COUNCIL AGENDA: 9/15/26
FILE: 26-934
ITEM: 3.3
TO: HONORABLE MAYOR
AND CITY COUNCIL
FROM: Lee Wilcox
SUBJECT: See Below DATE: September 1, 2026
Approved
Date
9/4/26
COUNCIL DISTRICT: Citywide
SUPPLEMENTAL
SUBJECT: Temporary Moratorium Related to Detention and Custodial Facilities
REASON FOR SUPPLEMENTAL
On August 12, 2026, the Rules and Open Government Committee directed the Administration to return with an interim ordinance that would support a temporary moratorium on the filing, acceptance, processing, or approvals of applications for the establishment, expansion, or change of use for a detention and custodial facility on private property, with certain exemptions and setting forth the facts constituting such temporary moratorium. This supplemental memorandum discusses information in support of a temporary moratorium and the scope of the moratorium.
RECOMMENDATION
Adopt an interim ordinance to implement a temporary moratorium on the filing, acceptance, processing, or approval of all applications for the establishment, expansion, or change of use for detention and custodial facilities on private property, with certain exemptions.
SUMMARY AND OUTCOME
Adoption of the interim ordinance will establish a temporary 45-day moratorium on the filing, acceptance, processing, or approval of applications for the establishment, expansion, or change of use for detention and custodial facilities on private property.
The temporary moratorium would not impact property owned or operated by a public
HONORABLE MAYOR AND CITY COUNCIL
September 1, 2026
Subject: Temporary Moratorium Related to Detention and Custodial Facilities
entity and would exempt certain uses. This pause will allow the City of San José to develop a plan to review existing land-use regulations and evaluate what additional development standards should be adopted, if any, to address potential impacts of such use.
BACKGROUND
The national detention system is large and fragmented, including government-owned and operated facilities as well as private facilities operated on behalf of the government.
In February 2026, a Department of Homeland Security (DHS) directive was circulated, which outlined the acquisition and development of eight large-scale detention centers, sixteen processing sites, and the acquisition of ten turnkey facilities. The directive asserted that United States Immigration and Customs Enforcement (ICE) intended to have all facilities active by November 30, 2026.1 This has included detention facility development in California.2
On June 10, 2026, the County of Santa Clara and the State of California filed a lawsuit seeking to enjoin the construction of an ICE facility outside of Gilroy. 3 Blueprints for the
proposed facility indicate it may be able to house up to 150 detainees. This local facility is the latest development in a quickly evolving expansion of detention facilities across the United States.
The County of Santa Clara and the State of California have raised concerns that the proposed project could result in significant environmental and infrastructure impacts, while local jurisdictions across the country have similar concerns about the potential impacts of detention facilities on local resources, public health, and safety. For example, these types of facilities can directly impact local infrastructure, such as traffic, sewage, water, as well as public safety resources.
4 Heightened immigration enforcement activity
more broadly has also been associated with reduced access to healthcare,5 education,6 and decreased willingness to report crimes.7
1 ICE Detention Reengineering Initiative. “ICE plans to activate all facilities by November 30, 2026, ensuring the timely expansion of detention capacity,” February 13, 2026. 2 Cal Matters, “What the Sale of 2 ICE Detention Centers Reveals About Trump’s New Immigration Strategy,” July 22, 2026.
3 County of Santa Clara and State of California v. U.S. Immigration and Customs Enforcement, No. 5:26-cv-05604 (N.D. Cal. filed June 10, 2026).
4 The Wall Street Journal, “[L]ocal police department has blown through its entire annual overtime budget in one month.” Basic Services in Minneapolis are Straining Under ICE Presence and Protests, January 31, 2026. 5 KQED, “Experts in the Bay Area and Los Angeles report that older patients and social service clients are staying home to avoid rampant immigration enforcement.” Fearing ICE, California Immigrant Seniors Retreat from Social and Health Services, December 21, 2025.
6 Urban Institute, “Findings suggest that incidents involving a greater number of immigration arrests correspond to immediate spikes in student absenteeism, as high as 11% for certain student demographics… sustained a cumulative 2% decline (over the four years of the study).” Weeks after the Raid: The Immediate and Sustained Changes in Student Attendance Rates Following Immigration Arrests, November 4, 2024. 7 Urban Institute, “Twenty percent of adults in all immigrant families and 44 percent in mixed-status families worried ‘a lot’ or ‘some’ about talking to the police.” Immigrant Families Express Worry as They Prepare for Policy Changes, March 12, 2025.
