Encampments of Unhoused Individuals in Transportation Rights-of-Way: Laws and State DOT Practices (2022)

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6 NCHRP LRD 87 4. Analysis of the local ordinances of 11 metropolitan areas with respect to prevention and removal of unauthorized ac- cess to the right-of-way and authorized use of the right-of- way for shelters. e research team employed the use of several legislative re- search databases, including the following: • National Conference of State Legislatures bill-tracking databases. • LegiScan Data Service, a real-time legislative tracking service. • Fastcase legal research service. Using these databases, researchers reviewed federal laws and regulations focusing on authority, safety, environmental im- pacts, and implications of right-of-way access type. Specically, researchers analyzed the following: • Authority. e research team analyzed federal laws and regulations that aect a state’s authority to regulate and man- age unauthorized access to public rights-of-way. • Safety. e research team identied federal laws impacting the safety of the traveling public and unauthorized users of the public right-of-way. is involved factors such as dis- tinct types of areas where unauthorized access occurs or distinct types of occupying the right-of-way. • Environmental impacts. e research team identied federal laws and regulations that prescribe standards for managing environmental impacts, including unregulated and unauthorized waste discharges to storm sewers and similar environmental impacts. • Implications of right-of-way type. e research team ex- amined how the type of right-of-way aects a DOT’s ability to prevent or remove unauthorized activity. Right-of-way characteristics such as the way the right-of-way was ac- quired, whether the right-of-way is funded or supported by federal monies, and the type of access allowed (e.g., limited- access right-of-way) were reviewed. e following sections summarize constitutional protec- tions, federal guidance, the current legal framework at state DOTs, and a selection of city ordinances that target unsheltered encampments. B. Constitutional Protections is section summarizes applicable constitutional protec- tions related to unsheltered encampments in the right-of-way. 1. First Amendment—Freedom of Speech and Religion Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peace- ably to assemble, and to petition the Government for a redress of grievances.1 1 U.S. Const. amend. I. C. Digest Organization e digest is organized into four sections: • Section I provides introductory information. • Section II provides a detailed discussion of the federal and state regulatory framework that addresses a transportation agency’s prevention and removal of encampments for people experiencing homelessness from the transportation right-of- way, the authorized use of the transportation right-of-way for homeless shelters and social services, and transportation agencies’ related ability to control their right-of-way. • Section III provides an overview of procedures and current practices that transportation agencies use in the prevention and removal of encampments and a description of trans- portation agency practices of right-of-way uses for shelters and related social services. is overview was developed based on feedback from the survey and interviews. • Section IV provides conclusions and a summary of ndings. In addition, the digest contains three appendices, as follows: • Appendix A provides a copy of the survey questionnaire. • Appendix B provides a detailed discussion of survey results. • Appendix C provides an overview of the questionnaire used for the follow-up interviews for case examples. II. LEGAL ISSUES AND GUIDANCE RELATED TO THE USE OF RIGHT-OF-WAY BY UNSHELTERED POPULATIONS AND FOR SHELTERS A. Introduction is section provides a detailed discussion of the federal and state regulatory frameworks related to unsheltered en- campments in the right-of-way and the use of the right-of-way to provide social services and shelters for people experiencing homelessness. e research team conducted a review of federal laws and regulations pertaining to the subject. e statutory/ regulatory analysis encompassed the following activities: 1. Analysis of federal laws, rules, and regulations that aect transportation agencies’ practices, procedures, and policies for prevention and removal of unauthorized access to the right-of-way and authorized use of the right-of-way for shelters. 2. Analysis of legal claims against transportation agencies that involve prevention or removal of unsheltered encamp- ments from the transportation right-of-way and the authorized use of the transportation right-of-way for shelters. 3. Analysis of the law of all applicable states to determine each state’s statutory and regulatory authority with respect to prevention and removal of unauthorized access to the right- of-way and authorized use of the right-of-way for shelters.

