public places s a camping place at any time." Boise City Code § 9-10-02. The ordinance
de?nes “camping” broadly:
The term “camp" or “camping” shall mean the
use of public property as a temporary or
permanent place of dwelling, lodging, or
residence, or as a living accommodation at
anytime between sunset and sunrise, or as a
sojourn. Indicia of camping may include, but
are not limited to, storage of personal
belongings, using tents or other temporary
structures for sleeping or storage of personal
belongings, arrying on cooking activities or
making any fire in an unauthorized area, or
any of these activities in combination with
one another or in combination with either
sleeping or making preparations to sleep
(including the laying down of bedding for the
purpose ofsleeping).
Id. It appears from the record that the Camping Ordinance is frequently enforced against homeless individuals with some elementary bedding, whether or not any of the other listed Item Number: 5.
MARTINV. CITY OF BOISE 69
indicia of“camping” the erection oftemporary structures, the activity of cooking or making ?re, or the storage of personal property are present. For example, a Boise police officer testified that he cited plaintiff Pamela Hawkes under the Camping Ordinance for sleeping outside “wrapped in a blanket with her sandals offand next to her,” for sleeping in a public restroom “with blankets,” and for sleeping in a park “on a blanket, wrapped in blankets on the ground." The
Camping Ordinance therefore can be, and allegedly is,
enforced against homeless individuals who take even the most rudimentary precautions to protect themselves from the elements. We conclude that a municipality cannot
criminalize such behavior consistently with the Eighth
Amendment when no sleeping space is practically available in any shelter.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of
the district court as to the plaintiffs’ requests for retrospective relief, except as such claims relate to l-lawkes's July 2007 citation under the Camping Ordinance and Martin‘s April 2009 citation under the Disorderly Conduct Ordinance. We REVERSE and REMAND with respect to the plaintiffs’
requests for prospective relief, both declaratory and
injunctive, and to the plaintiffs’ claims for retrospective relief insofar as they relate to Hawkes' July 2007 citation or Martin's April 2009 citation.”
"’ Costs shall be awarded to the plainli?ls.
Item Number: 5.
70 MARTINV. CITY OF BOISE
OWENS, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority that the doctrine of Heck v.
Humphrey, 512 U.S. 477 (1994), bars the plaintiffs’
42 U.S.C. § 1983 claims for damages that are based on
convictions that have not been challenged on direct appeal or invalidated in state post~conviction relief. See Lyall v. City of La: Angeles, 807 F.3d 1178, 1192 n.l2 (9th Cir. 2015).
I also agree that Heck and its progeny have no application where there is no “conviction or sentence" that would be undermined by granting a plaintiffs request for relief under § 1983. Heck, 512 U.S. at 486 87; see also Wallace v. Kata, 549 U.S. 384, 393 (2007). I therefore concur in the
majority's conclusion that Heckdoes not bar plaintiffs Robert Martin and Pamela Hawkes from seeking retrospective relief for the two instances in which they received citations, but not convictions. I also concur in the majority’s Eighth
Amendment analyst. s to those two claims for retrospective relief.
Where I part ways with the majority is in my
understanding ofHeck’s application to the plaintiffs’ claims for declaratory and injunctive relief. In Wilkinxan v. Dotson, 544 U.S. 74 (2005), the Supreme Court explained where the Heck doctrine stands today:
[A] state prisoner’s § 1983 action is barred
(absent prior invalidation) no matter the
relief sought (damages or equitable relief), no
matter the target of the prisoner’s suit (state
conduct leading to conviction or internal
prison proceedings) ifsuccessin that action
Item Number: 5.
MARTINV. CITY OF BOISE 71
would necessarily demonstrate the invalidity
ofconfinement or its duration.
Id. at 81 82. Here, the majority acknowledges this language in Wilkinson, but concludes that Heck’s bar on any type of relief that “would necessarily demonstrate the invalidity of confinement" does not preclude the prospective claims at issue. The majority reasons that the purpose of Heck is “to ensure the ?nality and validity ofprevious convictions, not to insulate future prosecutions from challenge,” and so
concludes that the plaintiffs’ prospective claims may proceed.
