Response to: City Council Work Session – Police Community Survey

by Rick Bowers
August 26, 2021

A PDF version of this article is available here.

Geoff Spalding, Chief of Police
City of Astoria
1095 Duane St.
Astoria, OR 97103

RE: City Council Work Session — Police Community Survey

Dear Chief Spalding:

I enjoyed your Police Community Survey presentation at the recent City Council work session. I especially enjoyed the general agreement that the lack of safety, related to homelessness, perceived by the housed is just that — perception more than reality. And speaking of perceptions, I have a somewhat different perspective of the Boise and Grants Pass court cases I would like to share… not so much mine… primarily a Federal Magistrate Judge as expressed in his opinion. In and of itself, these different perceptions may seem like a small matter, however, to me it’s emblematic of Astoria’s (and in many jurisdictions, society’s) slow progress to actually solving homelessness. I’ll explain what I mean in the second half of this letter.

Different Perspectives

During the meeting you said “… Boise was criminalizing homelessness because certain individuals were being incarcerated for the involuntary act of sleeping and so they’re [the court is] saying you can’t criminalize it. When I say incarcerated I mean in some cases they’re taken to jail and then released [emphasis added].”[1] And then in the Grant’s Pass case “they took it a step further and said that any fine of a homeless individual can be determined as again cruel and unusual punishment…. you can’t criminalize the involuntary act of sleeping and therefore if you don’t have a shelter or somewhere they can go then you cannot take enforcement action.”

However, United States Magistrate Judge Mark D. Clarke seems to have a different perspective when he opined “The Eighth Amendment prohibits cruel and unusual punishment whether the punishment is designated as civil or criminal.” The Federal Judge explained “Violations of the Boise ordinances analyzed in Martin were misdemeanors, 920 F.3d at 603, so the Ninth Circuit at times used the word ‘criminal’ in its analysis. However, a careful reading of Martin [v. City of Boise] shows that this language was not a limitation on when the Eighth Amendment’s prohibition on cruel and unusual punishment applies [emphasis added].”[2] From my non-attorney’s understanding, this Federal judge, writing in 2020, did not say he was taking Boise “a step further,” he said a careful reading of the U.S. Court of Appeals for the Ninth Circuit ruling in the Boise case already made this point back in 2018.

Indeed, this judicial reasoning goes back to another Ninth Circuit Court of Appeals case, Jones v. City of Los Angeles, when in 2006 Judge Wardlaw wrote for the majority, “The Eighth Amendment prohibits the City from punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles.”[3] He didn’t say criminalizing; he said punishing. In 2015 the United States Department of Justice filed a Statement of Interest of the United States specifically requesting the judicial reasoning from the 2006 Jones v. City of Los Angeles case be used in the Boise case.

So what’s the big deal?

The short answer… I’m simply tired of jurisdictions trying to use policing (and the courts) to solve homelessness! I’m guessing we are in general agreement on this! Homelessness is not “up front” a police issue… homelessness is a mental health issue, a housing availability/pricing (land-use planning) issue, an educational issue (a long soap-box story)…. Homelessness is a symptom of many societal issues. Our country has a long history of trying to solve homelessness through policing: e.g.  vagrancy laws, loitering laws, panhandling laws, sit-lie laws, exclusion zones…. One by one the majority of these overly broad laws have been struck down for various constitutional issues. But in this multiple decades’ long process we’re avoiding substantively addressing the real societal issues. Instead, we just seem to slowly march down the street of policing thinking we’ll eventually find our way out of homelessness. The Boise (and subsequent Grants Pass) decision is just one more example of this. The Ninth Circuit issued its opinion in 2018. The particular case was on the criminal side of the code. So apparently the Grants Pass and Astoria city attorneys said in effect, “Don’t worry, let’s make it a civil infraction!” Like that really solves anything! Meanwhile time marches on and in 2020 a Federal District Court judge says “No, read the Boise decision carefully….” He didn’t say “I’m taking Boise a step further and applying it to civil enforcement.” He said it was already in the Boise decision. How much time and effort is going into the appeal of the Grants Pass case that could be used to address the underlying systemic issues. It drives me nuts.

In conclusion

I would enjoy the Grants Pass decision be phrased something like “The federal judge ruled the Martin v. City of Boise 2018 opinion, with a careful reading, already applied to both the civil as well as the criminal side of the law.”

And furthermore…

Has anyone noticed that the leadership of the State of Oregon seems to be tiring of the limited action by cities / counties toward actually solving homelessness?  I’m reading the tea leaves in this way because Oregon is one of the top states in the absolute number of homeless and the state is enacting laws that trump local ordinances on homelessness / housing issues.

• 2017’s SB 1051 required ADU development in certain areas.
• 2019’s HB 2001 limited exclusive single-family zoning in many cities; extended ADU provisions.
• 2020’s HB 2006 trumps local zoning for shelters.
• 2020’s HB 3115 sitting, lying, sleeping ordinances must be “objectively reasonable.”[4]
• 2020’s HB 3124 extends written notice for removal of campsites.

On the other hand, perhaps the intent of local jurisdictions is to let the state handle this NIMBY issue….

Sincerely,

Rick Bowers
PO Box 1406, 357 Commercial Street
Astoria, OR 97103
(916) 622-4501
bowers@speak-peace.com

[1] Slightly edited for clarity… see https://youtu.be/do2ALQmiSC8?t=1450.

[2] Blake v. City of Grants Pass, Opinion and Order — see https://friendsoftheunsheltered.org/wp-content/uploads/2020-07-22-Blake-v.-City-of-Grants-Pass-Summary-Judgment.pdf.

[3] See https://friendsoftheunsheltered.org/wp-content/uploads/Jones-v.-City-of-Los-Angeles-444-F.pdf.

[4] I believe it’s general knowledge that HB 3115 was put in place as a precautionary measure in case (1) the Boise decision is overturned — although the U.S. Supreme Court denied review in 2019 —  or (2) the Grants Pass case is overturned on appeal.

Response to Councilor Herman

The following is in response to an email conversation I was having with Councilor Herman regarding what to me appears to be slow movement on updating Astoria’s Comprehensive Plan to address very affordable housing. I realize there can be different approaches. However, I wanted to express my frustration with what occurs to me as a “business as usual” approach.

by Rick Bowers
August 25, 2021

A PDF version of this article is available here.

Joan Herman, City Councilor
City of Astoria
1095 Duane St.
Astoria, OR 97103

Thanks for sharing your perspective in your prior email to me. I appreciate Meg’s offer to involve me in the process. However, I want to share that at this point I’m extremely frustrated at the lack of visible action and frankly I don’t have faith in the process that my participation would amount to any significant changes. And this is NOT about Meg! I hear great things about Meg. Read on to see my concern.

Addressing homelessness is a very emotional subject for me and I wanted to pause before sharing my angst with what occurs to me as a snail’s pace to actually productively solve homelessness in our community. Part of my angst is that many communities across the nation have actually driven homelessness to functional zero. Best practices exist. How does this relate to my frustration about Astoria’s process of updating the Comprehensive Plan? I’ll explain but first let me say one of the reasons Nelle & I moved to Astoria is we really appreciate the community; it’s good people led by good people. Even though Clatsop County has the highest rate of homelessness in the state, and Oregon is in the top handful of states with the volume of the unsheltered, I still think we’re good people led by good people. However, I still have great angst around the issue of homelessness….

