SPECIAL TOWN COUNCIL MEETING
STAFF REPORT
AGENDA ITEM #6
MEETING DATE November 19, 2024
PREPARED FOR Mayor and Town Council
PREPARED BY Janet Coleson, Town Attorney and Heather Abrams, Town Manager SUBJECT Introduction of an Ordinance Repealing Town Code §12.36.020 Nighttime Use; Permission of Town Clerk, or Designee, Required and §12.36.030 Nighttime Use; Grant of Permission; Conditions; Construction and Adding Chapter 9.30 Camping on Public Property, to Title 9, Public Peace, Morals and Welfare of the Town Code
RECOMMENDATION
Waive first reading, read by title only and introduce an ordinance repealing Town Code §12.36.020 Nighttime Use; Permission of Town Clerk, or Designee, Required and §12.36.030 Nighttime Use; Grant of Permission; Conditions; Construction and Adding Chapter 9.30 Camping on Public Property, to Title 9, Public Peace, Morals and Welfare, of the Town Code.
DISCUSSION
For many years, the 9th Circuit’s opinion in Martin v. Boise has required a municipality be able to demonstrate adequate shelter beds are available before enforcing ordinances prohibiting camping on public property or risk violating the prohibition against cruel and unusual punishment contained in the 8th Amendment to the U.S. Constitution. The recent U.S. Supreme Court decision in Johnson v. City of Grants Pass, however, addressed this very issue and found that enforcement of the anti-camping ordinance in Grants Pass, Oregon did not constitute a violation of the 8th Amendment prohibition against cruel and unusual punishment and therefore municipalities do not have to demonstrate the availability of adequate shelter beds prior to enforcing an anti-camping ordinance.
Further, the Court acknowledged a municipality's interest in maintaining public health, safety, and welfare, which includes regulating the use of public spaces to prevent hazards and ensure accessibility for all community members, including those who are unhoused. As well, the Court noted the importance of local governments providing supportive services and resources to unhoused individuals.
Following the U.S. Supreme Court decision, Governor Newsom issued Executive Order N-1-24 that included a call to action for local governments to remove encampments from public spaces.
Currently, the Fairfax Town Code does not include an up-to-date and enforceable prohibition on camping on public property. Chapter 9.30 provides a means by which the Town may enforce such a prohibition. The older sections of the Town Code requiring permission of the Town Clerk for groups to camp in a Town park do not provide the Town an up-to-date means of enforcing a prohibition on camping on public property in the Town and need to be repealed.
The proposed ordinance aligns with the Supreme Court’s decision by targeting the act of camping and storing of personal property rather than the status of individuals. It ensures that enforcement is based on conduct, thereby avoiding unconstitutional penalties based on status. Provisions within the ordinance mandate that enforcement officers provide notice and opportunities for individuals to 2 remove their belongings before any enforcement action and requires storage of personal property with the opportunity for retrieval of the property prior to disposal.
The presence of encampments in specific areas within the City poses a threat to the public health, safety and welfare of those residing in the encampments and the community at large because of the damage to public property, risk of fire, unsanitary conditions, environmental degradation and restricted access for other lawful users of the property as well as for maintenance, operations or emergency services purposes.
The Town continues to partner with the County of Marin in the commitment to provide a holistic approach where enforcement of an anti-camping ordinance is only one aspect. The resources provided by the County and various local nonprofits strive to ensure access to shelters, housing programs, and other essential services.
The limitation on municipalities’ ability to enforce public camping regulations was based on prior court decisions that no longer reflect current law. Accordingly, the proposed new addition to the Town Code regarding camping on public property will enable the Town to protect and preserve lives and infrastructure, ensure the provision of vital police services, and protect public health and safety during severe weather and fire season.
FISCAL IMPACT
Immediate costs of implementing the new Code section include the fabrication and posting of signs on public property notifying the public of the prohibition on camping. Should an enforcement action commence, the Town will incur costs to hire a clean-up company specially trained to perform such tasks as well the cost of renting a storage unit for several weeks in which to store the personal property of those camping on public property until the allowed time for retrieval has passed. Finally, there may be additional expenses for the Police Department and other Town staff to carry out or support enforcement action.