I respectfully disagree.
A declaration that the city ordinances are unconstitutional and an injunction against their future enforcement necessarily demonstrate the invalidity ofthe plaintiffs’ prior convictions.
Indeed, any time an individual challenges the
constitutionality ofa substantive criminal statute under which he has been convicted, he asks for a judgment that would nece. .arily demonstrate the invalidity ofhis conviction. And though neither the Supreme Court nor this court has squarely addressed Heck’s application to § 1983 claims challenging the constitutionality of a substantive criminal statute, I believe Edwards v. Balimk, 520 U.S. 641 (1997), makes clear that Heck prohibits such challenges. In Edwardr, the
Supreme Court explained that although our court had
recognized that Heck barred § 1983 claims challenging the validity ofa prisoner’s con?nement “as a substantive matter,” it improperly di. nguished as not Heck-barred all claims alleging only procedural violations. 520 U.S. at 645. In holding that Heck also barred those procedural claims that would necessarily imply the invalidity of a conviction, the Court did not question our conclusion that claims challenging a conviction “as a substantive matter” are barred by Heck.
Item Number: 5.
72 MARTINV. CITY OF BOISE
Id.; .ree also Wilkin.ron, 544 U.S. at 82 (holding that the plaintiffs’ claims could proceed because the reliefrequested would only “render invalid the state procedurex” and “a favorable judgment [would] not ‘nece ily imply the
invalidity of [their] conviction[s] or sentence[s]’” (emphasis added) (quoting Heck, 512 U.S. at 487)).
Edwardr thus leads me to concludethat an individual who was convicted under a criminal statute, but who did not challenge the constitutionality ofthe statute at the time of his conviction through direct appeal or post-conviction relief, cannot do so in the first instance by seeking declaratory or injunctive relief under § 1983. See/lbumid v. Hillsborough Cty. Bd. q/"Cry. Comm ‘xv,405 F.3d 1298, 1316 n.‘) (1 1th Cir. 2005) (assuming that a §l983 claim challenging “the
constitutionality ofthe ordinance under which [the petitioner was convicted]” would be Heck-barred). I therefore would hold that Heck bars the plaintiffs’ claims for declaratory and injunctive relief.
We are not the first court to struggle applying Heck to “real life examples," nor will we be the last. See, e.g., Spencer v. Kemna, 523 U.S. 1, 21 (1998) (Ginsburg, J.,
concurring) (alterations and internal quotation marks omitted) (explaining that her thoughts on Heck had changed since she joined the majority opinion in that case). If the slate were blank, I would agree that the majority's holding as to
prospective relief makes good sense. But because I read Heck and its progeny differently, I di ent as to that section of the majority’s opinion. I otherwise join the majority in full.
Item Number: 5.
County of Riverside
2019 Point-In-Time Count
April 2019
Department of Public Social Services
Version 1.6
For the latest version of this report, go to the Riverside County DPSS website at:
http://dpss.co.riverside.ca.us/homeless-programs/homeless-count-and-summary Item Number: 5.
2019 Riverside County Homeless Point in Time Count
Overview and Summary
The Homeless Point in Time Count (“PIT Count”) is federally-mandated by the U.S. Department of Housing and Urban Development (HUD) to count and survey the sheltered and unsheltered homeless population in cities and counties throughout the nation, including Riverside County. HUD defines sheltered homeless persons as adults, children, and unaccompanied children who, on the night of the count, are living in shelters for the homeless; unsheltered homeless are defined as those who reside in places not meant for human habitation, such as cars, parks, sidewalks, abandoned buildings, or on the street. The sheltered count consists of data extracted from the countywide Homeless Management Information System (HMIS), and the unsheltered count consists of a street-based count, service-based count, and a homeless outreach count in unincorporated areas. The PIT Count provides a snapshot of the County’s visible homeless and is not intended to represent a complete accounting of the homeless population.