• Clatsop County Point in Time Homeless Counts:
  • 2017: 680
  • 2018: 790
  • 2019: 894
  • 2020: 1,000+.[1]
• Mike Cook spent two and one half years sleeping in a downtown alcove (with the business owner’s permission) in a wheelchair. Nelle & I invited him into our home where he was able to finally get disability (with the help of a lawyer) and housing (in Portland). He reported little to no support from local social service agencies. I suspect the service providers labeled him as “service resistant” or “service intolerant” when in fact he needed respect and safe shelter. I am tired of hearing people blame the homeless.
• In 2018 we (Astoria) did a sweep of the camps in the Astoria forest promising to hold possessions for 30 days as required by law. Nothing was saved.[2] See the impact here.[3] We still don’t have a plan to prevent this from happening again even though it is the law!
• Clatsop County’s ten-year plan to end homelessness was published in 2012.[4] We have one year left, little if anything in the plan was put into action, counts have gone up, and people are suffering. I am tired of creating plans and not acting on them!
• We continue to turn to policing as the solution even though police departments rightfully say they don’t have the tools to solve the problem.[5] There is no legal basis for getting rid of the homeless.
• This past winter we were approached by the Clatsop County Public Health Department about an individual they were temporarily housing in a motel. In a day or two they thought the woman would be homeless (no more funding) and due to her health condition would likely not survive the winter. Public Health had tried finding support at the area’s social service agencies — without luck. She has been living in our home ever since (and after hiring a lawyer will likely start receiving disability in November). When she does start receiving assistance she still won’t have enough money to move into market rate housing. Vouchers are a two-year wait. What does it take for the city to realize that Astoria needs more truly affordable housing? I am tired of waiting for the city council to address zoning issues for all income levels, utilize vacant buildings, contribute city owned property for emergency housing and I will not accept the often repeated lie that “we have no land.”[6] There is simply no will for using what Astoria has to house the homeless.
• August 1, 2019 Nelle Moffett arranged a conference call with a representative from Built for Zero[7] (written up in the NY Times and elsewhere for successfully solving homelessness), Geoff Spalding, Brett Estes, Monica Steele (acting County Manager), Leslie Ford (Columbia Pacific CCO), and the two of us. No one from the city or county pursued working with these experts. The city instead seems to continue to rely on agencies that have not solved homelessness.
• September 7, 2019 Nelle Moffett sent Geoff Spalding a pointer to an article, Creating Systems That Work.[8] Based on this Geoff asked Nelle to create a job description that fulfilled the promise of the article. This apparently stimulated the HOST conversation on the County-wide Coordinator position. A HOST subcommittee was formed October 1, 2019 without including Nelle. The December 5, 2019 recommendation by the HOST subcommittee proposed a position but stripped it of power by placing it in CCA in order to save money (benefits for a county employee are more expensive than benefits in a nonprofit). This is contrary to best practices. April 1, 2021 (almost two years later), two liaisons started work. One resigned after a week on the job. The authors of the book, How Ten Global Cities Take on Homelessness: Innovations that Work, say “By far the most frequently requested strategic advice has to do with overcoming street homelessness. While the municipal leaders, nonprofits, advocates, communities, and resources involved are as varied as the people who are on the streets, the challenge is the same: persuading outreach, shelter, behavioral health services, and the housing providers to coordinate their services in a way that reaches each person on the street, assesses their individual needs, and offers them safe shelter and stable housing, that works for them [emphasis added].” Nelle was recommending situating the liaison in a location with “the power of convening and persuasion” (e.g. Gresham, OR). That best practice didn’t happen… to save money! I am tired of repeatedly seeing such lack of compassion and responsibility for solving homelessness. How much does it cost to keep people unsheltered in terms of human lives?
• Nelle and I don’t normally try to assist people finding local resources (except for pointing them to either CCA or CBH’s RA-RA Team). We are not case managers. However, we have accompanied four people as they access the social services “system.” None received the services they needed (primarily a roof over their head). In one situation we went to eleven doors (via referrals) in a big circle back to the beginning.[9] The last I knew this individual was living in the woods near Home Depot. I am frustrated by the perception that we have all these services and the homeless don’t use them when the truth is Clatsop County does NOT have services that really address the needs of the homeless. No one in Clatsop County is responsible for ending homelessness. No one!
• In July of 2015 The Astoria Affordable Housing Study was published.[10] How many of the recommendations were followed? In 2018 Astoria participated in a $100,000 county-wide study. One city official expressed to me “This is going to tell us what we already know.” The resulting study was published in 2019. Nicole Bales, The Astorian, wrote a June 16, 2021 article titled “County affordable housing strategy takes shape: Little progress since housing study [emphasis added].”[11] Astoria’s City Council Goals for 2019-21 include “Support efforts to increase the housing supply… using the County Housing Study as a guide.”[12] The 2021-23 goals include “Support efforts to increase the housing supply using the County Housing Study as a guide.” In February of 2021 the Astoria City Council and the Astoria Planning Commission held a joint work session discussing the recommendations from the 2019 Clatsop County housing study, based on statements like “the council will be providing some direction so that the planning commission’s efforts will be very focused and targeted in an effective manner.” Also, regarding the recommendation from the Housing Study “the first strategy is to adopt a supportive and inclusive comprehensive plan and just right now what we’re planning on doing is to have the city staff address that through part of our code amendment.” In reviewing the Planning Commission and City Council agendas after the work session I see nothing on Development Code updates. Really?? So, what the city council put in its goals are just pretense?
• In April of 2019 the City Council held a work session on homelessness. One of the councilors said in closing remarks that this session was really about the “stick” approach (to addressing homelessness) and in the future would enjoy discussing “carrot” approaches. Did I miss the carrot work session where the city addresses how to help the homeless?
• Astoria’s Homelessness Solutions Task force has been meeting since late 2017. Then Mayor LaMear wanted three things “we should do this year.” In May of 2018 she encouraged the group to turn toward solutions. No recommendations were forthcoming. Oh maybe another year will produce solutions.
• The City Council goals over the last several years have anticipated recommendations from HOST. But as Mayor Jones, co-leader of HOST, has said “…the purpose of the HOST is… really it’s a coordination and communication body.” [13] The agenda of HOST doesn’t even mention solutions in the title any more: “Homelessness Task Force – Agenda.”[14] Why rely on a group that isn’t even focused on solutions?
  • City Council 2021-23 Goal: “Support work and recommendations of the Homelessness Solutions Taskforce (HOST) as well as other community efforts to address homelessness. Explore partnerships for housing first programs and a County-wide drop in center.”
  • City Council 2019-2021 Goal: “Support work and recommendations of the Homelessness Solutions Taskforce (HOST) as well as other community efforts to address homelessness.”
  • City Council 2018-2019 Goal: “Support work and recommendations of the homelessness task force.”
  • March 4, 2021 HOST meeting — Mayor Jones [automated transcript lightly edited for clarity]: “[HOST] was founded by Mayor LeMear during her tenure about three years ago. Chief Spalding has been the chair of it. Since then the purpose of the HOST is… really it’s a coordination and communication body because as you can see by the faces on your screen there’s so many different organizations and individuals and groups that have some that are dealing with some aspect of issues involving homelessness. We thought it would be beneficial to meet periodically share information share ideas hopefully occasionally eliminate some redundancy and maybe take advantage of some opportunities that someone might not have known about before. Basically this many different organizations involved in some aspect of a complex issue it’s probably a good idea to get together periodically and share information and even between meetings we can do so by email as well. So that’s the premise of this group.”¹² The group is about sharing, not recommendations or solutions. I am so frustrated that this group still has not come up with solutions and, even though best practice calls for integration of social services to address individuals’ needs one person at a time, HOST has clearly not created an integrated approach.
  • March 4, 2021 HOST meeting — Chief Spalding [automated transcript lightly edited for clarity]: “As the mayor mentioned we’ve been meeting since November of 2017 and one of the very first things we did at our very first meeting was come up with a name for our group. A lot of names were tossed around but the one that stuck was the homeless solutions task force and to me the one key word in that title is solutions. That was called out by one of the members at the time who said you know we’re here to look for solutions and not just to talk about things. I will say that there has been some criticism about what we’ve accomplished the last three years and I think a lot of the criticism is justified. This is a very difficult problem to solve. There are lots of different ideas floating around in terms of what we should do and they’re on both sides of the spectrum in terms of how we address the topic of homelessness. So it is challenging. We are going to be talking about one of our significant accomplishments today. What I’ve said in the past and I continue to believe is the relationships that we developed and formed have been at least to me have been extremely invaluable and have gone a long way towards addressing some of these concerns….”[15]  But these relationships have not focused on solving homelessness.
  • The one recommendation from HOST was the county-wide homelessness liaison position that took one year and seven months for the liaison to be in action and failed to meet the criteria for an effective position. I am so frustrated at the city continually ignoring the information provided to them about what has been proven to solve homelessness in many cities across the country.
• In reviewing HOST minutes and meeting recordings I find five subcommittees have been formed.
  • The Clean Slate subcommittee was formed December 4, 2018. From HOST minutes the last Clean Slate update was October 1, 2019. The subcommittee has been active for two years and seven months. There is no plan or proposal.
  • The Transitional Housing subcommittee was formed December 5, 2019. From HOST minutes the last update was May 6, 2021. The subcommittee has been active for one year and seven months. Their work has been on hold pending finding a fiscal sponsor for almost a year.
  • The Countywide Liaison subcommittee was formed October 1, 2019. From HOST minutes the last update was July 8, 2021 (where they announced hiring a second person — the first person started April 1^st). The subcommittee has been active for one year and nine months adding two positions which do not add any additional services or solutions above the services that already existed and did not solve homelessness.
  • The Journey Home subcommittee was formed January 30, 2019. From HOST minutes the last update was July 25, 2019. The subcommittee has been active for two years and five months. There is no plan or proposal.
  • The Employment subcommittee was formed October January 30, 2019. From HOST minutes the last update was April 18, 2019. The subcommittee has been active for two years and five months. There is no plan or proposal.
• In 2017 then Community Development Director Kevin Cronin said in the staff report regarding the Temporary Conditional Use Permit for the Astoria Warming Center, “Homeless are residents too just like homeowners and renters, but do not currently have permanent shelter. The Comprehensive Plan does not articulate a hierarchy of housing status. For example, homeowners are not elevated above renters or homeless for that matter and should be evaluated equally. Conversely, the compatibility goals [from the Comprehensive Plan listed previously in his report] are applicable to this proposal and short term impacts and a long term location need to be addressed. In total, when reviewing the Housing policies cumulatively, it is decidedly in favor of protecting the needs of existing neighbors over non-residential uses and incompatible uses [emphasis added].”[16] Temporary shelter for those without homes is relegated to the status of “incompatible use.” One out of forty Clatsop County residents is homeless and therefore are relegated to the “incompatible use” category. The State has now stepped in to say that shelters can be located in ANY zone. I guess the State is tired of waiting also!
• In July of 2019, two years ago, I wrote a letter requesting, as other cities in Oregon have done, an update to the Comprehensive Plan.[17] To date, there has been no action towards this goal.
• In August of 2020, one year ago, the Astoria Planning Commission tabled further work on proposed Development Code updates regarding emergency shelters. President Moore said (automated transcript lightly edited), “I think that we should at some point take a look at the comprehensive plan and social services and how our comprehensive plan was lacking. That was part of the instigator of this amendment request in the beginning. We could speak with our city councilors and try to drive them at some point [into] opening the comprehensive plan for services like that. In the meantime I think this amendment request… well we’ve stood on it for a long time the staff has put a great deal of effort into it… I think is not necessary at this point so I am going to make a motion that the Astoria Planning Commission table discussions of amendment A19-06….”[18] We have known since the Astoria Warming Center’s Temporary CUP hearing in 2017, and restated in 2020, the Comprehensive Plan is lacking.
• In March 2020 I wrote a letter to County Commissioners and Astoria City Councilors pointing out that no one in Clatsop County is responsible for ending homelessness.[19] How do we expect to tackle this, as other cities have successfully done, if no one is in charge? I’m frustrated and tired of waiting.