ATTACHMENT
Ordinance
1 ORDINANCE NO.
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF FAIRFAX AMENDING THE FAIRFAX TOWN CODE, REPEALING SECTIONS 12.36.020 NIGHTTIME USE; PERMISSION OF TOWN CLERK, OR DESIGNEE, REQUIRED AND 12.36.030 NIGHTTIME USE; GRANT OF PERMISSION; CONDITIONS; CONSTRUCTION, AND ADDING CHAPTER 9.30 CAMPING ON PUBLIC PROPERTY TO TITLE 9, PUBLIC PEACE,
MORALS AND WELFARE
WHEREAS, the Town of Fairfax is committed to protecting the life, health, safety and welfare of its residents and all people within the geographical boundaries of the Town; and WHEREAS, the Town Council finds that certain public lands within the Town’s geographical boundaries may pose significant health, safety and welfare hazards to people who make shelter or stay overnight in these areas; and
WHEREAS, the Town Council finds that some of these public lands are environmentally sensitive and may be significantly damaged by unregulated human activity; and WHEREAS, the Town Council is committed to protecting the rights of individuals who cannot obtain shelter and to treating their personal property with respect and consideration; and WHEREAS, the Town of Fairfax works with and through the County of Marin to engage in significant outreach work to build relationships with people experiencing homelessness, using a person-centered, compassionate approach to provide services tailored to each person’s specific needs; and
WHEREAS, Town streets, sidewalks, and other public spaces are intended for safe and sanitary shared use by a diverse community of users including businesses, government, and the general public for gathering and movement of people and are frequently used by people relying on a variety of mobility devices; and
WHEREAS, the Town annually experiences extended periods of high temperatures with little or no precipitation which can significantly increase the danger and spread of wildfires and add to the severity of fires when they start; and
WHEREAS, the Town is obligated to protect public health, safety, welfare and its natural resources by maintaining clean, safe, and accessible Town properties for all residents to enjoy, including in the public right of way; and
WHEREAS, to mitigate risks to the health and safety of its citizens and potential damage to environmentally sensitive lands, the Town Council desires to adopt regulations prohibiting camping and the maintenance of an encampment, regardless of the availability of shelter, due to the significant health and safety risk to those engaged in that activity, the general public, and the environment; and
2 WHEREAS, it is the intent of this Ordinance to prohibit camping, sleeping, and maintenance of encampments within the Town while encouraging people experiencing homelessness to access a variety of services available through Marin County programs; and WHEREAS, when abating any encampment, the Town will provide written notice in advance that explains when the encampment will be cleared and how an individual may reclaim items stored during the process; and
WHEREAS, the Town will store any personal property that may belong to a person, has apparent utility in its current condition and can be safely retrieved from the site, but will not store property that is hazardous, not storable, contraband, or otherwise appears to have been abandoned during the abatement process.
NOW THEREFORE, the Town Council of the Town of Fairfax does ordain as follows:
Section 1. The above recitals are true and correct and are hereby incorporated into this ordinance by this reference.
Section 2. Fairfax Town Code Section 12.36.020 Nighttime Use; Permission of Town Clerk, or Designee, Required and Section 12.36.030 Nighttime Use; Grant of Permission; Conditions; Construction are hereby repealed.
Section 3. Chapter 9.30 Camping on Public Property is hereby added to Fairfax Town Code, Title 9 Public Peace, Morals and Welfare to read as follows:
“Section
9.30.010 Findings and Purpose
9.30.020 Definitions
9.30.030 Town Council Authorized to Adopt Rules and Regulations
9.30.040 Protection of Waterways
9.30.050 Unauthorized Encampments or Sleeping on Public Property
9.30.060 Abatement of Encampments
9.30.070 Abandoned Personal Property
9.30.080 Enforcement
Section 9.30.010 Findings and Purpose.
The Town Council finds that the Town of Fairfax is committed to protecting the life, health, safety, and welfare of all people in the Town and finds that certain public lands within the geographical boundaries of the Town pose significant health, safety and welfare hazards to the people who make shelter or stay overnight in these areas. Additionally, the Town Council finds that some of these public lands are environmentally sensitive and may be significantly damaged by unregulated human activity. The Town Council is committed to protecting the rights of individuals related to their personal property and to treating such property with respect and consideration.
It is the purpose of this chapter to set standards for the preservation and protection of human life, health, safety and welfare, to further the preservation and protection of sensitive public lands to prevent destruction of these assets, and to establish a process for the collection, storage, and disposal, recycling, or reuse of personal property found in unpermitted encampments on public property.