The Department of Public Social Services (DPSS), in partnership with the County of Riverside Continuum of Care (a network of private- and public-sector homeless service providers) and cities, coordinated the PIT Count held on the morning of January 29, 2019. Multiple county departments participated, including the Department of Behavioral Health, Code Enforcement, Housing Authority, Probation and the Sheriff’s Office, by taking lead in escorting volunteers, counting at unincorporated areas, covering hard to reach encampments, and providing immediate service linkage. Additionally, this year DPSS partnered with the University of California Riverside (UCR) Computer and Engineering Department, to analyze and produce the 2019 PIT Count Data report. DPSS and UCR will continue to further analyze this year’s data to better understand trends in the homeless count and provide additional easy-to-use data sets for cities.
The 2019 PIT Count identified a total of 2,811 sheltered and unsheltered homeless adults and children county wide (2,045 unsheltered and 766 sheltered), which is 21% higher than the count in 2018 (2,310). The significant increase in the 2019 PIT Count can be attributed to: an enhanced count methodology that covered a wider area within the allotted count time, increased efficiency through use of a mobile web-based technology instead of paper surveys, implementation of revised survey questions to follow HUD guidelines (e.g., chronic homeless, domestic violence), planned targeting of encampment sites, an increased number of volunteers (more than 700), and increased participation from city leadership. Despite these efforts to improve the accuracy of the count, the actual number of homeless individuals is estimated to be higher than PIT Count results due to ongoing challenges of locating homeless individuals.
DPSS submitted the the Riverside County’s final PIT Count Report to HUD by the deadline of April 30, 2019. The PIT Count is a requirement to receive federal funding for HUD homeless assistance programs; the data is also used by the state to establish funding formulas, and facilitates development of targeted strategies to help homeless individuals and families. In 2018, the Riverside County Continuum of Care received a total of $10.1 million from HUD and $11 million from the State of California for homeless programs and services.
Item Number: 5.
The following summary provides highlights of the 2019 PIT Count:
Overall Count Countywide
• 2,811 total sheltered and unsheltered PIT count for 2019 (21% increase from 2018) • 2,045 total unsheltered PIT count for 2019 (21% increase from 2018) • 766 total sheltered PIT count for 2019 (21% increase from 2018) Unsheltered Count by Sub-Populations Countywide:
• Veterans – 107 total unsheltered PIT count for 2019 (8% increase from 2018) • Youth (18-24) – 181total unsheltered PIT count for 2019 (2% increase from 2018) • Children (17 or under) – Children went from 4 to 15 in the unsheltered PIT count for 2019. • Youth count total – 196 total unsheltered PIT count for 2019 (8% increase from 2018) • Chronically Homeless - 727 total unsheltered PIT count for 2019 (88% increase from 2018) • Families w/Children (interview only) – 2 total unsheltered PIT count for 2019 (50% decrease from 2018)
• Elderly (aged 62 and over – interview only) – 129 total unsheltered PIT count for 2019 (16% increase from 2018)
For additional information or to send comments about this report, please email: [email protected] Item Number: 5.
2019 Riverside County Point-In-Time Homeless Count
General Sheltered & Unsheltered Information
Female
Male 32%
64%
Gender
Under Bridge
Encampment
Vehicle
Street 43% live on
street
Living Situations
Interview Only
Unsheltered Only Demographic
24%
have substance
abuse
18%
experience
PTSD
18%
have physical
disability
18%
mental health
issues
Asian American
Indian
Black White Multiple
Races
Native
Hawaiian
Unknown
Race
0K
1K
2K 1,626
226
440 381
30 78 30
Race & Ethnicity
99% w/o children
1% w children
Household Type
Unsheltered Sheltered Total Count
Individuals
Adults (≥25)
Youth (18-24)
Children (≤17)
Unknown Ages
Households
Chronically Homeless
Families with Children
Substance Abuse (Drug or Alcohol)
Mental Health Conditions
Veterans 163
515
557
82 804
2,401
131
214
264
2,202
2,811
56 148
59 77
558
0 199
83 484
766
107
367
498
5 727
1,843
131
15 181
1,718
2,045
2015 2016 2017 2018 2019
500
1000
1500
2000
2500
3000 766
1,638 1,685
880 768
1,587
2,045
631
1,351
814
597 745
503 498 486
Volunteers
Homeless Population Trend
2,045
Total Unsheltered Count
Sheltered Unsheltered
Male
Female
Transgender
Gender Non Conforming
Unknown 95
9 13
892
1,802
Interview
Observational 698
1,347
Count Percent
Street
Encampment
Vehicle
Other
Park
Abdn Bldg
Under Bridge
Bus 0%
3%
4%
4%
6%
17%
23%
43%
5 42
52 54
80 224
308
582
Non Hispanic
56%
Hispanic
31%
Unknown
13%
version 7.2
Overall, 21% increase in
homeless count from 2018.