Given:

• Clatsop County has had a plan to solve homelessness since 2012; and
• we have had multiple Housing Studies; and
• since at least 2017 we have known an update to the Comprehensive Plan is needed; and
• the 2019 Clatsop County Housing Study recommended Comprehensive Plan updates; and
• in August of 2020 the Astoria Planning Commission tabled their work on shelters due to no guidance from the Comprehensive Plan; and
• other Oregon cities have updated their Comprehensive Plans regarding the homeless… long ago….

“Business as usual” has not and will not get the job done. There are many cities which have been successful in solving homelessness. We have shared this information repeatedly and yet Astoria is still saying “it’s so complex.” It is NOT complex. One out of forty Clatsop County residents is homeless.  City leaders, both elected and staff, are responsible for systemic changes to address this crisis and have yet to make any progress towards serving our residents who are homeless. I have lost trust. Somehow the city is able to find grant funding for $844,843 to put lights on the Riverwalk but is unable to update a comprehensive plan since 2017 that will address housing for all income levels of residents.[20] I am frustrated and tired of waiting patiently for city officials to take responsibility.

Sincerely,

Rick Bowers
PO Box 1406
357 Commercial Street
Astoria, OR 97103
(916) 622-4501
bowers@speak-peace.com

[1] See https://friendsoftheunsheltered.org/research-pit.

[2] See https://www.dailyastorian.com/news/local/astoria-police-say-homeless-camp-cleanup-a-success/article_0c033aae-f929-11e8-89f4-1775498d29e3.html.

[3] See https://youtu.be/nR7It7sfNDQ?t=1577.

[4] See https://friendsoftheunsheltered.org/plans/.

[5] See https://friendsoftheunsheltered.org/2021/06/29/il-legalization/.

[6] We recently visited a tiny home village in Bellingham, WA that is housed on one quarter acre of city controlled land (that had been a gravel parking lot). They have used this land for two years, currently house 22 people, and the city is so impressed they renewed the lease for three additional years. The unused “concrete park” (where the city removed the picnic tables in order to “shoo away” the homeless) next to the American Legion is 0.22 acres. We have land. We don’t have the will.

[7] See https://friendsoftheunsheltered.org/built-for-zero/.

[8] See https://friendsoftheunsheltered.org/proven/.

[9] See https://friendsoftheunsheltered.org/2020/03/04/who-is-responsible/.

[10] See https://friendsoftheunsheltered.org/studies/.

[11] See https://www.dailyastorian.com/news/local/county-affordable-housing-strategy-takes-shape/article_b95eac78-cd4e-11eb-b146-83bf1cef4c19.html.

[12] See https://www.astoria.or.us/Assets/dept_1/pm/pdf/2019-21%20final%20council%20goals.pdf.

[13] See https://youtu.be/KXX9S9FFn9I?t=194.

[14] See https://friendsoftheunsheltered.org/wp-content/uploads/2021-07-08-HTF-Agenda-7-8-2021.pdf.

[15] See https://youtu.be/KXX9S9FFn9I?t=633.

[16] See https://www.astoria.or.us/assets/dept_3/agendas/72517_APC_packet.pdf page 51 (of the PDF).

[17] See https://friendsoftheunsheltered.org/2019/07/15/astoria-city-council-re-comprehensive-plan/.

[18] See the 8/25/2020 Astoria Planning Commission meeting at https://friendsoftheunsheltered.org/government/.

[19] See https://friendsoftheunsheltered.org/2020/03/04/who-is-responsible/.

[20] Statewide Planning Goal 10 states “Plans should be developed in a manner that insures the provision of

appropriate types and amounts of land within urban growth boundaries. Such land should be necessary and suitable for housing that meets the housing needs of households of all income levels.” See https://www.oregon.gov/lcd/OP/Pages/Goal-10.aspx. Astoria’s Comprehensive Plan, CP.027 says “The City of Astoria Comprehensive Plan Background Reports are hereby adopted as the factual basis of the Comprehensive Plan as required by ORS Chapter 197.” Oregon Statewide Planning 10 is in the list. We seem to be ignoring the “housing needs of households of all income levels.”

Letter (by Rick Bowers): Systems Approach to Solving Homelessness – August 6, 2021

Dear Commissioners, Mayors, and Councilors:

I’ve heard it said that homelessness is such a difficult complex problem to solve. That sentiment can be used to justify throwing up our collective hands in frustration… or it can be a rallying cry to empower us to action. I vote for empowerment. My wife, Nelle Moffett, and I have spent the last few years collecting, sorting, weeding, and archiving information from across the United States (and beyond) on the topic of solutions to homelessness… strategies that work, strategies that don’t work, and strategies still being tested. To me it just makes sense to learn from cities and counties that have actually driven homelessness to functional zero. And many jurisdictions have accomplished that goal. How? In a nutshell, success is built on a framework called a systems approach.

Read the entire letter here. It was also published as a Letter to the Editor on August 10^th in the Seaside Signal here.

The [il-]Legalization of Homelessness

by Rick Bowers
June 29, 2021

A PDF version of this article is available The il-Legalization of Homelessness.

Let me begin by presenting my “get-out-of-jail-free” card. I am not an attorney. However, somehow I pulled off getting an “A” in my one obligatory business law class by writing common sense answers to test questions. Later in life (as a mediator in the Los Angeles and Ventura County court systems) I learned common sense doesn’t necessarily live in the same time zone as the law…. Those are my credentials. My advice? Take everything I say here with a grain of salt.

The Big Picture (a.k.a. a brief history of the “stick” approach to end homelessness)

I think my overall point in writing this section is to vividly show that local governments have tried over the years to end homelessness by creating “anti-homeless[ness]” laws. This hasn’t worked for two reasons. First, the laws/ordinances are mostly stupid and never would work anyway (unless the goal is to spend lots of money and house all the homeless in jails). And two, eventually the Courts let the local government jurisdictions know the laws are unconstitutional. Here are some examples.

Vagrancy Laws

Unfortunately, when our country was founded we borrowed, from across the Atlantic, the idea of punishing vagrancy.[1] Whoops. It took a little over a couple of hundred years to decide phrases such as “no visible means of support” were a little broad.

Well, that didn’t work… let’s make hanging out illegal!

Loitering

“Loitering laws, which make it an offense for an individual to be in a public place for no apparent reason, have been attacked on the grounds of both vagueness and overbreadth, and have generally been determined to be unconstitutional.”[3] But that doesn’t keep jurisdictions from trying….

Not to worry… let’s make panhandling illegal!

Panhandling

“Panhandling is a form of solicitation or begging derived from the impression created by someone holding out his hand to beg or using a container to collect money.”[5] The following is therefore clearly panhandling….

Ok, we’ll make being aggressive illegal… that will fix it! Aggressive solicitation is “a term defined broadly to include behavior like asking for a donation twice, in pairs, or after sunset – on the basis that it can make passersby feel physically threatened or vulnerable to mugging.”[7] So no Bell Ringers after sunset….

What’s the current state of affairs? “No panhandling bans have made it to the Supreme Court. But in recent years, all lower courts’ ruling on this issue have found that laws imposing restrictions on sidewalk and roadside solicitation are unconstitutional.”7 Problematic behaviors can be directly addressed (e.g. trespassing, assault, blocking a sidewalk) but panhandling, a form of asking for a donation, is protected speech.