NCHRP LRD 87 7 Policies and ordinances that attempt to limit begging and panhandling have been challenged under the First Amend- ment of the U.S. Constitution. However, in a 1991 case, the U.S. Supreme Court ruled that an unhoused individual could be banned from panhandling in the New York subway.2 e Supreme Court reasoned that the First Amendment protects speech but not conduct, and thus the New York City Transit Authority could regulate the conduct of begging and more gen- erally the conduct of being unsheltered or disheveled in public. To avoid the issue of speech versus conduct and not completely limit the constitutional rights of the unsheltered, several juris- dictions have not outlawed all but only “aggressive” begging. In contrast, some states have ruled that panhandling is free speech under state constitutional denitions, in particular if state de- nitions are broader than federal denitions.3 In the recent case of Dumiak and Simmons v. Village of Downers Grove, the plain- tis were ticketed for panhandling without a permit. e (now repealed) ordinance at issue made political and religious activi- ties exempt from needing a permit. e court stated that First Amendment law was clearly established at the time the ordi- nance was enforced: “a speech restriction targeting panhandling discriminates based on content and survives constitutional muster only when supported by a compelling justication.”4 Since the ordinance was based on content in which political or religious speech was given exception, the court decided that the statute and former ordinance fell short of passing constitutional muster. e First Amendment has also been cited in cases involving unhoused individuals trespassing on public property. e de- nition of criminal trespass varies greatly from state to state and even local jurisdiction. An important distinction is that some jurisdictions evaluate whether harm was done in the unauthor- ized entry, and others require verbal or written warnings such as posted signs. Further, some jurisdictions focus on the acts com- mitted on a property, rather than entry to the property. In Martin v. City of Boise, the city alleged ample available shelter space through two local facilities operated by reli- gious organizations. e court referred to a 2007 decision by the Ninth Circuit stating that “a city cannot, via the threat of prosecution, coerce an individual to attend religion-based treat- ment programs consistently with the Establishment Clause of the First Amendment.”5 e Establishment Clause prohibits the government from creating laws respecting an establishment of religion. e clause also prohibits the government from favoring religion, or non-religion, over the other. ese facilities required individuals to enroll in their religious program if they wished to stay longer than 17 consecutive days. If they declined to partici- pate in the religious program, they were banned from returning 2 Young v. New York City Transit Authority, 729 F. Supp. 341 (S.D.N.Y. 1990). 3 Volkart v. City of Medford, No. 081030E1 (Or. Cir. Ct. appeal docketed Jun. 14, 2009). 4 Dumiak v. Vill. of Downers Grove, 475 F. Supp. 3d 851 (N.D. Ill. 2020). 5 Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019). to the facility for 30 days, leaving individuals with no alternative when the single nonreligious shelter became full. e Boise city ordinance was being enforced when shelters had available beds, but the religious requirement of the program made the available beds conditional aer a set number of days. 2. Fourth Amendment—Illegal Search and Seizure e right of the people to be secure in their persons, houses, papers, and eects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon prob- ably cause, supported by Oath or armation, and particularly describing the place to be searched, and the persons or things to be seized.6 e Fourth Amendment might apply for law enforcement procedures, such as tearing down encampments for people experiencing homelessness and seizing and disposing of the be- longings of unsheltered individuals. In many cases, the law has ruled in favor of the unsheltered, as in a lawsuit against the City of Fresno and the California Department of Transportation that declared the conscation of the belongings of homeless indi- viduals unlawful.7 A related issue is the debate over privacy and how privacy should be addressed on public property. In Katz v. U.S., the U.S. Supreme Court dened that the Fourth Amend- ment protects people and not places: “What a person know- ingly exposes to the public, even in his home or oce, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”8 Unsheltered individuals might have no choice but to perform private activities in public, and in California v. Greenwood, the State of California acknowledged that a “failure to recognize such an expectation of privacy as rea- sonable would result in an unequal application of the laws to the rich and the poor.”9 Central to the discussion over Fourth Amendment viola- tions is the denition of “private space.” Likewise, central to the discussion of whether unsheltered individuals qualify for relocation assistance when forced to move has been the deni- tion of “residence.” e federal Uniform Act has excluded the unsheltered from coverage under the act and eligibility for relo- cation benets.10 In addition, individuals residing in emergency shelters have also been excluded from the denition of “dwell- ing” in the Uniform Act.11 3. Eighth Amendment—Cruel and Unusual Punishment Excessive bail shall not be required, nor excessive nes im- posed, nor cruel and unusual punishments inicted.12 6 U.S. Const. amend. IV. 7 Kincaid v. City of Fresno, 244 F.R.D. 597 (E.D. Cal. 2007). 8 Katz v. U.S., 389 U.S. 347 (1967). 9 California v. Greenwood, 486 U.S. 35 (1988). 10 42 U.S.C. 61, Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Assisted Programs. 11 49 C.F.R. § 24.2. 12 U.S. Const. amend. VIII.