77
Item Number: 5.
2018 2019
Individuals
Adults (≥25)
Youth (18-24)
Children (≤17)
Unknown Age
Male
Female
Transgender
Gender Non-Con
Unknown Gender
Hispanic
Non-Hispanic
Unknown Hispanic
White
Native Hawaiian
Black
Asian
American Indian
Multiple Races
Unknown Race
Households
Chronically Homeless
558
0 27
12 4
199
9 515
0 445
321
0 2
2 344
418
0 199
83 484
766
87 471
0 24
22 10
133
10 432
0 378
253
0 1
4 272
354
0 147
69 415
631
Sheltered Statistics
2018 2019
Individuals
Adults (≥25)
Youth (18-24)
Children (≤17)
Unknown Age
Male
Female
Transgender
Gender Non-Con
Unknown Gender
Hispanic
Non-Hispanic
Unknown Hispanic
White
Native Hawaiian
Black
Asian
American Indian
Multiple Races
Unknown Race
Households
Chronically Homeless 727
1,843
381
199
66 26
241
21 1,111
361
1,133
551
95 7
11 548
1,384
131
15 181
1,718
2,045
387
1,335
335
52 103
19 216
26 934
184
1,009
492
52 8
6 488
1,131
154
4 177
1,350
1,685
Sheltered vs Unsheltered Unsheltered Statistics
2019 Riverside County PIT Count
Black White Multiple
Races
0 500
1,000
1,500
2,000
1,111
199
515
241 199
Children
(≤17)
Youth
(18-24)
Adults
(≥25)
0 500
1,000
1,500
2,000
1,718
199
484
181
2015 2016 2017 2018 2019
0 500
1000
1500
2000
2500
3000 766
1,638 1,685
768 880
1,587
2,045
631
1,351
814
597
745
503 498 486
Volunteers
Homeless Population Trend
Sheltered Unsheltered
Total Households
Interviewed
Adults Only
Adults and Children
Children Only 2
2 1,263
1,267
Unsheltered Household
Composition
Interview Only
Age Race
Adults Only 82%
Adults and
Children
15%
Children Only 3%
Sheltered Household
Composition
77
Item Number: 5.
Unsheltered - Supervisory District 1
2019 Riverside County PIT Count
City 2018 2019
Canyon Lake
Lake Elsinore
Riverside*
Wildomar
Unincorporated 45
13 238
66 0
16 15
184
75 0
PIT Count By City
2015 2016 2017 2018 2019
0 100
200
300
400
500
291
288 295
218
362
PIT Count Trend
Asian
American Indian
Black
White
Multiple
Native Hawaiian
Unknown
0 100
200
300
400
186
32 49
79 6 7 3
Race
Not
Chronic
243
Chronic
119
Chronically Homeless
2018 2019
Total Count
Interviewed
Observed
Adults (≥25)
Youth (18-24)
Children (≤17)
Unknown Age
Male
Female
Transgender
Gender Non Conforming
DoesntKnow/NotSure
Veterans 16
28 1
6 88
239
37 6
46 273
141
221
362
18 12
1 1
86 192
22 0
39 231
83 207
290
Subpopulation Statistics
Total Households
Interviewed
Adults Only
Adults and Children
Children Only 1
1 206
208
Household Composition
Interview Only
Not Hispanic
or Latino
193
Hispanic or
Latino
76 Unknown
93 Ethnicity
Volunteers By
Deployment Site
CFLC- Planet
Youth
City of Riverside
Access Center
La Sierra
University Church
Oak Creek Center
Operation
SafeHouse
RSO Lake Elsinore
Station 43
61 3
40 33
17
Item Number: 5.