Ok, jurisdictions have been told they cannot prohibit having no visible means of support, cannot prohibit “hanging out,” and cannot prohibit asking for money… how can we get rid of these rascals?[9] I know! Let’s make sure they can’t sit or lie down!

Sit-Lie Ordinances

As with many homelessness related ordinances, there can be legitimacy in the intention (e.g. keeping sidewalks free from obstruction for mobility-impaired persons). As the saying goes, the devil is in the details.

These sit-lie ordinances are widespread.

As will be shown below, the State of Oregon’s current leadership is trying to make sure these local ordinances are “objectively reasonable.”

Exclusion Zones

This approach to making cities “safe” is by keeping out the consistent trouble-makers. For example by making repeat offenders of local ordinances stay out of downtown… or parks. And again, the devil is in the details. For example, it’s common for the social service agencies to be in an exclusion zone (so an exception is made for traveling to/from a support agency). Ditto for workplaces. Ditto for shelters. Police end up spending significant time trying to determine whether an individual is excluded or legitimately in a zone.

So if the pesky Oregon Law Center and the American Civil Liberties Union keep representing clients and therefore keep taking away our tools (that are unconstitutional), what’s a city to do?

“YOU Are Not Wanted” Signage

These come in different forms… sometimes called hostile architecture.[17] Creative ideas include slanted public benches, intentionally rocky open space, fencing, removing benches….

The City of Astoria removed the bench in front of the library.

The City of Astoria removed the picnic tables in Heritage Square “Concrete Park” (old Safeway). Heritage Square was given park status per city code 5.926 (which means park related codes like no-smoking apply). It’s also a hangout location for the unsheltered.

Martin v. City of Boise

This is a landmark case that finally says “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 [emphasis added].”[19]

Ok… we can’t criminalize being indigent, let’s fine ‘em! That’ll fix it! Like it really makes sense to impose financial penalties to solve being indigent….

Blake v. City of Grants Pass

This is a case that, still winding its way through the courts, added “no fines” to the “cannot criminalize” Boise decision. More accurately, this judge sees “punishment” (including fines) already existing in the Boise decision. The Summary Judgment was issued July 22, 2020 by a Federal District Court and has been appealed.[21]

It’s important to remember that the Court did not say limitations on camping cannot be imposed; jurisdictions are free to make reasonable no-camping ordinances.

It’s also important to remember the potential cost to cities for this litigation. In the Grants Pass case, “Plaintiffs are awarded the amount of $300,000, for their costs and attorney fees.”[22] This is of course in addition to the cost and attorney fees incurred in its defense.

The Most Recent Laws Impacting Homelessness

Hopefully I’ve clearly made the point that courts are over many years one-by-one finding laws unconstitutional that in one way or another attempt to address homelessness by restricting rights. That certainly doesn’t mean local jurisdictions won’t continue enacting ordinances that in my humble opinion are unconstitutional (e.g. Astoria’s Camping 5.900 – 5.925 updated October 15, 2018).[25] It does however mean these ordinances have the potential to be used as “clubs” against people who are homeless until courts find them unconstitutional.

The good news…  some State of Oregon elected leaders are encouraging us to actually solve the problems of homelessness with what might be called a “hand up” approach instead of continuing to use fines and jails. The first two state interventions are meant to increase the housing stock (including affordable housing).

Accessory Dwelling Units

In an apparent attempt to increase housing options in Oregon, HB 2001 from the 2019 Oregon Legislative session, was signed into law and became effective on August 8, 2019.[26] Key features of the legislation include:

• “A city with a population greater than 2,500 or a county with a population greater than 15,000 shall allow in areas within the urban growth boundary that are zoned for detached single-family dwellings the development of at least one accessory dwelling unit for each detached single-family dwelling, subject to reasonable local regulations relating to siting and design [emphasis added].”
• “’Reasonable local regulations [see above] relating to siting and design’ does not include owner-occupancy requirements of either the primary or accessory structure or requirements to construct additional off-street parking [emphasis added].”

When HB 2001 was passed I heard a city official say words to the effect of “I wish Salem would quit telling us how to run our city. We know better.”

Single Family Dwelling Zones

I want to make two interconnected points. First, housing prices are related to the rate of homelessness.

My second point is single-family homes, with a larger square footage and land footprint than multi-family homes, cost more.

I’m guessing rents are analogous; apartments are less expensive to rent than single-family homes. I think it’s pretty easy to argue that encouraging the development of multi-family homes will encourage the creation of affordable homes. That’s exactly the direction the State of Oregon and other jurisdictions[32] are headed (but NOT Clatsop County cities).

Oregon State Legislature — 81^st Regular Session — 2021

There have been several bills related to homelessness put forth in this legislative session. Four have been enacted — signed by Governor Brown. My general takeaway — the Oregon legislature is tiring of the state being a national leader in homelessness[34] and tiring of the general inaction in local jurisdictions. By enacting these bills the legislature is encouraging further action by cities and counties.

HB 2006 — Emergency Shelter Siting, “Camping” in Parking Lots, Grants

From the bill’s summary: “Requires local governments to allow siting of qualifying emergency shelters by qualifying entities notwithstanding land use laws and regulations. Sunsets requirement July 1, 2022.”[35] My focus here is the shelter aspect of the bill, however, there are provisions such as “Any political subdivision may allow any public or private entity to allow overnight camping by homeless individuals living in vehicles on the property of the entity [emphasis added].” The bill was signed into law and became effect May 12, 2021.

From my perspective, this is an example of the State overriding NIMBY objections to shelters as well as encouraging local jurisdictions to update zoning laws. Clatsop County has no year-round “HUD qualifying” low-barrier shelters and we have the highest rate of homelessness in the state. At least in Astoria, siting of shelters is not considered in the Development Code and there is virtually no relevant guidance (in support of shelters) from the Comprehensive Plan.

My summary / take-away is the Oregon legislature has taken a “shot across the bow” for local jurisdictions to get in action to provide incentives and code amendments for all levels of housing, including shelters.

HB 3115 — Local Sitting, Lying, Sleeping Ordinances Must be Objectively Reasonable

While HB2006 seeks to increase the number of shelter beds, this bill seeks to avoid further punishment of those who are unable to “get a traditional roof” over their heads. For relevant background information see Sit-Lie Ordinances, Martin v. City of Boise, and Blake v. City of Grants Pass. The bill’s summary includes “Provides that local law regulating sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to public must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness.”[38]

There are a few things that stand out in this bill. First, it has support from the League of Oregon Cities. In choosing between “carrot and stick” solutions to solving homelessness, historically cities seem to actively support “stick” approaches. However, not in this case.

And homeless advocates support the bill.

Second… the less hopeful side of me recognizes the bill requires cities to be “objectively reasonable” in local ordinances. I suspect objectively reasonable in Grants Pass is drastically different than Gresham.

Finally, I appreciate the affirmative defense aspect of the bill. According to the bill’s summary, “Creates affirmative defense to charge of violating such local law that law is not objectively reasonable. Creates cause of action for person experiencing homelessness to challenge objective reasonableness of such local law. Authorizes court to award attorney fees to prevailing plaintiff in such suit in certain circumstances.”³⁸

The bill was signed into law on June 23, 2021.[42]

HB 3124 — Increases Posted Notice “No Camping” Time

According to the legislative summary “Increases time that written notice must be posted before removal of homeless individuals from established camping site…. Requires written notice to state how individuals may claim personal property removed from camping site. Requires that unclaimed personal property be stored in orderly fashion…. Provides that local law that is more specific or provides greater protections to homeless individuals subject to removal from established camping site preempts contrary provisions of section….”[43]

The bill was signed into law June 23, 2021.

HB 3026 — Waive Fee for Identification Cards for Homeless

According to the legislative summary “Directs Department of Transportation to waive fee for issuing, renewing or replacing identification card if person who is issued card is experiencing homelessness. Becomes operative January 1, 2022.” [44]

The bill was signed into law June 11, 2021.

Unpassed Legislation

The 2021 Legislative Session was scheduled from January 19^th to June 27^th. Two bills relating to homelessness were winding their way through the process when the session ended (so were not passed). HB 2544 – Authorizes… two-year grants to organizations that provide services to unaccompanied homeless… and HB 3004 – …additional weights [i.e. homeless students]… to distribute State School Fund moneys.

Conclusion

My overall “take-away” with recent State legislation is local jurisdictions would do well to aggressively and proactively address housing shortages (including shelters, transitional, and affordable) for two reasons. First, it’s the right thing to do. And second, if we do not take action now, the State will take action — in ways we may not enjoy. For example, HB 2006, signed into law during this legislative season, “trumps” local zoning for shelters. If we already had shelters in place (supported by proactive Comprehensive Plans and Development Codes) we would have adequate shelters sited where we prefer.

[1] See O’Brassill-Kulfan, K. (2019). Vagrants and vagabonds: Poverty and mobility in the early American republic.