8 NCHRP LRD 87 e Western District of Washington opines that the Eighth Amendment does not apply unless the ordinance or statute is of a criminal nature. e district states that there can be no pun- ishment without criminal sanctions.20 4. Fourteenth Amendment—Equal Protection of the Laws All persons born or naturalized in the United Sates, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.21 Some jurisdictions have targeted unsheltered individuals in public spaces through laws that prohibit loitering. ese laws oen prohibit an extensive range of behavior, and the U.S. Supreme Court has found several loitering laws to be unconsti- tutionally violating the Fourteenth Amendment’s Due Process Clause, for example, due to vagueness.22 A law that does not give notice of prohibited conduct to aected individuals and encour- ages arbitrary police enforcement could be unconstitutionally vague. Many of these laws are challenged under the right to travel derived from the Fourteenth Amendment. A class-action suit brought by unsheltered individuals in Miami found that the city’s ordinances prohibiting sleeping in public, being in a public park aer dark, obstructing sidewalks, loitering, and prowling and trespassing on public property were overbroad and violated the plainti ’s due process.23 e perfor- mance of “innocent conduct in public places—in particular, for being in a park or on public streets at a time of day when there is no place where they can lawfully be—most denitely interferes with their rights under the constitution to…freedom of move- ment.” Furthermore, the court found that “arresting the home- less for the harmless acts which they are forced to perform in public infringes on their fundamental right to travel.” C. Federal Guidance is section discusses how federal codes and regulations related to unsheltered encampments in the right-of-way devel- oped over time. Additionally, the research team examined the current regulatory framework. 1. Federal Guidance on Relocation and Displacement of Persons e Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally Assisted Programs estab- lishes standards and protections for acquiring real estate or 20 Aitken v. City of Aberdeen, 393 F. Supp. 3d 1075 (W. D. Wash. 2019). 21 U.S. Const. amend. XIV, § 1. 22 U.S. Const. amend. XIV. 23 Pottinger v. City of Miami, 810 F. Supp. 1551. 1580 (S.D. Fla. 1992). e primary purpose of the Eighth Amendment’s Cruel and Unusual Punishment Clause “has always been considered, and properly so, to be directed at the method or kind of punish- ment imposed for the violation of criminal statutes.”13 Although the clause “imposes substantive limits on what can be made criminal and punished as such,” these limits are “to be applied sparingly.”14 e Eighth Amendment has frequently been cited to protect individuals from cruel and unusual punishment of policies that disallow or tear down camps for unsheltered indi- viduals. In such cases, supporters have sought to protect unshel- tered individuals by interpreting homelessness as a status and arguing that anti-camping or anti-sleeping ordinances punish that status.15 Case law on this issue is not consistent: Some courts have chosen to interpret status based on Powell v. Texas, which dier- entiated status—for example, alcoholism—from condition—for example, intoxication. In Tobe v. City of Santa Ana, the Supreme Court of California held that previous cases hinged on the dis- tinction between status and conduct and did not deal with the dierentiation of voluntary and involuntary conduct.16 e court found that an ordinance banning camping and storage of personal property in public areas did not violate the Eighth Amendment because the ordinance proscribed conduct, not status. In Joyce v. City and County of San Francisco, the court held that homelessness was a condition “that could be more easily altered and eectively addressed with social interventions. Moreover, the decision of whether to provide homeless shelters was one of discretion le to the City, and ‘status cannot be de- ned as the function of the discretionary acts of others.’ ”17 In the 2019 case of Martin v. City of Boise, the Ninth Circuit ruled that a city camping ordinance violated the Eighth Amend- ment because it “imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available.”18 Martin referenced another Ninth Circuit case, Jones v. City of Los Angeles, where a city ordinance prohibiting sitting, lying, or sleeping in the street at any time was declared to unconstitutionally criminalize conduct that was an unavoidable product of the status of individuals ex- periencing homelessness.19 e court concluded that “so long as there is a greater number of homeless individuals in Los Angeles than the number of available beds [in shelters],” the city could not enforce the ordinance against unsheltered individuals. 13 Powell v. Texas, 392 U.S. 514, 531-32 (1968). 14 Ingraham v. Wright, 430 U.S. 651, 667 (1977). 15 Nicholas May, Fourth Amendment Challenges to “Camping” Ordi- nances: e Government Acquiescence Doctrine as a Legal Strategy to Force Legislative Solutions to Homelessness. Rich. J.L. & Pub. Int., 113 No. 8, 2008, 113–134. 16 Tobe v. City of Santa Ana, 892 P.2d 1145, 1166 (Cal. 1995). 17 Joyce v. City and County of San Francisco, 87 F.3d 1320 (1996). 18 Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019). 19 Jones v. City of Los Angeles, No. cv-03-1142-ER (C. D. Cal. 2004).

NCHRP LRD 87 9 a. Executive Order 12898 Executive Order 12898, Federal Actions to Address Envi- ronmental Justice in Minority and Low-Income Populations, directs federal agencies to “avoid, minimize or mitigate dispro- portionately high and adverse human health and environmental eects, including social and economic eects, on…low income populations.”26 Executive Order 12898 provides guidance to fed- eral agencies for considerations to mitigate adverse impacts of agency activities, including maintenance, on low-income and minority populations. As a result of the executive order’s direc- tive that federal agencies create and adopt environmental justice strategies, USDOT adopted Order 5610.2 in 1997.27 e original order required DOT programs to avoid, minimize, or mitigate eects on protected populations.28 In keeping with both Execu- tive Order 12898 and USDOT Order 5610.2, the Federal High- way Administration (FHWA) issued FHWA Order 6640.23 in 1998 describing policies and directives to integrate environ- mental justice principles with existing operations.29 b. USDOT Environmental Justice Order In August of 2011, federal agencies signed a memorandum of understanding rearming the commitment to environ- mental justice concerns as described in Executive Order 12898. USDOT noted that it is “exploring traditional and non- traditional strategies for engaging low-income and minority populations.” is led to USDOT issuing the Final DOT Envi- ronmental Justice Order 5610.2(a) on May 2, 2012.30 Following suit, FHWA issued an updated Order 6640.23A, FHWA Actions to Address Environmental Justice in Minority Population and Low-Income Populations, on June  14, 2012.31 FHWA Order 6640.23A revised the prior order to state FHWA’s responsibili- ties and provide additional guidance by referencing several legal authorities that govern the following: • Executive Order 12898. • USDOT Order 5610.2(a). • Title VI of the Civil Rights Act of 1964. • Title 23 of the United States Code Section 109(h).32 • National Environmental Policy Act (NEPA). 26 Executive Order 12898, 59 Fed. Reg. 7629 (Feb. 11, 1994). 27 DOT Environmental Justice Order 5610.2 (1997). 28 California Department of Transportation. Community Impact Assessment, Volume 4 of the California Department of Transportation Environmental Handbook Series, Chapter 8, 2011. 29 Federal Highway Administration, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Popu- lations, Order 6640.23 (Dec. 2, 1998). 30 U.S. Department of Transportation. Final DOT Environmental Justice Order 5610.2(a), 77 Fed. Reg. 27534 (May 10, 2012). 31 Federal Highway Administration. Actions to Address Environ- mental Justice in Minority Populations and Low-Income Populations, Order 6640.23A (June 14, 2012). 