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2022-05-05 City Council - Full S Agenda-3162Op E D o Agenda Edmonds City Council s71. ,HvSPECIAL MEETING - VIRTUAL/ONLINE VIRTUAL ONLINE MEETING EDMONDS CITY COUNCIL MEETINGS WEB PAGE, HTTP://EDMONDSWA.IQM2.COM/CITIZENS/DEFAULT.ASPX, EDMONDS, WA 98020 MAY 5, 2022, 8:00 PM THIS MEETING IS HELD VIRTUALLY USING THE ZOOM MEETING PLATFORM. TO VIEW OR LISTEN TO THIS EDMONDS CITY COUNCIL MEETING, PASTE THE FOLLOWING INTO A WEB BROWSER USING A COMPUTER OR SMART PHONE: HTTPS://ZOOM. US/J/95798484261 OR JOIN BY PHONE: US: +1 253 215 8782 WEBINAR ID: 957 9848 4261 CLOSED CAPTIONS ARE AVAILABLE USING THE ZOOM PLATFORM. 1. CALL TO ORDER 2. ROLL CALL 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