Unsheltered - Supervisory District 2
2019 Riverside County PIT Count
City 2018 2019
Corona
Eastvale
Jurupa Valley
Norco
Riverside*
Unincorporated 44
201
11 139
0 164
4 182
4 148
0 72
PIT Count By City
2015 2016 2017 2018 2019
0 200
400
600
559 442
409
393
362
PIT Count Trend
Asian
American Indian
Black
White
Multiple
Native Hawaiian
Unknown
0 100
200
300
400
270
145
77 13
47 4 3
Race
Not
Chronic
379
Chronic
180
Chronically Homeless
2018 2019
Total Count
Interviewed
Observed
Adults (≥25)
Youth (18-24)
Children (≤17)
Unknown Age
Male
Female
Transgender
Gender Non Conforming
DoesntKnow/NotSure
Veterans 21
40 3
1 155
360
57 8
49 445
219
340
559
21 23
0 2
131
252
31 1
61 315
134
276
410
Subpopulation Statistics
Total Households
Interviewed
Adults Only
Adults and Children
Children Only 0
1 325
326
Household Composition
Interview Only
Unknown
131
Not Hispanic
or Latino
281
Hispanic or
Latino
147
Ethnicity
Corona Historic
Civic Center
Eastvale City Hall
–Chambers
Norco City Hall
RSO Jurupa Valley
Station 59
21 15
14 Volunteers By
Deployment Site
Corona City Hall 31
Item Number: 5.
Unsheltered - Supervisory District 3
2019 Riverside County PIT Count
City 2018 2019
Hemet
Murrieta
San Jacinto
Temecula
Unincorporated 65
59 48
17 112
37 66
9 19
83 PIT Count By City
2015 2016 2017 2018 2019
0 100
200
300
400
301
214
256
189
178
PIT Count Trend
Asian
American Indian
Black
White
Multiple
Native Hawaiian
Unknown
0 100
200
300
400
192
22 37 31
4 9 6
Race
Not
Chronic
176
Chronic
125
Chronically Homeless
2018 2019
Total Count
Interviewed
Observed
Adults (≥25)
Youth (18-24)
Children (≤17)
Unknown Age
Male
Female
Transgender
Gender Non Conforming
DoesntKnow/NotSure
Veterans 25
2 1
1 88
209
4 0
25 272
82 219
301
16 8
2 3
68 133
14 1
32 167
62 152
214
Subpopulation Statistics
Total Households
Interviewed
Adults Only
Adults and Children
Children Only 0
0 192
192
Household Composition
Interview Only
Not Hispanic
or Latino
208
Unknown 31 Hispanic or
Latino
62 Ethnicity
California Life
Center for Kids
City of Temecula
HELP Center
RSO Hemet
Station Area
Salvation Army
Temecula HELP
Center 28
45 19
8 4
Volunteers By
Deployment Site
Unsheltered - Supervisory District 4
2019 Riverside County PIT Count
City 2018 2019
Blythe
Cathedral City
Coachella
Desert Hot Springs
Indian Wells
Indio
La Quinta
Mecca
Palm Desert
Palm Springs
Rancho Mirage
Unincorporated 98
6 196
23 0
9 52
2 45
51 82
48 30
8 126
43 0
4 50
0 58
75 46
54 PIT Count By City
2015 2016 2017 2018 2019
0 200
400
600
612
494
528
434
399
PIT Count Trend
Asian
American Indian
Black
White
Multiple
Native Hawaiian
Unknown
0 100
200
300
400 349
32 46
98 76
8 3
Race
Not
Chronic
391
Chronic
221
Chronically Homeless
2018 2019
Total Count
Interviewed
Observed
Adults (≥25)
Youth (18-24)
Children (≤17)
Unknown Age
Male
Female
Transgender
Gender Non Conforming
DoesntKnow/NotSure
Veterans 34
20 2
3 154
433
32 1
36 543
201
411
612
25 10
2 1
127
353
34 1
19 439
108
386
494
Subpopulation Statistics
Total Households
Interviewed
Adults Only
Adults and Children
Children Only 1
0 390
391
Household Composition
Interview Only
Unknown 88
Not Hispanic
or Latino 331
Hispanic or
Latino 193
Ethnicity
Blythe City Hall
Coachella City Hall
DHS PD
La Quinta City Hall
Martha’s Village & Kitchen
Palm Desert –City Hall
Palm Springs City Hall – Cou..