[2] See https://supreme.justia.com/cases/federal/us/405/156/#156.

[3] See https://www.mtsu.edu/first-amendment/article/1213/loitering-laws

[4] See https://law.justia.com/cases/oregon/court-of-appeals/1972/495-p-2d-778-2.html

[5] See https://www.mtsu.edu/first-amendment/article/1215/panhandling-laws

[6] Photograph by Ben Schuman — usage rights — Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0). Downloaded from https://www.flickr.com/photos/schuminweb/10163953713.

[7] See https://theconversation.com/most-panhandling-laws-are-unconstitutional-since-theres-no-freedom-from-speech-92498.

[8] See Lauriello, A. D. (2016). Panhandling regulation after ‘Reed v. Town of Gilbert’. Columbia Law Review, 116(4), 1105-1142. Retrieved from https://columbialawreview.org/content/panhandling-regulation-after-reed-v-town-of-gilbert/.

[9] You think this is not the goal (getting the homeless out of sight)? Watch this video: https://youtu.be/nR7It7sfNDQ?t=353. “Cash” — the gentleman in the video — complies with all of the requests. I’m left with the overall sense that Cash’s behavior is not the problem (from the city’s perspective); Cash himself is the problem; he’s not one of the “normal people” referenced in the video who are allowed to use the park.

[10] See https://www.aclu-or.org/en/portlands-2006-sitlie-ordinance-process-abandoned-11th-hour

[11] See https://www.portlandoregon.gov/toolkit/article/563496 and https://casetext.com/case/anderson-v-city-of-portland#summary

[12] “The claim has been investigated by Risk Management Services. The investigation indicates there is risk the City may be found liable. Therefore, in order to avoid the risk of an adverse jury award, we feel it is prudent to compromise the lawsuit at this time.”See https://efiles.portlandoregon.gov/Record/5107559/.

[13] See https://efiles.portlandoregon.gov/Record/5568393/File/Document/

[14] See https://library.municode.com/fl/orlando/codes/code_of_ordinances?nodeId=TITIICICO_CH43MIOF_S43.88SILYSIDOCODIPR

[15] See https://www.aclu-or.org/en/legislation/portland-exclusion-zones.

[16] See https://www.astoria.or.us/Property_Watch_Program.aspx.

[17] See https://interestingengineering.com/15-examples-of-anti-homeless-hostile-architecture-that-you-probably-never-noticed-before.

[18] See https://www.wweek.com/news/city/2019/06/19/oregon-officials-deter-portland-homeless-campers-with-a-million-dollars-worth-of-boulders/.

[19] See https://www.lexisnexis.com/community/casebrief/p/casebrief-martin-v-city-of-boise.

[20] The Opinion is archived at https://friendsoftheunsheltered.org/legislation/#1607388201388-53d01a1e-bc67

[21] The Summary Judgment is archived at https://friendsoftheunsheltered.org/legislation/.

[22] See https://friendsoftheunsheltered.org/wp-content/uploads/2020-10-05-Blake-v.-City-of-Grants-Pass-Attorney-Fees.pdf. I’m assuming this award would be voided in the City prevails in its appeal.

[23] See https://friendsoftheunsheltered.org/2021/02/16/research-pit/ for the 2017-2019 sources of data.

[24] Vivian Matthews speaking at the Homelessness Forum #2, City of Seaside, May 13, 2021 (23 minutes, 16 seconds into the video). See https://youtu.be/8zerK2nMXpo?t=1396.

[25] See https://friendsoftheunsheltered.org/2018/10/15/camping-ordinance/.

[26] See https://olis.leg.state.or.us/liz/2019R1/Measures/Overview/HB2001.

[27] See https://youtu.be/LxqJZtb0gPM?t=1086.

[28] See https://youtu.be/LxqJZtb0gPM?t=1145.

[29] See https://youtu.be/LxqJZtb0gPM?t=1542.

[30] ECONorthwest (March 2019). Homelessness in Oregon: A review of trends, causes, and policy options.

[31] See https://www.fool.com/the-ascent/research/average-house-price-state/.

[32] Interesting Berkely, CA is eliminating single-family zoning because of it’s “racist legacy.” See https://sf.streetsblog.org/2021/02/24/berkeleys-move-towards-eliminating-single-family-zoning/.

[33] See https://olis.leg.state.or.us/liz/2019R1/Measures/Overview/HB2001.

[34] See https://www.security.org/resources/homeless-statistics/.

[35] See the Oregon State Legislature’s information on HB2006 at https://olis.oregonlegislature.gov/liz/2021R1/Measures/Overview/HB2006.

[36] See PDF page 51 in https://www.astoria.or.us/assets/dept_3/agendas/72517_APC_packet.pdf.

[37] See https://olis.oregonlegislature.gov/liz/2021R1/Downloads/PublicTestimonyDocument/25089.

[38] See https://olis.oregonlegislature.gov/liz/2021R1/Measures/Overview/HB3115.

[39] See https://olis.oregonlegislature.gov/liz/2021R1/Downloads/PublicTestimonyDocument/27877.

[40] See https://olis.oregonlegislature.gov/liz/2021R1/Downloads/PublicTestimonyDocument/28062.

[41] The People’s Law Dictionary by Gerald and Kathleen Hill Publisher Fine Communications. See https://dictionary.law.com/Default.aspx?selected=2363.

[42] See https://olis.oregonlegislature.gov/liz/2021R1/Measures/Overview/HB3115.

[43] See https://olis.oregonlegislature.gov/liz/2021R1/Measures/Overview/HB3124.

[44] See https://olis.oregonlegislature.gov/liz/2021R1/Measures/Overview/HB3026.

Letter (by Rick Bowers): What causes homelessness? – March 6, 2021

As I began to look deeper into the problem of homelessness, I asked myself the question: What causes homelessness?

Of course, I knew there would be many answers, because just like any population, the unsheltered population is diverse. I was left more confused after a consultation with Professor Google, so being a numbers cruncher, chose to collect some data for myself, and see what they had to say.

The short answer — rental prices have a huge impact on homelessness. Duh….

Read The Astoria letter to the editor here (may behind paywall).

Letter (by Rick Bowers): Journey of understanding – February 16, 2021

Several years ago, when my wife and I moved to Astoria, we knew winters could be a challenge. To force ourselves to get out of the house, we intentionally did not get internet, and instead opted for a daily outing to the library in order to “get connected.”

Guess who else hangs out at the library? The unsheltered, of course. Thus began my journey of understanding. The folks I met did not match the stereotypes I had imagined. I began to hear stories of struggles, frustrations, failures, successes and joys….

Read The Astoria letter to the editor here (may behind paywall).

March 3, 2020

A PDF version of this letter is available here.

Clatsop County Board of Commissions
800 Exchange St., Suite 410
Astoria, OR 97103

Astoria City Council
1095 Duane St.
Astoria, OR 97103

RE: Who is Responsible for Ending Homelessness?

Dear Commissioners, Mayor, and Councilors:

I was recently asked to be an advocate for a homeless person who bounces between Astoria and Long Beach. It was quite a learning experience! I do not have permission to share the details of the story but in a nutshell we started with a social service agency, door 1, and were referred to door 2 (another agency) where we were referred to door 3 who couldn’t help (which is implied in all of the following) so we went back to door 2 and from there to door 4 where we were referred to door 5 who referred us to door 6 who suggested door 7 who required us to go through door 8 and from there we took a form filled out by door 8 back to door 6 who said the form was not valid so referred us to door 1 (our starting point). I have left two voicemail messages at door 7 but have not received a return phone call in well over a week. I left one message at door 8 and just heard back after five days. Everyone has been very nice. They express appreciation that the homeless person has an advocate to help navigate the system. The homeless person is still on the street.

This has led me to the question, “Who is Responsible for Ending Homelessness in Clatsop County (or Astoria)?” The answer is, of course, no one.

We certainly have many compassionate social service agencies that are responsible for providing various types of support. For example:

• Clatsop Community Action: “Our Mission is to help people meet housing, food and other basic needs.”
• Northwest Oregon Housing Authority (NOHA): “The mission of NOHA is to ensure access to safe, affordable, decent housing for eligible residents of Columbia, Clatsop and Tillamook Counties and to break the poverty cycle by providing opportunity for self-sufficiency.”
• Astoria Warming Center Mission: “To provide a warm, safe place to sleep during winter months for people experiencing homelessness.”
• Helping Hands: “The Mission of Helping Hands is to provide a helping hand to a sustainable life through Resources, Recovery, and Reentry.”
• Astoria Rescue Mission: “The purpose of the Astoria Rescue Mission is to offer assistance, as made available, to those in need.”
• Clatsop Behavioral Healthcare: “For more than 55 years, Clatsop Behavioral Healthcare has been caring for the emotional well-being of our community.”
• NorthWest Senior and Disability Services: “We are a local intergovernmental agency serving seniors and adults with physical disabilities in five Oregon counties.”