32 Creating guidelines assuring adverse economic, social, and envi- ronmental eects of deferral-aid projects have been considered. displacing persons for federally funded programs.24 ese stan- dards promulgate rules to implement the Uniform Act that ap- plies to any federal agency that seeks to acquire real property with federal funds and establishes that individuals cannot be displaced from their residence without proper notice and unless a replacement residence is available. Monetary compensation may be provided to procure replacement housing. e Uniform Act and its amendments are codied as 42 U.S.C 4601 et seq., and 49 CFR 24. Sections 4601(6) and 24.2 provide provisions for determining whether a person can be classied as a displaced person. A displaced person is dened as: Any person who moves from real property, or moves his personal property from real property—as a direct result of a written notice of intent to acquire or the acquisition of such real property in whole or in part for a program or project undertaken by a Federal agency or with Federal nancial assistance; or on which such a person is a residential tenant or conducts a small business, a farm operation, or a business dened in paragraph (7)(D), as a direct result of rehabilitation, demo- lition, or such other displacing activity as the lead agency may pre- scribe, under a program or project undertaken by a Federal agency or with Federal nancial assistance in any case in which the head of the displacing agency determines that such displacement is permanent. e Uniform Act goes on to determine that a displaced per- son does not include: A person who has been determined, according to criteria established by the head of the lead agency, to be either in unlawful occupancy of the displaced dwelling or to have occupied such dwelling for the purpose of obtaining assistance under this chapter; in any case which the displacing agency acquires property for a program or project, any person (other than a person who was an occupant of such property at the time it was acquired) who occupies such property on a rental basis for a short term or a period subject to termination when the property is needed for the program or project. Chapter 3 of the Tenant Assistance, Relocation and Real Prop- erty Acquisition Handbook produced by the U.S. Department of Housing and Urban Development states that a displaced “homeless” person is not displaced from a dwelling as dened in the Uniform Act and is not entitled to moving expenses. e handbook does, however, mention the possibility of payment “for actual costs for moving their possessions.”25 2. Federal Guidance on Utilization of Highway Right-of- Way is section discusses current federal guidance on unshel- tered encampments in the right-of-way. e review of current guidance included the following: • Executive Order 12898. • U.S. Department of Transportation (USDOT) Environ- mental Justice Order. • Other agency interpretations of applicable federal codes and regulations. 24 49 U.S.C. 24.2. 25 U.S. Department of Housing and Urban Development. Tenant Assistance, Relocation and Real Property Acquisition Handbook (1378.0), Chapter 3, 3–2(A)(2)(b).

10 NCHRP LRD 87 presence of transient encampments on right-of-way and other public lands owned by transportation agencies.”42 Advisory ser- vices typically include providing information as well as arrang- ing for social services and other advocacy groups. c. Additional Agency Guidance In May of 2020, the Centers for Disease Control and Pre- vention (CDC) issued Interim Guidance on Unsheltered Homelessness and Coronavirus Disease 2019 (COVID-19) for Homeless Service Providers and Local Ocials.43 e guidance recommended allowing “people who are living unsheltered or in encampments to remain where they are” if individual hous- ing options were not available. Additionally, CDC encouraged setting up tents or sleeping quarters with a minimum of 12 feet by 12 feet of space per person and providing sanitized restrooms and hand hygiene materials. is guidance was updated July 7, 2021, to strongly encourage vaccination and states that “in en- campments or other unsheltered locations, individuals who are fully vaccinated should follow CDC’s Recommendations for Fully Vaccinated People.” D. Current Legal Framework at State Departments of Transportation Executive Order 12898 is operationalized by USDOT into Department Order 5610.2(a). While neither the executive order nor the department order specically references unsheltered populations, a few states have interpreted the order to include these populations. Florida and Washington State mention or in- clude unsheltered and transient populations within their envi- ronmental justice planning, policy, and/or analysis. e Florida Department of Transportation (FDOT) con- ducts community impact assessments (CIAs), which are “an iterative process to evaluate the eects of a transportation ac- tion on a community and its