3 Section 9.30.020 Definitions.
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
Abatement means the process of documenting and collecting eligible items for storage, and removing and disposing, recycling, or reusing of waste at an unpermitted encampment according to the process in this chapter.
Camp or Camping means to pitch, erect, or occupy an encampment, or to use camp paraphernalia or both, for the purpose of, or in a way that facilitates outdoor sheltering for living accommodation purposes or for remaining outdoors overnight.
Camp paraphernalia means personal property used to facilitate occupancy of an area and includes personal property typically associated with camping such as tarps, cots, beds, sleeping bags, hammocks, bedding, camp stoves, cooking equipment, buckets, and similar equipment, mattresses, couches, dressers, or other furniture.
Town Manager means the Town Manager of the Town of Fairfax, California or designee.
Encampment means one or more temporary, makeshift, or hand-built structures not intended for long-term continuous occupancy, including tents, that are used to shelter one or more persons or their belongings and that are not authorized by the property owner. Encampment includes any camp paraphernalia and personal property associated with or located in or around the structures or tents.
Open space means any undeveloped public property either primarily in its natural state, including canyons, bluffs, and unimproved waterways, or that is held out by the Town or other public agency or used by the public for passive recreational purposes, conservation, habitat preservation, or that maintains or enhances the conservation of natural or scenic resources.
Park means any public property, whether developed or undeveloped, held out by the Town or other public agency or used by the public for active or passive park and recreation uses, including adjacent buffer lands and natural areas and any adjacent parking lots and perimeter sidewalks.
Public Property means any public parks, open space, public grounds, public facilities, and public buildings, including immediately adjacent public areas, or any property managed, maintained, operated, and controlled by the Town or other public agency.
Waste means any rubbish, solid waste, liquid waste, infectious waste, or medical waste. Waste also includes abandoned or unidentified personal property that is left unattended on public sidewalks and rights-of-way or other public property. Waste does not include compost piles, composting or Recyclable Material properly contained and disposed of in a timely fashion.
Waterway means all the portions of any creek or flood control channel located within the boundaries of the Town and controlled by the Town or other public agency. 4 Section 9.30.030 Town Council Authorized to Adopt Rules and Regulations.
The Town Council, by resolution, may adopt such rules and regulations as it deems necessary to regulate the use and occupancy of public property and to facilitate the enforcement of this chapter.
Section 9.30.040 Protection of Waterways.
(A) It is unlawful for any person to do any of the following:
(1) build or erect a structure of any type along the banks of any waterway, or drive a nail or other object into any tree or other natural area vegetation for the purpose of building an encampment or any other structure, or to affix an object to any tree or other natural vegetation;
(2) move boulders or large rocks, destroy vegetation, paved roads or paths created by the Town or other public agency, or otherwise reconfigure the natural landscape in the waters of or along the banks of a waterway; (3) drive, park, or bring any vehicle along the banks of a waterway, except in places specifically provided and designated for vehicular use; (4) dig into the soil on the banks of a waterway; or
(5) discharge or store waste, including garbage, refuse, or human or animal waste, along the banks or into the waters of a waterway. (B) Nothing in this section is intended to prohibit the activities of an owner of public or private property or other lawful user of private property that are normally associated with and incidental to the lawful and authorized use of property; and nothing is intended to prohibit the activities of a lawful user if such activities are expressly authorized by the Town Manager or by any law, regulation, permit, order or other directive from a regulatory authority.
Section 9.30.050 Unauthorized Encampments or Sleeping on Public Property. (A) It is unlawful for any person to camp or to maintain an encampment in or upon any public property, including in any bus shelter, street, sidewalk, park, open space, waterway, and banks of a waterway, unless in an area(s) specifically designated for camping.
(B) No person may sleep on any public sidewalk, bus shelter, street, alleyway, median, parkway or right of way, or in any pedestrian or vehicular entrance to public or private property abutting a public sidewalk, at any time as to do so compromises individual and public safety.
(C) At all times it is unlawful for any person to camp, maintain an encampment, or sleep, where such activity poses:
(1) an immediate threat or an unreasonable risk of harm to any person, (2) an immediate threat or an unreasonable risk of harm to public health, safety or welfare, or
(3) disruption to any business, store, religious institution, educational facility, or government services.