HONORABLE MAYOR AND CITY COUNCIL
September 1, 2026
Subject: Temporary Moratorium Related to Detention and Custodial Facilities
Examples of Impacts on Other Jurisdictions
Detention facilities can have a significant impact on the availability and quality of local water supplies when the surrounding infrastructure is not adequate to support the proposed use. For example, one lawsuit challenged the construction of a detention facility based in part on estimates that the proposed facility, a warehouse to detention center conversion, could use between 200 and 400 times the amount of water that the facility was previously using, creating an unsustainable depletion of an already strained public resource.
8 Furthermore, in another lawsuit challenging the construction of a detention facility, one municipality claimed it could not support such a detention facility, and the opposing party representatives suggested they would consider trucking in huge quantities of water or drilling wells to support the detention facility. 9 Similarly, large-scale detention facilities can have a significant impact on local infrastructure facilities intended to provide water, sanitation, and sewage services to those facilities.10 When local municipalities have raised concerns about whether local services can support detention facilities’ water and sewage needs, one proposed solution was hauling water and sewage elsewhere.11
Furthermore, detention facilities can impact local traffic, street conditions, and emergency services. These facilities generate vehicle trips from staff commuting to work, but also result in friends, family, and legal counsel exercising rights to visit detainees. These trips, in addition to transporting detainees to and from the facilities and any trips related to hauling water and sewage, could have a substantial impact on street conditions and local traffic surrounding the facilities. Proposals for detention facilities have also generated large demonstrations and public gatherings in other jurisdictions, which may require local traffic management, crowd management, or emergency response resources.12
How Other Jurisdictions Have Responded
The concern regarding the impact of a detention facility on local resources is not a unique issue, as municipalities across the country have raised concerns, issued moratoriums, amended zoning regulations, and filed lawsuits in an attempt to address these concerns.
8 Salt Lake City Corporation v. Mullin, No. 2:26-cv-00528-JNP (D. Utah filed June 8, 2026). The Salt Lake City warehouse was subsequently identified as one of the facilities DHS planned to sell or transfer to the General Services Administration. “ICE Spent $700 Million on 7 Warehouses. Now It Wants to Get Rid of Them,” New York Times, June 18, 2026.
9 City of Social Circle: “[DHS representatives] suggested hypothetical alternatives, such as drilling a well on the property or transporting water from off-site sources.” Updated Statement Regarding ICE Detention Facility, February 18, 2026.
10 NBC10 Philadelphia: “DHS Pulls Plans to Turn Berks, Schuylkill Warehouses into ICE Detention Centers,” July 23, 2026.
11Salt Lake City Corporation v. Mullin, No. 2:26-cv-00528-JNP (D. Utah filed June 8, 2026): “ICE officials told Mayor Mendenhall that they might truck water and sewage from the Salt Lake Mega Center as an ‘interim solution’ to the facility’s water and sewer needs.”
12 NBC Bay Area: “Protestors in San Jose’s Japantown Rally Against Possible ICE facility in Gilroy,” July 29, 2026.
HONORABLE MAYOR AND CITY COUNCIL
September 1, 2026
Subject: Temporary Moratorium Related to Detention and Custodial Facilities
In Tacoma, Washington, the city passed a comprehensive zoning ordinance regulating detention facilities. This zoning ordinance amended its municipal code, permitting detention facilities in its light industrial district with a Conditional Use Permit.13 This ordinance followed Tacoma’s enactment of an emergency interim zoning regulation on detention center construction, so the Planning Commission could conduct appropriate research, analyze impacts, and determine the appropriate regulatory framework for detention facilities in Tacoma.
In Salt Lake City, Utah, and Social Circle, Georgia, the cities attempted to regulate the water usage at new ICE immigration detention facilities. Both cities raised concerns that the area and local services could not support a detention facility. After discussion with the DHS, both cities filed lawsuits against DHS and ICE challenging the detention facility construction. In the lawsuits, the complaints allege that DHS did not comply with the National Environmental Policy Act (NEPA) or the Administrative Procedure Act in choosing detention facility sites. The cities point to a DHS directive that stated NEPA surveys were conducted for all sites.
14 The DHS directive also stated that other
analyses of utility services, zoning reporting, and review of water supply infrastructure and wastewater exportation were examined before choosing each site. Salt Lake City and Social Circle claim these reviews were extremely lacking because of how unfit their municipalities were to host a detention facility.