quality of life.”44 CIAs consider the needs of the community and the existing social character rather than focusing solely on environmental concerns. For example, a highway widening in Florida during the early 2000s was set to displace a number of urban campers. FDOT directed its CIA team to assist in easing the transition for the campers in the area. e intention was to reduce the burden of displacement that had occurred with previous encampments near transporta- tion projects.45 However, current guidance from FDOT does not 42 Webinar Series on Environmental Justice, 2013, Federal High- way Administration, https://connectdot.connectsolutions.com/ p6jemor31o7/. (Last visited May 27, 2021.) 43 Interim Guidance on Unsheltered Homelessness and Coronavirus Disease 2019 (COVID-19) for Homeless Service Providers and Local O- cials. Updated July 7, 2021, Centers for Disease Control and Pre- vention. https://www.cdc.gov/coronavirus/2019-ncov/community/ homeless-shelters/unsheltered-homelessness.html#facility-encamp- ments. (Last visited May 27, 2021.) 44 Livability: Community Impact Assessment, Federal Highway Administration, https://www.wa.dot.gov/livability/cia/index.cfm. (Last visited May 27, 2021.) 45 Laurie Potier-Brown, and Gwen Pipkin. Urban Campers as a New Population for Community Impact Assessment: Case Study of US-301 in • Title 49 of the Code of Federal Regulations Part 21.9(b).33 • Title 23 of the Code of Federal Regulations 200.9(b)(4).34 • Uniform Act of 1970. USDOT Order 5610.2(a) “sets forth steps to prevent dispro- portionately high and adverse eects to minority or low-income population through Title VI analyses and environmental justice analyses conducted as part of Federal transportation planning and NEPA provisions.”35 e protections and considerations reected in the executive order are closely tied to Title VI of the 1964 Civil Rights Act, which states that “no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benets of, or be subjected to discrimination under any program or ac- tivity receiving Federal nancial assistance.”36 In 1987, the Civil Rights Restoration Act expanded the Title VI requirements to include “all programs and activities of federal-aid recipients, sub-recipients, and contractors, whether or not such programs and activities are federally funded.”37 is topic is closely tied to environmental justice protections, and while the executive order does not specically mention homelessness, some states have interpreted it as applying to unsheltered populations.38 FHWA considers unsheltered individuals as an environ- mental justice population if the agency or organization’s cir- cumstances warrant the consideration of unsheltered or tran- sient populations. While the Uniform Act only applies to legal residents, FHWA can provide advisory services and guidance to agencies dealing with encampments in the right-of-way or other public lands.39 e “Right-of-Way and Utility” section of FHWA’s Project Design and Development Manual notes that state laws and regulations apply when relocating people and property from the right-of-way.40 Additionally, FHWA’s Environmental Justice Reference Guide states that while the Uniform Act “does not include provisions for homeless and transient populations,” the agencies acquiring the right-of-way should “be aware of homeless and transient populations and may oer advisory services to those individuals at the agency’s discretion.”41 FHWA also produced a webinar that provides guidance on “potential approaches to address the 33 Reporting requirement regarding racial and ethnic data showing population beneting from federal funding. 34 Regarding the collection of statistical data regarding race, color, religion, sex, and national origin. 35 USDOT Order 5610.2(a) (May 2, 2012). 36 Title VI, 42 U.S.C. Section 2000d et seq. 37 Civil Rights Restoration Act of 1987, Pub. L. No. 100–259, 79 Stat. 28 (see 20 U.S.C. 1681). 38 Andree Tremoulet, Ellen Bassett, and Allison Moe. Homeless Encampments on Public Right-of-Way, A Planning and Best Practices Guide. (Center for Urban Studies, Portland State University, 2012.) 39 Federal Highway Administration. Federal Highway Administration Environmental Justice Reference Guide. 2015. 40 Federal Highway Administration. Right-of-Way and Utilities. 2018. 41 Federal Highway Administration. Environmental Jus- tice Reference Guide. 2015.

