Fremont City Council Meeting: 11/14/23 07:00 PM
3300 Capitol Avenue Div/Dept: City Manager's Office
Fremont, CA 94538 Category: Presentations
SCHEDULED
Sponsors:
COUNCIL STAFF REPORT (ID # 5046) DOC ID: 5046
Updated: 11/8/2023 9:54 AM by Susan Gauthier Page 1
VEHICULAR HOMELESSNESS RESPONSE UPDATE – Staff Report Outlining the City of Fremont’s Current Regulatory Environment and Procedural Approach to Vehicles Being Used as Dwellings
Contact Persons:
Name: Allen DeMers Rafael Alvarado
Title: Deputy City Manager City Attorney
Div/Dept: City Manager's Office City Attorney's Office
Phone: 510-494-4651 510-284-4030
E-Mail: [email protected] [email protected]
Executive Summary: This staff report presents information to the Fremont City Council regarding vehicular homelessness in the City of Fremont. The report details the legal framework that guides City staff in their response to community concerns surrounding occupied vehicles on City streets, outlines the framework by which staff deploy resources to address vehicle related concerns, and updates the Council on additional forthcoming actions and considerations associated with the City of Fremont’s Homelessness Response Plan, which is under construction at this time.
BACKGROUND: Staff is aware that vehicular homelessness is a growing issue of concern in our community and in the broader region. Overall, homelessness in Fremont has increased substantially in recent years, with the latest Homelessness Point in Time (PIT) Count indicating unhoused individuals in Fremont rose from 608 in 2019 to 1,026 in 2022. During that same period, unsheltered residents living in recreation vehicles has risen from 143 in 2019 to 262 in 2022.
Substantial Legal Issues Governing Homelessness Abatement Activities:
• Lavan v. City of Los Angeles (2012): Held that the Fourth and Fourteenth Amendments protect homeless persons from government seizure and summary destruction of their unabandoned, but momentarily unattended, personal property.
The court imposed an injunction barring the city from destroying seized property without maintaining it in a secure location for a period of less than 90 day, unless there is an immediate threat to public health or safety.
• Desertrain v. City of Los Angeles (2014): Held that the city’s ordinance prohibiting the use of a vehicle parked or standing upon a city street as living quarters, either overnight, day-by-day, or otherwise was vague, overbroad, and lacked standards for exercising discretion resulting in arbitrary enforcement that targeted the unhoused.
• Martin v. City of Boise (2018): Limits a city’s authority to impose criminal penalties (i.e., arrest or cite) individuals who are sitting, lying or sleeping on public property that is open to the public, such as streets and sidewalks, when there are no shelter beds available for the individuals and the individual is not obstructing egress.
Council Staff Report (ID # 5046) Meeting of November 14, 2023 Updated: 11/8/2023 9:54 AM by Susan Gauthier Page 2
• Johnson v. City of Grants Pass (2022): Limits a city’s authority to prohibit homeless persons from using “bedding, [a] sleeping bag, or other material used for bedding purposes” while sleeping in public. Clarifies that the ruling in Martin v. Boise is also applicable to civil citations that precede criminal penalties.
• California Vehicle Code: California Vehicle Code (“CVC”) authorizes the City to tow vehicles on public and private property for various reasons. The most common reasons include: a determination that the vehicle has been abandoned, that the vehicle is a hazard to public health and safety and/or that the vehicle registration expiration date is in excess of 6 months before the date it is found or operated on the highway, public lands, or the off-street parking facility. Additionally, the CVC authorizes the towing of a vehicle that is parked or left standing upon a highway for 72 or more consecutive hours in violation of a local ordinance authorizing removal.
Fremont Municipal Code section 10.05.120 is the City’s local ordinance that authorizes removal of a vehicle parked on any street for more than a consecutive period of 72 hours. If City staff determines it necessary to tow a vehicle being used as shelter, staff provide 7 days written notice to the owner, absent emergency circumstances.
• Kennedy v. Ridgefield: Although not related to homelessness abatement activities, this case stands for the proposition that a government official can be liable for affirmatively, and with deliberate indifference, placing an individual in a dangerous situation they would not have otherwise faced.