The Pennsylvania Department of Environmental Protection (DEP) brought a similar claim against DHS and ICE related to two proposed detention facilities in Upper Bern, PA, and Tremont, PA.
15 Pennsylvania DEP asserted that the municipal services could not support the facilities that were being constructed, and the localities surrounding the facilities would be harmed if the facilities were constructed as proposed. Pennsylvania DEP issued an administrative order instructing DHS to stop construction of the two facilities until it could show it had a sufficient plan to address water and sewage concerns with the proposed facilities. Pennsylvania DEP cited the Pennsylvania Safe Drinking Water Act, the Pennsylvania Clean Streams Law, and the Pennsylvania Sewage Facilities Act in asserting authority to issue the administrative order.
In several states, including California, Washington, and New Jersey, states have passed health and safety requirements and instituted required inspections for detention centers, following the poor conditions observed at detention facilities. These regulations have consistently been upheld in federal court. Recently, state health departments have filed lawsuits to try to enforce these health and safety inspection requirements after facility owners were unwilling to cooperate with the required inspections.
13 City of Tacoma: Correctional and Detention Facilities Regulations. GEO Group, Inc. challenged the regulations, and Tacoma prevailed in the litigation. The GEO Group, Inc. v. City of Tacoma, No. 3:18-cv-05233-RBL (W.D. Wash.
Nov. 13, 2019).
14 U.S. Immigration and Customs Enforcement: ICE Detention Reengineering Initiative, February 2026. 15 NBC10 Philadelphia: DHS Pulls Plans to Turn Berks, Schuylkill Warehouses Into ICE Detention Centers, July 23, 2026.
HONORABLE MAYOR AND CITY COUNCIL
September 1, 2026
Subject: Temporary Moratorium Related to Detention and Custodial Facilities
ANALYSIS
The San José Municipal Code does not currently define detention facility and custodial facility use. Irrespective of the result of the lawsuit challenging the proposed detention facility in Santa Clara County, the development has highlighted that San José does not have specific land-use and zoning regulations for such uses and needs to better understand the impacts that such uses could have in San José.
Currently, under Chapter 20.50 of the San José Municipal Code, any use not set forth in the Residential, Commercial, Industrial, Public/Quasi-Public, or Agricultural and Open Space Zoning District Table is only permitted as a conditional use in Heavy Industrial zones upon the issuance of a Conditional Use Permit. Detention facilities differ from typical commercial or administrative uses in that detainees may be housed overnight, functioning in some respects as a residential population. As such, locating a detention facility within a Heavy Industrial zone may present operational challenges due to potential incompatibility with sensitive receptors (e.g., children, pregnant women, or medically vulnerable individuals) who should not be subject to the noise, vibration, or heavy machinery typically associated with this zoning designation.
The Heavy Industrial land use designation is intended for industrial users with nuisance or hazardous characteristics that, for reasons of health, safety, environmental effects, or welfare, are best segregated from other uses. Allowing detention or custodial facilities within Heavy Industrial areas would require further analysis to assess impacts and the appropriate alternatives. The Envision San José 2040 General Plan provides guidance on the potential loss and preservation of scarce industrial land, effects on employment capacity and surrounding businesses, and whether the introduction of an occupied residential-like population could impose new operational restrictions or mitigation requirements on existing industrial users through Goal LU-6 – Industrial Preservation.
Specifically, LU 6.2 prohibits the encroachment of incompatible uses into industrial lands, as well as non-industrial uses which would result in the imposition of additional operational restrictions and/or mitigation requirements on industrial users due to land use incompatibility issues.
Additional analysis would be required to assess environmental health and safety concerns including, but not limited to, exposure to noise, vibration, air pollutants, hazardous materials, truck traffic, and emergency incidents, with particular consideration given to sensitive receptors. The analysis will also need to examine alternative locations and zoning districts, appropriate separation and performance standards, emergency evacuation and response, transportation needs, environmental justice implications, and the permitting and environmental review process necessary to evaluate individual proposals. This analysis is required to determine which land use designations, if any, could appropriately accommodate detention facilities and what regulatory safeguards would be required.