NCHRP LRD 87 11 specically reference unsheltered populations but does consider displacement under its sociocultural eects (SCE) evaluation.46 e Washington State Department of Transportation (WSDOT) instructs sta to work with the Region Environmen- tal Oce and the Oce of Equal Opportunity when they be- lieve or suspect a project will encounter an encampment under the environmental justice guidance. e intent is to develop a strategy for engagement with these populations.47 1. State Legal Frameworks for Unsheltered Encampments in the Right-of-Way is section describes the legal framework of the 50 states regarding unsheltered encampments in the right-of-way. Some states have codied practices regarding the use of the right-of- way, while others create policy using agency guidance docu- ments and manuals.48 Legal frameworks relating to encampments in the right-of- way are limited in regard to codied practices, but states have broader powers in terms of use and control of public land and rights-of-way. Seven states have statutes that specically refer- ence camping or encampments on public land and rights-of- way. Other states rely on statutes that relate to the control and use of the right-of-way as well as the removal of property and obstructions from such spaces. States can also reference pub- lic nuisance in their state statutes, while others have emergency shelter laws that require they provide services under certain conditions. e following sections provide a discussion of state statutes related to camping, removal of property or obstruc- tions, and control and use of the right-of-way. a. Statutes Relating to Camping in the Right-of-Way e researchers found statutes that prohibit camping in the right-of-way in the following states: • Florida • Nebraska • New Hampshire • South Carolina • Texas • Vermont • Wisconsin Florida expressly prohibits camping in “any portion of the right-of-way of the State Highway System that is within 100 feet Sarasota, Florida. Transportation Research Record, 1924, No. 1, 2005, 118–119. 46 SCE Evaluation Process. Florida Department of Transportation, Environmental Management Office. https://www.fdot.gov/envi- ronment/pubs/sce/sce1.shtm. (Last visited May 27, 2021.) 47 Environmental Justice Guidance, Washington State Depart- ment of Transportation, https://wsdot.wa.gov/engineering- standards/design-topics/environment/environmental-disciplines/ social-community/environmental-justice. (Last visited March 1, 2022.) 48 Beverly J. Storey, and John Habermann. NCHRP Synthesis 539: Landscape Development and Management Practices for Urban Freeway Roadsides. Transportation Research Board, Washington, D.C., 2019. Table D1. of a bridge, causeway, overpass, or ramp.”49 is would include portions of the State Highway System as well as non-system roads.50 Nebraska statutes state that camping is unlawful on “any state or county public highway, roadside area, park, or other property acquired for highway or roadside park pur- poses” except where campsites have been designated by the DOT, county, or other legal entity of government that owns the space.51 Camping is dened as “temporary lodging out of doors and presupposes the occupancy of a shelter designed or used for such purposes.”52 Any person camping in a prohibited area will be guilty of a Class V misdemeanor.53 New Hampshire has a similar provision that restricts the placement of tents, other camping devices, and sleeping on the ground “within the public right-of-way or on public property unless permission is received from the governing board of the governmental authority having jurisdiction over such public right-of-way or property.”54 South Carolina considers it “unlawful to camp within the right-of-way of a highway”; camp is dened as camping for 48 hours or more.55 is applies to the right-of-way of a high- way that is open to trac, and violation is a misdemeanor oense.56 Vermont restricts overnight camping in “any part of a public highway right-of-way, a public rest area associated with a public highway, or any public land not so designated by the agency, department, or municipality having control of same as an overnight camping area.”57 Wisconsin prohibits camping on highways in “wagons, tent or otherwise” on public highways or the adjacent land.58 e owners of the property or a local gov- ernment ocial can issue a notice to remove; if the notice is ignored, the person or persons will be guilty of a misdemeanor oense.59 Texas recently passed House Bill (HB) 1925, which creates a criminal oense related to prohibitions on camping in a pub- lic place and to a political subdivision’s designation of property for camping by homeless individuals.60 e bill passed and was signed by the governor, with the law going into eect Septem- ber 1, 2021. e law amends the Local Government Code and the Penal Code, making the act of camping in public places with- out express permission a criminal oense. e statute prohibits camping in public places and restricts the ability to establish camps for homeless individuals in certain areas, such as pub- lic parks. A local entity cannot pass an ordinance that restricts or discourages enforcement of this act. In addition to HB 1925, the Texas Transportation Code allows the Texas Department 49 Fla. Stat. § 337.406 (2020). 50 Id. 51 Neb. Rev. Stat. § 39-312 (2021). 52 Id. 53 Id. 54 N.H. Rev. Stat. Ann. § 236:58 (2020). 55 S.C. Code Ann. § 57-7-90 (2019). 56 Id. 57 Vt. Stat. Ann. tit. 19 § 1106 (2020). 58 Wis. Stat. § 86.025 (2021). 59 Id. 60 H.B. 1925, 87th Reg. Sess. (Tex. 2021).