My intention is not to point fingers at any of these wonderful agencies. They all provide valuable services. My intention is to point out that no one is responsible for ending homelessness. To me, having one individual responsible for ending homelessness, with support, is the key driver for a Countywide Homeless Services Liaison. There is a huge difference between convening groups (agencies) to build relationships and share service information — and ending homelessness for Jane, Bill, Fred,… and the other 891 homeless people identified in the 2019 Point in Time count.

“Aren’t there cross-agency groups already meeting?” Yes. For example, Astoria’s Homelessness Solutions Task Force (HOST) has been meeting since late 2017 and has built relationships and is evolving to where they might begin to provide recommendations. CHART, the Community Health Advocacy and Resource Team, has been meeting for ten years to “impact policy, systems, and environmental change to raise the overall health of Clatsop County residents.” In Line, a cross-agency gathering, has been meeting regularly for about twenty years. While extremely valuable, none of these groups are responsible for ending homelessness.

“Are there examples of success in other areas?” Yes. By now, many have heard about Gresham Oregon’s success with drastically reducing homelessness through compassionate support-in-action along with enforcement. The effort has been led by Kevin Dahlgren, Community Health Services Advisor. Kevin has the power to convene alongside the power to influence needed system changes  including development and/or city code.  He has been able to “find” housing where people believed no housing existed. Community Solutions Built for Zero Collaborative provides consulting to communities and counties across the country to drive chronic and/or veteran homelessness to functional zero. The key is an integrated data system used to track individuals between and among agencies. No more blind referrals; no more falling through the cracks. The March 3^rd Astorian editorial outlined several useful actions: a year-round homeless shelter (what we have been calling a drop-in resource center), transitional housing, land-use changes, and for enforcement, exclusion zones.

My major points can be summarized as (1) the current approach within our city and county has not and will not solve the problem and (2) proven solutions are available. It’s time for committed action.

Sincerely,

Rick Bowers
PO Box 1406
357 Commercial Street
Astoria, OR 97103
(916) 622-4501
bowers@speak-peace.com

cc:           Betsy Johnson, Senator
Tiffiny Mitchell, Representative
Don Bohn, County Manager
Brett Estes, City Manager

Memorandum

DATE: 1/3/2019 — whoops 1/3/2020!
TO: Friends of the Unsheltered
FROM: Rick Bowers
SUBJECT: Astoria Planning Commission to continue work on emergency shelter code proposal

The APC work session this past December was basically focused on bringing everyone up to speed on the issue. The work on the proposed Development Code updates had been on hold for about a year and a half. I honestly don’t know the current situation but the latest code proposal I have seen would reduce the capacity of the Astoria Warming Center to a maximum of 25 guests (from the current 30 — 35 in an emergency). From my perspective, not good…. I’m also not clear if this issue will or will not be discussed at the January and/or February APC meetings. I’ve attached the December 23rd report from the Community Development department — 2020-01-06 Agenda Packet Dec 23 Community Development Department Report.

My preference is to put this project on hold at the APC until Astoria’s Comprehensive Plan is updated to address homelessness. Here is my letter to the City Council from last year making this request: Astoria City Council re Emergency Warming Shelters.

Things you can do? (1) Write the City Council requesting the Comprehensive Plan be updated before changes are made to the Development Code regarding shelters. (2) Write the APC about the shelter issue. Here is my long letter (I wanted to document everything) – 2019-12-09 APC re temporary emergency shelter. (3) Attend “coffee chats” with any/all of the City Councilors to express your thoughts. (4) Write letters to the editor of The Astorian. (5) …?

In Joy, Rick

Memorandum

DATE: 12/11/2019
TO: Friends of the Unsheltered
FROM: Rick Bowers
SUBJECT: Astoria Planning Commission work session on temporary emergency shelters

Thank you EVERYONE who was able to witness last night’s Astoria Planning Commission work session on temporary emergency shelters. I think almost ten supporters were present. Also thanks to those who were unable to attend in person but sent “good vibes.” The shelter discussion was second on the agenda after a LONG discussion of the impact of the recent state legislation, “HB 2001,” that directly impacts Astoria’s restrictions on Accessory Dwelling Units (ADUs). This legislation will hopefully have a positive long-term impact on the availability and price of workforce / affordable housing which of course also directly impacts the homeless population. But on to shelters….

The shelter work session’s focus essentially turned out to be bringing everyone up to speed on where the shelter work sessions left off a year and a half ago. Three of the seven commissioners from 2018 are no longer on the Commission. Also, Planner Nancy Ferber, the city staff member assigned to the effort, no longer works for the city. Barbara Fryer, “recently” hired, has taken Nancy’s place. There are a lot of new faces and perspectives to integrate. At one point, Brett Estes, City Manager and acting Community Development Director, stepped back and framed the shelter topic in the larger context of homelessness discussions in Astoria. He specifically mentioned the drop-in resource center and potential zoning discussions. Commissioner Cindy Price, also on the mayor’s Homelessness Solutions Task Force (HOST), indicated HOST is involved in the wider discussion. From my perspective this led to a general sense of “no urgency” to push through a recommendation for changes to the Development Code on shelters and instead factor all of this into future discussions. I believe they will take the issue up again at the next planning meeting in January. I’m grateful the Commission did not rush to make a recommendation at this point to the City Council.

Last July I wrote a letter to the City Council urging a “brief” update to Astoria’s Comprehensive Plan (CP) to include a vision around homelessness and very affordable housing. The Comprehensive Plan is designed to provide the vision that the Development Code “implements.” I appreciated both Brett’s and Cindy’s insight that the shelter discussion is only a small part of the overall issue. I am going to continue to encourage the City Council to do an update of the CP.

And again, many many thanks for the presence of so many people. It may seem like the role of witness has little impact but I have been told by multiple city leaders that when we are in the audience, the energy shifts. Metaphorically, officials “sit up a little straighter.” I also have to specifically acknowledge the “non-anxious presence” of Jan Mitchell, former Astoria Planning Commissioner and current member of the county’s Citizen Advisory Committee for the review & update to the county’s Comprehensive Plan.  She is used to sitting in long meetings. At one point I looked over to see her peacefully threading a needle to quietly work on sewing while taking in the proceedings. I can learn a lot from her – hopefully including patience.

In Joy, Rick

Memorandum

DATE: 12/9/2019
TO: Friends of the Unsheltered
FROM: Rick Bowers
SUBJECT: Astoria Planning Commission work session on temporary emergency shelters

Background. About a year ago the APC began this work but it was put on hold by higher priority items. Prior discussions indicated to me the perspective of our homeless residents would be overshadowed by the “concerns of the neighborhood.” I’m looking for win-win solutions where everyone’s needs can be met. Several new members are on the current commission so it’s unclear to me what impact they will have. Last July I wrote a letter to the Astoria City Council on this issue. You can see my letter here: https://tinyurl.com/astoria-cp.

October 18, 2018

A PDF version of this letter is available here.

Astoria City Council
1095 Duane St.
Astoria, OR 97103

RE: Camping Ordinance

Dear Councilors:

I appreciate the ways that the City Council has addressed many of my concerns previously expressed. I am writing again to voice my continuing concerns about the changes to the Astoria camping ordinance, 5.900-5.925. To be clear, I understand the health and sanitation issues about those living in the woods as well as the neighbors’ concerns about safety and noise. I certainly want those issues remedied. Here is my apprehension:

Falling through the crack

A subcommittee of the Mayor’s Homelessness Solutions Task Force (HOST) met to “to develop a strategy for connecting any displaced homeless individuals with the right local resources for them, in case the ordinance change does pass at city council.” I think the subcommittee’s proposed strategy is a good one. However, it is acknowledged that some individuals (e.g. some of those suffering from mental issues) will not be in a position to take advantage of the available resources. The perhaps “classic” example is veterans suffering from PTSD. These people who “fall through the crack” are my biggest concern.

My focus of attention is with the last sentence of 5.925 which begins: “As used in this ordinance, camping does not include sleeping outdoors by homeless individuals with no access to alternative shelter….” So far, so good. However, the sentence continues “… so long as any tent, shelter and all other personal items such as sleeping bags, tarps and mats are removed from the site within 24 hours of proper notice.” Violation of this ordinance is a Class B violation and a Municipal Court Judge may order the camping gear (i.e. the “home”) to be seized and eventually sold. This means homeless individuals, including the mentally ill, can be forced to “move on” to another location, potentially every 24 hours. To me this is simply a win-lose solution; a failure to find a strategy for a win-win.