5 (D) At all times it is unlawful for any person to camp, maintain an encampment, or sleep, in the following locations:
(1) within two blocks of a school that offers instruction on those courses of study required by the California Education Code or that is maintained pursuant to standards set by the State Board of Education provided that signs are posted prohibiting camping that are clearly visible to pedestrians. School for purposes of this Section does not include a vocational or professional institution of higher education, including a community or junior college, college, or university;
(2) in any open space, waterway, or banks of a waterway; (3) within any transit hub or bus shelter, or along any rail tracks provided that signs are posted prohibiting camping that are clearly visible to pedestrians; and
(4) in any park where it is determined there is a substantial public health, safety and welfare risk and provided that signs are posted prohibiting camping that are clearly visible to pedestrians.
Section 9.30.060 Abatement of Encampments.
The Town Manager may direct the removal of personal property, camping paraphernalia, and all other property, contraband, litter, and waste found at an encampment or at a location where a person is engaged in unlawful camping, provided such removal is in compliance with the following procedures:
(A) Written Notice Required Prior to Abatement
(1) A written Notice of Clean-Up, in English and Spanish, will be posted on each tent or structure and in any other distinct areas of the encampment providing notice of the date of clean-up and giving a minimum of 72 hours for persons to remove their personal property. The written notice shall also include the following statement, which may be updated by the Town Manager to provide accurate and current information:
You must remove your belongings from this site within 72 hours. You should not leave behind any belongings you want to keep. All belongings left behind will be removed by the Town. The Town will post an Impound Notice, in English and Spanish, if belongings are stored during the clean-up process.
If you wish to minimize the risk of losing valued belongings, you should try to keep those belongings on your person at all times, in a storage facility, or in visible, sanitary, and safely accessible bags or bins.
If you think your belongings were stored, you can claim them by following the directions on the Impound Notice after the clean-up is 6 complete. You may retrieve any stored belongings without being asked about your immigration status.
(2) After 72 hours, the Town Manager shall be authorized to conduct abatement or clean-up of the site on the date posted on the Notice of Clean-Up. If abatement is delayed or rescheduled, the Town Manager may conduct abatement within 72 hours of the posted Notice of Clean-Up without reposting a new Notice of Clean-Up. If abatement is delayed for a longer period of time, the Town Manager shall repost a Notice of Clean-Up with a new date.
(B) The Town Manager shall follow these additional procedures when persons are present at an encampment during abatement:
(1) The Town Manager shall evaluate reasonable requests for additional time or assistance to remove items and may accommodate those requests to the extent practicable.
(2) Any person who returns to an encampment during abatement shall be allowed to remove their personal property from the site. Personal property left behind will be deemed abandoned.
(3) Any person arrested for a criminal offense or an outstanding warrant shall not be required to abandon personal property they identify as their own.
Unless the person requests the personal property be discarded or entrusted to another, all personal property of apparent value will be impounded by the Town in accordance with existing policy and procedure. Where the owner of the items cannot be readily identified or discovered, the Town Manager shall follow the abatement process in this chapter.
(C) The Town Manager shall document the abatement process as follows:
(1) photograph or video record the site before any abatement begins, (2) when feasible, open backpacks, purses, suitcases, and other small storage containers to determine whether they contain items eligible for storage, and (3) photograph or video record the site after abatement has concluded. (D) Unclaimed items found in abatement shall be eligible for storage if:
(1) circumstances indicate that the item belongs to a person, (2) the item has apparent utility in its current condition and circumstances, and (3) the item can be safely retrieved from the site.
Examples of items potentially eligible for storage include identification and associated paperwork, medication stored in medication bottles with identifying information, art, art supplies, musical instruments, and items that reasonably appear to have sentimental value in their current condition. An item need not be in a new or perfect condition to have apparent utility. (E) An eligible item found during an abatement shall be put into storage, unless it meets one the following disqualifying conditions:
7 (1) hazardous, including items contaminated with human waste or bodily fluid, soiled items likely to expose others to disease, animal waste, insects, explosives, weapons, liquids, drug paraphernalia, or mold; (2) likely to become hazardous in storage, including perishables, wet materials that might become moldy, and items covered in mud;
(3) practically un-storable, due to large size, weight, or other similar characteristic;
(4) contraband or stolen property; or
(5) is on the Town Manager’s current list of common types of items that, in the experience of Town staff, individuals regularly abandon during abatement, and there is no contrary indication as to the specific item. (F) The Town Manager shall record each eligible item to be stored, including the location it was found and the date of storage. Any stored items shall be kept in storage at least 30 calendar days and then may be disposed of, recycled, or reused following the process in this chapter (Abandoned Personal Property). (G) After abatement has concluded and when eligible items are collected and will be placed in storage, the Town Manager shall post notices, in English and Spanish, at the location of the abatement that includes information on how a person may claim stored items. A person may retrieve stored items based on a description with sufficient specificity to demonstrate ownership. A person may retrieve stored items without inquiry into the person’s immigration status.