Rancho Mirage City Hall
RSO Palm Desert Station
RSO Thermal Station
SafeHouse of the Desert 26
15 7
3 77
4 15
0 11
18 11
Volunteers By
Deployment Site
Cathedral City
Police Dept. 13
Item Number: 5.
Unsheltered - Supervisory District 5
2019 Riverside County PIT Count
City 2018 2019
Banning
Beaumont
Calimesa
Menifee
Moreno Valley
Perris
Unincorporated 9
77 38
17 16
15 39
15 95
77 22
9 13
37 PIT Count By City
2015 2016 2017 2018 2019
0 100
200
300
268
211
194
185
173
PIT Count Trend
Asian
American Indian
Black
White
Multiple
Native Hawaiian
Unknown
0 100
200
300
400
114
22 32 28
4 5 6
Race
Not
Chronic
129
Chronic
82 Chronically Homeless
2018 2019
Total Count
Interviewed
Observed
Adults (≥25)
Youth (18-24)
Children (≤17)
Unknown Age
Male
Female
Transgender
Gender Non Conforming
DoesntKnow/NotSure
Veterans 11
5 0
0 63
143
1 0
25 185
52 159
211
19 2
0 0
72 194
8 0
23 237
59 209
268
Subpopulation Statistics
Total Households
Interviewed
Adults Only
Adults and Children
Children Only 0
0 150
150
Household Composition
Interview Only
Hispanic or
Latino
73 Not Hispanic
or Latino
120
Unknown
18 Ethnicity
Banning Senior
Center
Beaumont Police
Department
Calimesa City Hall
Cottonwood Golf
Center
Kay Ceniceros
Senior
RSO Perris
Station 26
17 46
6 4
13 Volunteers By
Deployment Site
Unsheltered Subpopulation Trends 2015-2019 [1]
2019 Riverside County PIT Count
2015 2016 2017 2018 2019
0 100
200
300
102 100 99 91
107
Veterans
Interview Only
2015 2016 2017 2018 2019
0 50
100
150
200
88 82
45 177
116
178
107
40 76
132
181
93 71
58 24
Youth (18-24)
2015 2016 2017 2018 2019
0 200
400
600
401
387
727
341
299
* Question changed
Chronically Homeless
Interview Only
2015 2016 2017 2018 2019
0 50
100
150
97 111
95 129
85 Elderly (≥62)
Interview Only
2015 2016 2017 2018 2019
Year
0 5
10 15 14
8 4
3 2
Families with Children
Interview Only
Total
Observed
Interviewed
Unsheltered Subpopulation Trends 2015-2019 [2]
2019 Riverside County PIT Count
2015 2016 2017 2018 2019
0 100
200
300
243
265
97 97
282
* Question changed
Victims of Domestic Violence
2015 2016 2017 2018 2019
0 100
200
300
239
225 223
272
202
Incarceration
within last 12 months
2015 2016 2017 2018 2019
0 200
400
600
273
291
273
474 486 461
348 341
498
* Substance abuse counted as
alchohol and/or drug abuse in 2019
Substance Abuse
Alcohol Abuse Drug Abuse Either Or
Unsheltered Subpopulation Trends 2015-2019 [3]
2019 Riverside County PIT Count
2015 2016 2017 2018 2019
0 100
200
300
400
500
268
300
368
200
179
PTSD
2015 2016 2017 2018 2019
0 100
200
300
400
500
204
212 201
261
159
Brain Injury
2015 2016 2017 2018 2019
0 10
20 30
40 27
20 21 22
11 HIV/AIDS
2015 2016 2017 2018 2019
0 100
200
300
400
500
322
367
321
309
275
Mental Health
2019 Riverside County City-level PIT Counts Version 1.5
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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2019 Riverside County City-level PIT Counts
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RiversideCounty
ContinuumofCare
2 0 2 3
More than a Count
HOMELESS
POINT-IN-TIME
COUNT
Summary
The federally mandated count of people
experiencing sheltered and unsheltered
homelessness on a single night was
conducted January 25, 2023. The data
collected is used to demonstrate the need
for services, resource planning, and to
inform the community about
homelessness.