I am not an attorney, but I am interested in how the various courts have interpreted the Eighth Amendment (cruel & unusual punishment) as it applies to being homeless. My understanding is that Astoria considers itself “in the clear” by making unauthorized camping a civil versus criminal act. Both of the cases that “make the news” regarding no-camping (Martin v. City of Boise and Jones v. City of Los Angeles) were based on criminal violations. However, in the conclusion of the Los Angeles case the Court makes clear “We hold only that, just as the Eighth Amendment prohibits the infliction of criminal punishment on an individual for being a drug addict [citation omitted];  or for involuntary public drunkenness that is an unavoidable consequence of being a chronic alcoholic without a home [citation omitted];  the Eighth Amendment prohibits the City from punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles [emphasis added].”[1] Notice that the last phrase says “punishing” as opposed to the prior two situations in the sentence regarding “criminal punishment.” From my perspective, punishment would include being fined $265 for a civil violation for not “re-moving” to a new location and even frequent “re-moving” itself, as well as potential confiscation of shelter and personal belongings, and the psychological impact of insecurity and potential punishment.

As well as understanding the Constitution as a legal document, from my perspective it is also a vital moral imperative. The Eighth Amendment says simply, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” From what I understand, the Court’s understanding of this has evolved over time. It initially only applied to patently obvious cruel punishment. In more modern times it is now applied to things like sanitary conditions in prisons. The moral imperative has always been there even though moral consciousness has advanced over time. It seems hopeful to me that our evolving consciousness, as reflected in law (e.g. racial injustice, the Americans with Disabilities Act, LGBT Rights), will soon extend to homelessness. Why wait? Why not be leaders?

Unintended Consequences

I have been thinking about at least two potential unintended consequences of the revised code.

First, I really appreciate that Chief Spaulding is concerned for the health and safety of both the campers and his officers. Responding to an incident in the woods is not easy…. However, as quoted in the Daily Astorian, at least one of the campers will move deeper into the woods. Since these camps tend to be communities rather than isolated individuals, I suspect more will use this strategy. Responding to incidents deeper in the woods is not an improvement.  Can’t we develop a solution to the problems that makes things better for all? A real win-win?

Next, might this actually increase the number of homeless within the city proper? The proposed code appears to me to allow camping as long as the camper (with “no access to alternative shelter”) moves after receiving 24-hour notice. Maybe this is obvious and has been considered and everyone is okay with more camping within the city proper. In other words, if I am homeless and currently “staying under the radar” by camping in the woods and receive a notice to clear my campsite, I may as well pitch a tent in a city park. When I receive another 24-hour notice I’ll move to the next park and wait for the next 24-hour notice. Doing this would be following the new ordinance as I understand it. Hopefully many of the effected campers will be in a position to take advantage of the wonderful services provided by Clatsop Community Action (CCA) and Helping Hands. But what about the others?

Conclusion

I know this is a difficult situation with many complex issues. However, complex issues can be broken down into manageable pieces with tractable solutions that evolve over time. My preferred request is the City Council delay approving this updated ordinance and instead creates a focused group, including representatives from the homeless community and neighbors, with a one-month goal of (1) identifying all of the issues, and (2) developing a proposed strategy with a mindset of win-win. I would hope Astoria Police could immediately address the campers currently causing problems for the neighbors (e.g. if campers are littering, cite them for littering).

If the Council does approve the updated ordinance “as is” it may indeed solve some of the issues, with the agreed upon involvement of CCA and Helping Hands. However, there may be additional pieces to address once we see who falls through the cracks and what unintended consequences may arise.

Going forward, I would like to see the City Council monitor the results of any changes in policy towards the homeless, to ensure that those who come forward for housing do in fact find adequate housing, as well as identify the needs of those who remain unhoused and find ways to meet these needs. I enjoyed the way that the recent HOST meeting included both neighbors and people who are homeless in addition to appointed members of the Taskforce and I hope that these voices continue to be part of the process and solution.

Sincerely,

Richard D. Bowers
PO Box 1406
357 Commercial Street
Astoria, OR 97103
(916) 622-4501
bowers@speak-peace.com

[1] April 14, 2006 Ninth Circuit Court of Appeals in Jones v. City of Los Angeles. From my understanding this opinion was dismissed when the parties reached an agreement. However, in August 2016 the Department of Justice (DOJ) filed a statement of interest with the Ninth Appellate Court deciding the Boise case. The DOJ press release says “The statement of interest advocates for the application of the analysis set forth in Jones v. City of Los Angeles, a Ninth Circuit decision that was subsequently vacated pursuant to a settlement. In Jones, the court considered whether the city of Los Angeles provided sufficient shelter space to accommodate the homeless population. The court found that, on nights when individuals are unable to secure shelter space, enforcement of anti-camping ordinances violated their constitutional rights. The parties in Bell v. City of Boise disagree about whether the Jones court’s analysis was correct, reflecting the longstanding disagreement among courts analyzing the constitutionality of anti-camping ordinances. The statement of interest was filed to address this currently unsettled area of the law.” And indeed, I believe justices in Bell v. City of Boise did use the reasoning in Jones v. City of Los Angeles.

September 27, 2018

A PDF version of this letter is available here.

Ready, Fire, Aim:

A Discussion of the Proposed “No Camping” Ordinance in Astoria

We were surprised and disappointed by the article in the Wednesday, 9/5, Daily Astorian by Katie Frankowicz. The article is about the meeting of the City Council to adopt an emergency ordinance to ban camping in the wooded areas outside of the central city area, especially targeting homeless people. We have been attending the meetings of the city’s Task Force on homelessness, and do not recall hearing any discussion or recommendations supporting this action. While we acknowledge that many well intentioned people are trying to solve this problem, what we have come to realize is that the problem of homelessness can be seen from two entirely different perspectives.

The “Problem”

The “Homelessness Problem” is actually two high level problems seen from two different perspectives:

1. The problem of being homeless and trying to survive. This includes the lack of affordable housing, limited access to social services, receiving tickets when trying to find shelter in the downtown area, locked public bathroom, finding shelter to survive rain and cold weather conditions, and more.
2. The problem that others have about the presence of homeless people in Astoria. This includes the health and sanitation issues that can be related to sleeping in doorways, sleeping on sidewalks, camping, unsightly people, bad image for tourists, garbage, pan handling and more.

Homelessness Solutions Task Force

Members of the task force were appointed by the mayor and the Police Chief was appointed to chair the meetings. We have attended several of the mayor’s Homelessness Solutions Task Force (HOST) meetings started in 2017 and our general takeaway is that finding ways to meet the needs of homeless people is a long-term problem with no easy solutions. There appear to be no homeless people serving on the task force although occasionally we have seen one or two homeless or formerly homeless people present at a meeting.

This is the region’s second task force on homelessness. The report from the prior task force, Clatsop County Ten Year Plan to End Homelessness 2012-2022 by the Clatsop Homeless Coalition, developed a plan to address homelessness. The 2012 report cites statistics estimating 653 homeless individuals county-wide. The same data source[1] documents an increase of the homeless population to 682 in 2017—a 4% increase half way into the ten-year plan to end homelessness.

From our perspective, the 2012 Ten Year Plan made solid recommendations. The coalition identified action items within the areas of: Discharge Planning, Systems of Care, Housing Opportunities, Keys to Housing, Performance Measures, Emergency Response, Recommendations for State Attention, Employment and Income, and Coordinated Entry. For example, in the area of Keys to Housing, an action item was “Educate landlords and property management companies about housing homeless, special needs and vulnerable people, including peer dialogues among landlords who have housed riskier tenants with other landlords who may be interested.” In the area of Emergency Response, an action item was “Define Warming Stations as an emergency response that uses existing resources such as churches or schools and does not direct housing resources to temporary solutions. Existing buildings will not need to be financed and constructed.”

Sixty concrete action items were recommended. From our understanding, none of these were tackled except on a piecemeal fashion. As an example, while the coalition discussed the need for code changes, Astoria’s Development Code still does not include a warming center in any of the city’s zones. Thus the existing Astoria Warming Center (a nonprofit 501c3) is required to apply yearly for a conditional use permit instead of focusing solely on their stated mission “To prevent unsheltered people from dying of exposure in Astoria.”  This only existing warming center in Astoria has the capacity to house up to 30 individuals per night (35 in an emergency) for a maximum of 90 nights per year. While the Planning Commission was making some progress on amending the code, that effort is now on hold due to a redirection from the City Council to “higher priorities.”

What has happened to the Coalition’s Ten-Year Plan? Not much. Apparently, the group decided not to use it as a “jumping off” point when the mayor’s 2017 Homelessness Solutions Task Force first convened. Instead, they started from scratch. The general consensus of this group seems to be that the problem of homelessness is extremely complex and difficult to solve and will take time. Given the practice of writing tickets for sleeping in public and now making changes to the city ordinance prohibiting camping in the woods, there appears to be little political will to address the “problem of being homeless” and more concern about the existence of homeless people in Astoria. But perhaps another task force could come up with  more solutions….