DISCUSSION/ANALYSIS:
Responding to Community Concerns about Vehicular Homelessness:
City staff currently perform mitigation activities in a manner consistent with City Council direction and in compliance with State and local legal framework. There are no legally enforceable local laws or ordinances that prohibit individuals from sleeping in vehicles in the City of Fremont. There are also no current City of Fremont laws or ordinances that expressly address where recreational vehicles (RV’s) can park, separate and distinct of the rules that govern all vehicle parking in Fremont.
In practice, City staff respond to concerns related to an RV serving as shelter to an unhoused person promptly but thoughtfully. Staff’s approach seeks to comply with state and federal law governing such interactions and seeks to achieve positive community outcomes when addressing a concern. The circumstances and conditions of a vehicle being used as a dwelling determine if the City’s response is regulatory, service and outreach oriented or both. Staff may conduct an assessment of onsite conditions, arrange outreach to the vehicle occupants and/or connect occupants to resources in the community. Ideally, staff can identify locations to which individuals can relocate, such as available shelter placements.
Outreach is also likely to include resource education and abatement of trash or materials.
Council Staff Report (ID # 5046) Meeting of November 14, 2023 Updated: 11/8/2023 9:54 AM by Susan Gauthier Page 3
City staff prioritizes all of its encampment management and enforcement related activities (inclusive of vehicle-based encampments) according to an encampment management strategy. This strategy is not a hard and fast policy but is instead a living document developed based on staff’s extensive experience in the field. In practice, the strategy prioritizes enforcement and mitigation at encampments that:
• Develop on private property;
• Impair vehicle, bike, or pedestrian traffic;
• Impair bus stops, sidewalks, and ADA access points needed by those with disabilities;
• Impair emergency ingress/egress routes;
• Impair driveway access and unloading access; and
• Are present in locations with existing Parking Restrictions
Other conditions that trigger enhanced enforcement/response by City staff are as follows:
• Dumping of materials or liquids into waterways, storm drains, gutters, sidewalks, streets, and other public areas;
• Unsanctioned electrical or water taps;
• Trespassing, loitering, or dumping on adjacent private properties; • Parking along streets or within parking lots with posted restrictions; • Lodging or camping on public property, with posted restrictions, including City parks; • Non-operable or immobile vehicles and structures on City streets; unregistered vehicles or vehicles with expired registration;
• Destruction of property—modifying or vandalizing public spaces and infrastructure (e.g., graffiti, digging); and
• Criminal activity including, but not limited to, theft, threats, acts of violence, and drug solicitation.
Reports of criminal activity are addressed by trained Police Department staff independ ent of an individual’s unhoused status. General traffic safety issues that may be relevant to vehicular homelessness (such as the creation of passenger loading or unloading zones, no parking areas, bike lanes etc.) are referred to and managed by the City’s traffic safety experts, separate and distinct from their potential association with homelessness.
Considerations for Potential Future Parking Related Regulation: As the Council is aware, City staff are currently developing a Homelessness Response Plan that is expected to be complete in Spring 2024. That plan will include holistic recommendations to reduce vehicular homelessness in Fremont. The plan will also address complimentary regulatory action for City Council consideration.
As the City contemplates additional regulation, staff will seek to emulate parking ordinances that have survived likely legal challenges. Successful parking ordinances define forbidden parking-related conduct (such as areas or hours of parking allowable for large vehicles), are clear, simple and unambiguous, and do not encourage arbitrary enforcement. Unsuccessful ordinances demonstrate selective enforcement against the unhoused at a higher rate than against other people. Some cities that have attempted to ban vehicle habitation outright have faced lawsuits, with the courts finding that the bans resulted in arbitrary enforcement that targeted the unhoused.
Council Staff Report (ID # 5046) Meeting of November 14, 2023 Updated: 11/8/2023 9:54 AM by Susan Gauthier Page 4
Consequently, any staff recommendations contained within the Homeless Response plan will be constructed very thoughtfully, will consider available City resources, and will be coupled with recommendations to intervene in and resolve homelessness when possible.
FISCAL IMPACT: NA
ENVIRONMENTAL REVIEW: NA
ATTACHMENTS: None.
RECOMMENDATION: Accept Informational Staff Report