Item Number: 5.
58 1,284
Sheltered Total
Subpopulation
101
Veterans Transition Age Youth
Seniors
(62+)
132
Households with Children
75 18% Increase No Change 26% Decrease 11% Increase
% change from previous year
By Supervisory
District 1
District 2
District 3
District 4
District 5
396
112
206
406
164
District
Sheltered Annual Totals
and % change from previous year
2020
729
5% decrease
2021
998
37% increase
2022
1,336
34% increase
766
2019
21% increase
By Supervisory
District 1
District 2
District 3
District 4
District 5
742
260
131
755
553
District
156
**Veterans Transition Age Youth
Seniors
(62+)
11 Households with Children
198 154
36% Increase 35% Decrease 47% Increase 22% Increase
Subpopulation
% change from previous year
2,441
Unsheltered Total
1,685 2,045 2,155
2019 2020 2022
1,980
2018
*2021 Unsheltered PIT Count was not conducted as a result of COVID exemption 21% increase 5% increase 8% decrease
Unsheltered Annual Totals
and % change from previous year
3% increase
2023 POINT-IN-TIME COUNT
3,725
12% Increase from 3,316 (2022 PIT Count)
total
Unsheltered 2,441
Sheltered 1,284
** number reported is extrapolated, total unsheltered interviewed veterans is 100 (30% increase from 2022) 23% Increase from 1,980 (2022 PIT Count)
4% decrease from 1,336 (2022 PIT Count)
Item Number: 5.
Unsheltered
Persons
Experiencing First
Time Homelessnes
21%
257
Seniors 62+
6% Increase
Households
with Children
143
229Transition
Age Youth (18-24)
27% Decrease
256
Veterans
31% Increase
SUB-POPULATION TOTALS
Family Disruption
Lack of Income
Unemployment
27%
19%
12%
1. 2.
3. MORETHAN A COUNT INITIATIVE
32% of surveyed
individuals requested
post-count services
784 individuals referred to
services
Top 3 requested services
Housing Services
Calfresh & Cashaid
Food Pantries
1. 2.
3. Top 3 Primary Factors
Contributing to Unsheltered Homelessness Reported
12% Increase
Unsheltered Interviewed Only
Item Number: 5.
District and City Breakdown
*Data displayed is based on newly adopted district boundaries Item Number: 5.
CESH
$1.4M 4 Projects
$14.2M 20 Projects
HUD CoC
$1.7M 4 Projects
ESG & ESG CV
HHIP
HHAP
$35M 31 Projects
CONTINUUM OF CARE
TOTAL $62M
$9.7M 30 Projects
HUD-VASH
$6.8M 798 Vouchers
$1.8M 203 Vouchers
MAINSTREAM
$77.6M 9,068 Projects
Housing Choice Voucher
Family Unification Program
HOUS $1.5M 180 Vouchers ING AUTHORITY
TOTAL $87.7M
Homekey
$20M 183 Housing Units
$8.7M 25 Projects
CDBG, ESG & ESG-CV
$55.1M 8,111 Households
United Lift
County Funding
$236.9M 1,808 Housing Units
HOUSING & COMMUNITY
DEVELOPMENT
TOTAL $320.7
I M P A C T R E P O R T
FY 2022/2023
HOMELESSFUNDING&PROGRAMSFORRIVERSIDECOUNTY
Item Number: 5.