The problem with homeless people existing in Astoria

While solving the problem of being homeless seems insurmountable in the short term, if we shift the perspective, we can see some action! For this side of the overall problem, the city can call it an emergency and act quickly. In a memo from Police Chief Spaulding to the City Council dated September 11th, Chief Spaulding recommended that the Council consider a first reading of an amendment to City Code 5.900-5.925 relating to camping in public places and that the ordinance take effect immediately following the second reading. The first reading of the proposed change to city code occurred on September 17^th at the City Council meeting. Here is the sequence of events as we know them:

• At some point city leaders (police chief & city manager) became aware of camps of homeless people in the wooded areas at the outskirts of Astoria.
• Tuesday, 9/4, City Council meeting. We reviewed the agenda and couldn’t find any mention of an item to discuss camping/homeless. But according to the Daily Astorian, the City Manager and police informed the council about the problem at this meeting.
• Wednesday, 9/5, Daily Astorian.
  • Reporting on this meeting, Katie Frankowicz wrote, “They want to dismantle the camps and clean up trash before fall rains and winter storms hit, but worry about displacing people who are already struggling.”
  • The city council wants Homelessness Solutions Task Force (HOST) to “link people with services and housing.” Note—HOST doesn’t meet again until October 8^th, which happens to be after the date of the second reading of the proposed change to the city ordinance on camping. Are these two actions even consistent?
  • The police “tagged the sites they found with 24-hour cleanup notices.” If the police already have a “tool” (cleanup notices) why the rush to outlaw camping? What about providing trash cans and collection? The city already provides public trash cans in public areas and could extend this service where needed.
  • City Manager “informed City Council of the situation at a meeting Tuesday night.” Although, it is not listed as an agenda item.
  • “City Councilor Cindy Price asked that the city talk to county officials about possibly establishing a camping spot or tiny home-type village near a bus line.” Will kicking the problem to the county solve the problem? And can they solve it by Fall…?
  • “And Price brought up a point that has also troubled police: If you move people, where do they go? …Without an established site for people to stay, Price said the city will just move people around ‘on an endless chess board.’” One homeless individual has said he would just move deeper into the woods; he has no other place to go.
  • “’Nobody wants to move these individuals out of this area,’ Spalding said of the Astoria camps. Police want to do the right thing and take ‘a humane approach,’ by moving slowly, involving social services and looking for ways to transition people to different housing arrangements.” While we appreciate this sentiment, the statement is not consistent with the goal to remove the camps by Fall, nor with the apparent urgency for passing an “emergency” ordinance. Both of these actions are taking the approach of getting rid of the homeless people rather than finding solutions to the condition of their homelessness. Given the consensus at the HOST meetings that the affordable housing shortage will take a long time to solve, apparently there is now justification for more drastic police action to remove the homeless and somehow this will be slow, humane, and inspire social services and landlords to cooperate. We believe this is the wrong tool to use, in spite of good intentions.
  • “’We are not talking about arresting anybody, we are not talking about issuing citations,’ Spalding added. ‘We’re simply talking about removing the encampments from the city property for a variety of reasons — some of them include fire hazards, public health and safety issues in terms of needles and trash and human feces.’” How will the police remove the encampments? If they are not issuing citations, why do they need this ordinance? When we know that the police have acknowledged that the homeless have no other place to go, what do they expect will happen? What makes this a matter for the police, since making new ordinances does not provide any solution? And what about the need for the homeless to have shelter for the coming winter as a matter of survival?
  • “’We want to be sensitive to this and not just displace human beings,’ Spalding said.” How does one sensitively remove a homeless camp when you know there are no adequate places for these folks to go?
  • “In August, law enforcement in Clatsop County went only two days without receiving a call or initiating a call about a homeless camp or someone camping in a car. Most days, there were several calls. Hired security and neighbors of Columbia Memorial Hospital frequently report possible camps or suspicious comings and goings near hospital buildings.” So this issue is not new and the police have been aware of these camps for some time. Why is there an emergency now?
  • “Kenny Hansen, the Astoria Police Department’s homeless liaison officer, estimates he knows 9 out of every 10 people camping in the woods. When he went out to survey camps with Spalding on Friday, he called out the names of the people who lived there as he approached their tents. ‘Hello! It’s Kenny,’ he called each time.” Kenny has established personal relationships with most of the homeless people. Has there been any effort to include them in addressing the problems with the camps?
  • “The offenses they’re guilty of are low level and the police aren’t interested in making arrests. But if camping continues, the messes left behind could go beyond the city’s resources to clean up.” This argument doesn’t make any sense. Messes are “left behind” only when the homeless are forced to move. Why would the homeless leave the place clean when they are being kicked out? If the city is responsible for cleaning up the mess left behind, why didn’t the city find a way to provide a dumpster or cans close to the site while the camp was inhabited? The Park Service regularly solves this problem in isolated areas. If trash and sanitary conditions are the issue, let’s address those issues instead of “re-moving” (as in moving again) the homeless.
• Tuesday, 9/17 City Council Meeting. An agenda item was the first reading of the proposed no-camping change to city code. Minutes from the 9/4 city council meeting were not approved at this meeting so there is no public copy available. Therefore the only information we have is from the Daily Astorian.
  • “As used in this ordinance, camping does not include sleeping outdoors by homeless individuals with no access to alternative shelter so long as any tent, shelter and all other personal items such as sleeping bags, tarps and mats are removed from the site within 24 hours of proper notice.” So the problem is solved if the homeless shuffle around every 24 hours?
  • “Violation of this ordinance is a Class 8 infraction as defined by ORS 153.310.” The only information we have about ORS 153.310 is that it was repealed in 1999. See https://www.oregonlegislature.gov/bills_laws/ors/ors153.html and https://www.oregonlegislature.gov/bills_laws/lawsstatutes/1999orLaw1051.html.]
  • “The City Council finds that unauthorized camping within the City present issues related to the health and safety of its citizens and therefore adopts this ordinance to meet an emergency pursuant to Section 8.3 of the Astoria City Charter. This ordinance shall become effective as soon as it is adopted.” Why is this an emergency all of a sudden? And what problem does this ordinance solve?
• Wednesday, 9/18, Daily Astorian.
  • “’We’re not just saying, ‘Get out of here,’” City Councilor Tom Brownson said. ‘We’re trying to do it in a reasonable and … humane way.’” So, in effect we are saying “get out of here” nicely?
  • “Police Chief Geoff Spalding agreed. The hope is to deal with camping issues but have a minimal impact on the people camping, he said. However, there are concerns with some of the camps where trash has piled up or where other health and human safety issues might exist, he added.” How is depriving people of shelter, security and perhaps survival a “minimal impact?” This does not solve the problem; it just “re-moves” it. If the problem is trash, then we need to address the trash problem. This involves a different city department and not the police.
  • “Spalding is working with City Attorney Blair Henningsgaard to figure out exactly where the ruling touches on Astoria’s ordinances. The court’s ruling was nuanced, Spalding said. Much of it was specific to Boise and may not apply to Astoria. Illegal camping was considered a misdemeanor in Boise. In Astoria, it is only an infraction and not considered a criminal act.” Actually, in a Los Angeles case in 2006, Jones v. City of Los Angeles, Judge Wardlawof the Ninth Circuit Court of Appeals wrote “The Eighth Amendment prohibits the City from punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles.” Cities have been trying to wiggle away from this (no sleeping in RVs in Gearhart, etc.). But to say it’s only an infraction (with presumably a fine) and not a citation is irrelevant when the judge in the L.A. case clearly said “The Eighth Amendment prohibits the City from punishing….”[2] An infraction and potential fine is punishment. In this case, the city reached a settlement among the parties and the opinion was vacated,[3] but that does not change Judge Wardlawof’s statement about his application of the Eighth Amendment.

In Conclusion

I think we all recognize that this issue is complex with no simple solutions. Many cities have struggled with this problem for years—including “kicking the can down the road.” The current Task Force has many of the key people of Astoria who each have a piece of the solution and who are collectively able to look at the issue from both perspectives. While the process is slow, it is a more collaborative one which will include multiple agencies, strategies and services to meet the needs of the homeless as well as the city. The only emergency is how the homeless will be situated to face the approaching winter.

What we do not want is to declare a political emergency and rush through changes to city code that do not really address the problem of being homeless and seem more to be addressing the problem with homelessness. Our desire is for Astoria to support all the people involved while finding longer term solutions. For example, instead of telling people where they can’t live, tell them where they can live, at least until there are better options. Perhaps mark off accessible locations on city property for camping and provide trash service and portable sanitation facilities. Leave these campgrounds in place until longer term solutions are implemented. We need workable solutions to the real problems which Chief Spaulding identified as “fire hazards, public health and safety issues in terms of needles and trash and human feces.’  We could also include the homeless in the conversation of possible solutions. Whatever the direction, we are requesting city leadership to do their part in offering win-win solutions.

Rick Bowers & Nelle Moffett
357 Commercial Street
Astoria, OR 97103

[1] See https://www.oregon.gov/ohcs/Pages/research-point-in-time-homeless-count-in-oregon.aspx

[2] ACLU of Southern California Wins Historic Victory in Homeless Rights Case, American Civil Liberties Union https://www.aclu.org.

[3] Portland will not change anti-camping law after ruling, Daily Astoria September 6, 2018.