2022-05-05 City Council - Full S Agenda-3162Op E D
o Agenda
Edmonds City Council
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3. COUNCIL BUSINESS
1. Proposed Ordinance Adding New Chapter, Chapter 5.70 entitled "Unlawful Occupation of Public
Property" to City Code (90 min)
ADJOURN
Edmonds City Council Agenda
May 5, 2022
Page 1
3.1
City Council Agenda Item
Meeting Date: 05/5/2022
Proposed Ordinance Adding New Chapter, Chapter 5.70 entitled "Unlawful Occupation of Public
Property" to City Code
Staff Lead: Patricia Taraday, City Attorney, Lighthouse Law Group
Department: City Attorney's Office
Preparer: Scott Passey
Background/History
This agenda item had been brought forward to Council on April 26, 2022. The ordinance was introduced,
and Council provided input and raised important questions. The ordinance has been revised in an effort
to reflect Council intent.
Discussion and amendments took place at the May 3rd meeting, however, the meeting was adjourned
before final action could be taken.
Staff Recommendation
Adopt Ordinance No. XXXX, adding a new Chapter 5.70 entitled "Unlawful Occupation of Public
Property" to the City Code.
Narrative
The ordinance has been revised to reflect council intent at the April 26, 2022 business meeting. The
revised ordinance makes it clear that it is unlawful for anyone to occupy, or store personal property, on
public property overnight. Enforcement is suspended against those individuals experiencing
homelessness when no available shelter exists. If available shelter exists it is required to be offered,
along with other available human services, to the individual(s) experiencing homelessness. Only if the
shelter is refused can the ordinance be enforced against those experiencing homelessness.
Several definitions have been revised for additional clarity and because the policies and procedures
implemented by the chief of police are intended to contain details on how available shelter is to be
determined and how storage is to be facilitated.
In addition, the ordinance now specifically addresses those situations in which city action, other code
provisions or city contracts or permits allow for the occupation of public property. It is not unlawful to
occupy public property when permitted to do so by a city park permit for a special event, for example.
So that particular situation has been addressed with the revisions.
Attachments: * The minutes of the Council discussion of this agenda item on April 26th are found in the
consent agenda section of this packet, item 7.5.
Attachments:
Packet Pg. 2
3.1
Unlawful Occupation of Public Property Ordinance for 5-3-22 Meeting
Packet Pg. 3
3.1.a
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF EDMONDS,
WASHINGTON ADDING A NEW CHAPTER, CHAPTER 5.70,
TO THE EDMONDS CITY CODE ENTITLED "UNLAWFUL
OCCUPATION OF PUBLIC PROPERTY'
WHEREAS, pursuant to Article XI, Section 11 of the Washington Constitution and RCW
35A.11.020, the City of Edmonds is authorized to regulate public property; and
WHEREAS, public property is intended to be used by the public for public purposes,
including daily City operations, park recreational use, pedestrian, bicycle and vehicular
transportation and other public uses; and
WHEREAS, there is an awareness that when the unhoused population does not have
available overnight shelter, public property can be unavailable to the general public for its intended
purposes; and
WHEREAS, the City of Edmonds has expanded its human services by adding a
component of human services to the Deputy Parks and Recreation Director position and by
growing its partnerships with local non-profit organizations for the purpose of improving the
coordination of existing services, including programs specifically related to improving the lives of
the unhoused residents of the City; and
WHEREAS, the City of Edmonds authorized the creation of a task force to analyze the
complex issues related to the unhoused residents of the City and the task force overwhelmingly
supports and prioritizes the offering of human services, including available shelter, to the unhoused
Packet Pg. 4
3.1.a
residents of the City as part of the provision of wrap -around services necessary to support the
City's unhoused residents; and
WHEREAS, in Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), the Night Circuit
Court of Appeals held that the Eight Amendment to the United States Constitution prohibits cities
from enforcing ordinances criminalizing camping on public property when there is no available
shelter; and
WHEREAS, this Ordinance makes it unlawful to occupy and store personal property on
public property overnight, but suspends enforcement against those experiencing homelessness if
overnight shelter is not available; and
WHEREAS, the City Council finds that the regulatory requirements within this ordinance
are necessary to promote public health, safety and welfare by preserving public use of public
spaces for which they are intended;
NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, DO
ORDAIN AS FOLLOWS:
Section 1. A new chapter of the Edmonds City Code, chapter 5.70, entitled "Unlawful
Occupation of Public Property" is hereby added to read as set forth in Attachment A hereto, which
is incorporated herein by this reference as if set forth in full.
Packet Pg. 5
3.1.a
Section 2. Severability. If any section, subsection, clause, sentence, or phrase of this
ordinance should be held invalid or unconstitutional, such decision shall not affect the validity of
the remaining portions of this ordinance.