SR-23-215
City of Desert Hot Springs
City Council
AGENDA ITEM REPORT
To: City Council
Date: September 19, 2023
Department: Public Works
Prepared by: Jilleen Ferris, City Engineer
Subject: Approval of Tract Map No. 38200 for Rancho Descanso, Acceptance of Dedications for Street and Utility Purposes, Acceptance of Subdivision Improvement Agreement and Related Security
RECOMMENDATION:
1) Find that Tract Map No. 38200 is in substantial conformance with the previously approved tentative map;
2) Approve Tract Map No. 38200 in accordance with the Conditions of Approval; 3) Accept the dedications as offered on the map for street and public utility purposes; 4) Accept the Subdivision Improvement Agreement, Performance Bond and Labor and Materials Bond, any substantive changes shall be approved by the City Manager and the City Attorney; 5) Authorize the City Clerk and City Engineer to sign the map evidencing the City Council’s approval; and
6) Authorize staff to process and file the map and subdivision improvement agreement with the County Recorder’s Office.
BACKGROUND:
A lot line adjustment was recorded on October 21, 2021 which removed APN 656-400-049 from inside Parcel A, as well as other adjustments to the southerly lot lines of APNs 656-080-016 and 656-080- 014.
On December 14, 2021, the Planning Commission of the City of the City of Desert Hot Springs approved Tentative Tract Map No. 38200 (TM-21-5) which proposed to divide the parcel into 76 residential lots, a lot for a retention basin, a lot for a recreation site, two lots for street dedication and public utility purposes, and internal tract streets. The Tentative Tract Map conditions were included as part of the Rancho Descanso Specific Plan Amendment SP-21-3 and Development Permit DP 21-18. On February 1, 2022, City Council approved the 2nd Reading for Specific Plan Amendment SP 21-3, Development Permit DP 21-18, and Tentative Tract Map 21-5.
DISCUSSION:
The applicant has now submitted an application to file the corresponding Final Tract Map No. 38200.
Tract Map No. 38200 will dedicate right-of-way for roadway purposes along Camino Campesino and Avenida Descanso, and create private streets within the residential tract.
Item Number: 6.
SR-23-215
The public improvements for Tract 38200 include off-site and on-site improvements. The off-site improvements are along Camino Campesino and Avenida Descanso along the frontage of the property and include but are not limited to grind and overlay of asphalt sections, road base material, asphalt, curb and gutter, sidewalk, driveway approach, streetlights, striping and marking, and landscaping and irrigation. The on-site improvements include but are not limited to on-site grading, fill and export, interior streets with base material and asphalt, curbs, sidewalks, walkways, entry improvements, storm drainpipes, catch basins, a retention basin, and landscaping and irrigation. All of these improvements are shown on street improvement and grading plans filed with the City. In order to guarantee the installation of these public improvements to the City and any future owners of the subdivided parcels, the developer has filed a Subdivision Improvement Agreement with the City. Performance of the agreement by the developer is guaranteed by performance and labor and materials bonds referenced in the agreement.
The Subdivision Improvement Agreement will be recorded with the County Recorder to notify any future owners of the requirements for development of the parcels. This is in accordance with the City’s Municipal Code.
A draft of the Subdivision Improvement Agreement, Performance Bond and Labor and Materials Bond is attached as an Exhibit. Any substantive changes to the draft agreement shall be approved by the City Manager and City Attorney.
Staff recommends that the Council find that the tract map is in substantial conformance with the previously approved tentative tract map.
FISCAL IMPACT:
There is no direct fiscal impact to the City as a result of this approval. Fees collected for permits will offset the City’s costs in processing the improvements. In addition, security will be posted to ensure that all improvements are completed prior to the issuance of a Certificate of Occupancy.
ATTACHMENTS:
1) Tentative Tract Map 38200
2) Tract Map No. 38200
3) Conditions of Approval
Item Number: 6.