(H) Expedited Abatement:
(1) In an expedited abatement, the Town Manager shall follow the same abatement and storage procedures in this chapter (Abatement of Encampments), but shall post a Notice of Clean-Up, in English and Spanish, giving a minimum of three (3) hours for all persons to remove their personal property.
(2) The Town Manager shall prioritize and expedite the removal of an encampment if:
(a) the Town receives direction from Marin County or other governmental authority that abatement of the encampment is necessary to preserve public health or safety, including to address known or suspected outbreaks of diseases; or
(b) the Town Manager observes or reasonably suspects the encampment creates a condition that presents a significant risk of property damage, bodily injury or death.
Section 9.30.070 Abandoned Personal Property.
(A) Any personal property or possessions located on public property that are unattended and whose owner cannot be readily identified are presumed to be abandoned and, pursuant to Civil Code section 2080.7, any contrary provisions regarding procedures for unclaimed property in this Code do not apply. The Town Manager shall make a reasonable effort to ascertain whether the unattended personal property or possessions have been abandoned and, if so, to thereafter 8 cause their removal. Any personal property or possessions found during the abatement process shall first be stored as required by this chapter. (B) Unattended personal property or possessions that are unsanitary, soiled contain evidence of vermin may be summarily abated and destroyed. Unattended personal property or possessions that are not summarily abated or destroyed under this section may be disposed of or recycled by the Town Manager or donated for reuse.
Section 9.30.080 Enforcement.
It is unlawful for a person to violate or to fail to comply with any provision of this chapter. If an encampment is found on public property by any member of the public, a report of such encampment must be made to the Fairfax Police Department. No member of the public is permitted to attempt any enforcement or harassment of any person potentially in violation of any provision of this chapter. The Town may enforce any provision of this chapter by any one or more of the following methods:
(A) Any person who violates any provision in this chapter is guilty of an infraction, punishable by a one hundred dollar fine.
(B) This chapter also may be enforced as an administrative violation under Fairfax Town Code Chapter 1.10 with fines set at $100 for the first violation, $200 for a subsequent and second violation within one year and $500 for the third and all subsequent violations within one year.
(C) Any violation of this chapter may be enforced by any other civil remedy authorized by law.“
Section 4. Severability. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect any other provisions or applications, and to this end the provisions of this Ordinance are declared to be severable.
Section 5. Effective Date. This ordinance shall be effective thirty (30) days after the date of its adoption.
Section 6. Posting. Within fifteen days after the passage of this ordinance, the Town Clerk shall cause it or a summary of it to be posted in the following three places: Fairfax Town Hall; the Fairfax Library; and the Fairfax Post Office.
Section 7. Compliance with CEQA. This Ordinance was assessed in accordance with the authority and criteria contained in the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and the environmental regulations of the Town. The Town Council hereby finds that pursuant to CEQA Guidelines section 15061(b)(3), this Ordinance is exempt from the requirements of CEQA because it can be seen with certainty that the provisions contained herein would not have the potential for causing a significant effect on the environment. Further, and in the alternative, the Town Council finds that the Ordinance is exempt from the requirements of CEQA pursuant to CEQA Guidelines sections 15307 and 15308 as an action by a regulatory agency taken to protect the environment and natural resources. The Town Council hereby 9 directs the Town Manager to prepare and file a Notice of Exemption within five business days following adoption of this Ordinance.
The foregoing ordinance was introduced at a special meeting of the Town Council of the Town of Fairfax held on the 19th day of November, 2024.
ADOPTED and ordered posted at a meeting of the Town Council of the Town of Fairfax, held on the ________day of _____________, 2024, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_______________________________
BARBARA COLER
MAYOR
ATTEST:
_________________________________
CHRISTINE FOSTER
DEPUTY TOWN CLERK