Section 3. Effective Date. This ordinance is subject to referendum and shall take effect
thirty (30) days after final passage of this ordinance.
APPROVED:
MAYOR MICHAEL NELSON
ATTEST/AUTHENTICATED:
CITY CLERK, SCOTT PASSEY
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
Im
JEFF TARADAY
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NO.
Packet Pg. 6
3.1.a
SUMMARY OF ORDINANCE NO.
of the City of Edmonds, Washington
On the day of , 2022, the City Council of the City of Edmonds, passed
Ordinance No. A summary of the content of said ordinance, consisting
of the title, provides as follows:
AN ORDINANCE OF THE CITY OF EDMONDS, WASHINGTON
ADDING A NEW CHAPTER, CHAPTER 5.70, TO THE EDMONDS
MUNICIPAL CODE ENTITLED "UNLAWFUL OCCUPATION OF
PUBLIC PROPERTY'
The full text of this Ordinance will be mailed upon request.
DATED this day of , 2022.
CITY CLERK, SCOTT PASSEY
Packet Pg. 7
3.1.a
ATTACHMENT A
Chapter 5.70
UNLAWFUL OCCUPATION OF PUBLIC PROPERTY
Sections
5.70.010
Purpose
5.70.020
Definitions
5.70.030
Unlawful occupation of public property
5.70.040
Unlawful storage of personal property on public property
5.70.050
Enforcement
5.70.060
Rules
5.70.070 Penalty for Violations
5.70.010 Purpose
It is the purpose of this chapter to promote public health, safety, and welfare by
preserving public use of public spaces for which they are intended.
5.70.020 Definitions
"Available overnight shelter" means a public or private facility, with an available
overnight space, open to person(s) experiencing homelessness at no charge and to which
the city facilitates transport.
"Occupy" means to evidence an intent to remain in a place, at least overnight. Intent can
be evidenced by setting up tents, shelter, or bedding, for example.
"Personal property" means an item(s) recognizable as belonging to a person, has apparent
utility or value in its current condition, and is not hazardous.
"Public property" means all parks, streets, rights -of -way, sidewalks and any other
property of which the City has a property interest.
"Store" means to put aside or accumulate for use when needed, to put for safekeeping, or
to place or leave in a location.
Packet Pg. 8
3.1.a
5.70.030 Unlawful occupation of public property
Unless caused by city action, or otherwise authorized by city code, city contract or
permit, it shall be unlawful for any person to occupy public property.
5.70.040 Unlawful storage of personal property on public property
A. Unless caused by city action, or otherwise authorized by city code, city contract or
permit, it shall be unlawful for any person to store personal property on public property
overnight.
B. Removal of personal property. The City may remove unlawfully stored personal
property after the city provides necessary notice and an opportunity to be heard. The City
shall facilitate the storage of personal property if required by law.
5.70.050 Enforcement
The City shall not enforce the provisions of 5.70.030 or 5.70.040 against persons
experiencing homelessness if there is no available overnight shelter that can be utilized
by that particular person. If available overnight shelter is available, the shelter space must
be offered to the person(s) experiencing homelessness, along with other available human
services. Only if the shelter space is refused, can the provisions of 5.70.030 and 5.70.040
be enforced against persons experiencing homelessness.
5.70.060 Rules
The chief of police is hereby authorized to adopt rules, regulations, administrative
policies, and procedures for implementing the provisions of this chapter.
5.70.070 Penalty for violations
A. Violation of any of the provisions of this chapter is a misdemeanor, and shall be
punished as follows:
1. First Offense. Any person violating any of the provisions of this chapter shall,
upon conviction of such violation, be punished by a fine of not more than $1,000 or
by imprisonment not to exceed 90 days, or by both such fine and imprisonment.
2. Second Offense. Any person who violates any of the provisions of this chapter,
upon conviction of such violation, a second time within a five-year period shall be
guilty of a misdemeanor, punishable by a fine of not more than $1,000 or by
imprisonment not to exceed 90 days, or by both such fine and imprisonment. One
hundred dollars of the fine and one day of imprisonment shall not be suspended or
deferred.
Packet Pg. 9
3.1.a
3. Third or Subsequent Offense. Every person who violates any of the provisions of
this chapter, upon conviction of such violation, a third or more times within a five-
year period shall be guilty of a misdemeanor, punishable by a fine of not more than
$1,000 or by imprisonment not to exceed 90 days, or by both such fine and
imprisonment. Five hundred dollars of the fine and five days imprisonment shall
not be suspended or deferred.
4. Prior to imposing any fine for violation of this chapter, the court shall make an
inquiry as to a person's ability to pay. If a person is unable to pay the monetary
penalty set forth in subsections (1), (2) or (3) of this section, the court is explicitly
authorized to order performance of community service or work crew in lieu of a
monetary penalty.
Packet Pg. 10