HONORABLE MAYOR AND CITY COUNCIL
September 1, 2026
Subject: Temporary Moratorium Related to Detention and Custodial Facilities
The primary goal of the proposed moratorium is to determine the appropriate zoning treatment for potential detention and custodial facilities. A San José detention facility may be imminent, and the City of San José needs time to assess how best to address these uses within its zoning framework. The moratorium would provide staff with the necessary time to develop and implement a full regulatory land use framework that addresses detention and custodial facilities in San José, such that undesirable impacts on local communities and resources are minimized.
Adoption of a moratorium is authorized under California Government Code Section 65858, which allows a legislative body to impose interim ordinance measures when there is a current and immediate threat to public health, safety, or welfare. Such an ordinance requires approval by nine members of the City Council and must include findings demonstrating the current and immediate threat to public health, safety, or welfare. Once adopted, the moratorium will take effect for 45 days, with the potential for extensions up to two years as permitted by law.
Current and Immediate Threat to Public Safety, Health, or Welfare
Detention facilities have been proliferating across the nation. Most recently, within San José’s own county, development activity has occurred at the site of a proposed federal immigration detention facility on unincorporated land near Gilroy. The concern regarding the development of local detention or custodial facilities is no longer hypothetical.
Blueprints for the proposed Santa Clara County facility include detention and processing areas, weapons and ammunition rooms, and tactical equipment storage, illustrating that these facilities may involve operational and public-safety considerations beyond those associated with typical commercial or administrative uses. These considerations, together with potential impacts on residents, infrastructure, emergency response, public services, surrounding land uses, and the local economy warrant evaluation before similar uses are permitted within San José.
Various lawsuits across the country have raised concerns about the impacts a detention facility can have on a local community if careful consideration is not given to the location of the detention facility. The operation of detention facilities may generate additional vehicle trips associated with employees, detainee transportation, visitors, legal counsel, service providers, and facility operations, with potential impacts on traffic congestion and road conditions. Proposals for detention facilities have led to large demonstrations and public gatherings in other jurisdictions, which would require local traffic management, crowd management, or emergency response resources. The community reaction to a detention facility needs to be considered. Detention facilities in California have a history of providing poor living conditions and substandard medical care. These issues would be exacerbated if the facility was constructed in an inappropriate zoning district. The purpose of land use regulation is to mitigate these types of issues.
HONORABLE MAYOR AND CITY COUNCIL
September 1, 2026
Subject: Temporary Moratorium Related to Detention and Custodial Facilities
Experiences in jurisdictions across the country demonstrate that detention facility proposals can move forward with limited, if any, notice to local governments, leaving jurisdictions little time to evaluate potential land-use, infrastructure, environmental, and public safety impacts before significant project decisions have been made. In some cases, local governments have turned to litigation after development activity was already underway.
During the 45-day moratorium, staff will develop a plan and begin work on a regulatory framework to address detention and custodial facilities. This will include, but is not limited to:
• Research how other municipalities have addressed detention and custodial facilities in their land use regulations
• Define “detention facility and custodial facility” use to be incorporated into the San José Municipal Code
• Evaluate appropriate updates to Title 20 of the San José Municipal Code • Examine permitting processes, including Conditional Use Permitting, to determine the best course of action for reviewing detention and custodial facility applications
EVALUATION AND FOLLOW-UP
Staff will prepare a report at least 10 days prior to the expiration of the initial moratorium period detailing the measures taken to address the conditions that led to its adoption.
The outcome of this process will guide the City Council’s consideration of long-term policy options for regulating detention facilities citywide.
FISCAL IMPACTS
The interim ordinance, if adopted, is not expected to have any significant budgetary impacts, though this work effort will reduce existing staff capacity to engage in other planning policy activities.
COORDINATION
This memorandum has been coordinated with the City Attorney’s Office.
PUBLIC OUTREACH
This memorandum will be posted on the City Council Agenda website for the September 15, 2026 Council meeting.
HONORABLE MAYOR AND CITY COUNCIL
September 1, 2026
Subject: Temporary Moratorium Related to Detention and Custodial Facilities
BOARD, COMMISSION, COMMITTEE RECOMMENDATION AND INPUT
No commission recommendation or input is associated with this action.
CEQA
Not a Project, File No. PP17-008, General Procedure and Policy making resulting in no changes to the physical environment.
PUBLIC SUBSIDY REPORTING
This item does not include a public subsidy as defined in section 53083 or 53083.1 of the California Government Code or the City’s Open Government Resolution.
Lee Wilcox
Assistant City Manager
For questions, please contact Lydia Bustamante, Assistant to the City Manager, City Manager’s Office of Racial and Social Equity at [email protected].