Critical
Infrastructure
Discussion on
Background: Critical Infrastructure
Illegal encampments pose various risks to critical
infrastructure, including fire, contamination, and
physical destruction.
Illegal encampments also obstruct critical
infrastructure, impeding individuals from inspecting
or accessing critical infrastructure. This obstruction
can affect City employees, but also employees of
other government entities, utility companies, etc.
Background: Martin v. Boise (2019)
The U.S. Court of Appeals for the 9th Circuit prohibits cities from imposing broad criminal penalties for
“sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.”
The Court did not outright ban City prohibitions on
encampments. Rather , the Court leaves the door open
to some regulation even if no shelter is available.
An ordinance restricting encampments on or around
critical infrastructure is narrowly tailored to avoid
eliciting a challenge under Martin v. Boise.
Current City Code Addressing Encampments
The current Code does not specifically address
encampments on critical infrastructure.
SMC Section 9.28.050, which prohibits trespassing
generally, requires “No Trespassing” signage be posted by the property owner.
SMC Section 9.64.030 prohibits obstruction of sidewalks and right-of-ways, but is limited to those specific areas. City can utilize California Penal Code sections on
trespassing generally.
A new ordinance would provide clarity, simplicity, and specificity regarding prohibitions and enforcement
procedures.
New Ordinance – Locations
Four areas for consideration:
Levees
Sloughs
Wildfire Risk Areas (as defined by the California Fire Code) Additional City-designated Critical Infrastructure.
Can include, but is not limited to, government buildings, such as fire stations, police stations, jails, or courthouses; hospitals; structures, such as antennas, bridges, roads, train tracks, or drainage systems; or systems, such as computer networks, public utilities, electrical wires, natural gas pipes, telecommunication centers, or water sources.
New Ordinance – Locations
For City-designated Critical Infrastructure, the list can either be:
Created and revised by the City Manager; or
Proposed by the City Manager, and subject to City Council approval.
Such approval would be required for initial adoption as well as each subsequent amendment.
Staff recommends the first option: it provides the City maximum flexibility and expedites the designation of property as critical infrastructure.
New Ordinance – Abatement Process
Minimum notice period before abatement:
Current practice is posting at least 72 hours prior on City property.
New ordinance can provide for a different period of time.
City of Sacramento’s ordinance provides for 24 hours (but in practice provides much more).
New ordinance could include a noticing exception where a violation poses an imminent threat to public health or safety.
New Ordinance – Penalties
Violation of the ordinance subjects an individual to
criminal, civil, and/or administrative actions. A civil penalty range can be set by the ordinance, which
accrues on each day a violation persists.
City staff consulted with City of Sacramento staff
regarding how they enforce their ordinance. In practice, civil penalties and/or criminal sanctions only apply
where an individual actually obstructs abatement
activity. No penalties are sought merely for having an
encampment abated.
New Ordinance – Limitations
While the ordinance provides the City a useful tool to abate encampments in sensitive areas, there are
limitations.
The ordinance does not:
Create new positions;
Provide additional funding for abatement; or
Prevent new encampments from being establish on
previously abated property.
Despite the limitations, City of Sacramento has had
great success with their ordinance, which was adopted
in 2020.
Direction and
Recommendation