12 NCHRP LRD 87 not present a danger, the DOT gives the owner 10 calendar days to remove the property.66 e research team found statutes for several states that spe- cically allow for the removal of obstructions. In some cases (e.g., Michigan or Virginia), statutes allow local agencies or municipalities to remove obstructions. e following states have statutes that allow the state DOT to remove obstructions: • Alabama • Colorado • Kansas • Maryland • Mississippi • Nevada • North Carolina • North Dakota • South Carolina. • Tennessee • Washington • West Virginia Colorado, North Carolina, and Tennessee allow law enforce- ment or the DOT to remove vehicles, cargo, debris, or other per- sonal property from the right-of-way if the property is creating an obstruction or hazard. Colorado species that the ocer or agency employee will not be responsible for any damage that occurs when moving the obstruction, but steps should be taken to reduce damage.67 North Carolina includes a similar provi- sion regarding liability for damage, but the statute specically refers to the State Highway System.68 Tennessee’s statute relates to controlled-access highways, and the object in question must be “creating an obstruction or hazard to trac because of its po- sitions in relation to the highway.”69 Kansas statutes state that it is unlawful to obstruct any portion of the right-of-way, which includes “in any manner with intent to prevent the free use thereof, or to make any holes therein, or to re- move any earth, gravel or rock therefrom or any part thereof, or in any manner to obstruct any ditch on the side of any such highway and thereby damage the same, to dump trash, debris, sewage, or any other material.”70 Any person found in violation of this statute will be guilty of a misdemeanor oense.71 Nevada also classies obstruction or damage to the highway as a misdemeanor oense. Obstacles or encroachments are dened in the section as “any objects, materials or facilities not owned by the county that are placed within a right-of-way of the county for storage purposes or decorative improvements for front lots that are not a part of a highway facility. e term does not include vehicles parked in a lawful manner within that right-of-way.”72 66 Tenn. Code § 54-5-136 (2021). 67 Colo. Rev. Stat. § 42-4-1803 (2019). 68 N.C. Gen. Stat. § 20-161 (2020). 69 Tenn. Code. Ann. § 54-16-113 (2020). 70 Kan. Stat. Ann. § 68-545 (2020). 71 Id. 72 Nev. Rev. Stat. § 405.230 (2021). of Transportation (TxDOT) to remove any personal property from the right-of-way or roadway of the State Highway System “if the department determines the property blocks the roadway or endangers public safety.”61 e statute does not require owner consent to move the property. b. Statutes Relating to Removal of Property or Obstructions from the Right-of-Way Statutes relating to the removal of property or obstructions from the right-of-way are limited, but states oen have provi- sions to remove property or clear obstructions from the right- of-way. e removal of property can provide broader powers to clear the right-of-way, while the removal of obstructions oen relates to the safety of the traveling public or the general ow of trac. In some cases (e.g., Texas), statutes combine the concepts by focusing on property that is an obstruction. e following states have regulations relating to the removal of property: • Oregon • Tennessee • Texas As discussed previously, Texas statutes allow TxDOT to re- move property from the right-of-way without the consent of the owner if it blocks the roadway or presents a danger to public safety.62 Oregon allows its DOT to remove “any sign or structure or thing erected or maintained” in the right-of-way of any state highway.63 In addition, Oregon has state statutes that allow for the removal of personal property on state highways and under state highway bridges if the property constitutes a public nui- sance. e DOT should provide written notice to the owner to remove the property from the state highway; if the property has not been removed aer 10 days, the DOT is authorized to institute any legal proceedings against the owner, and remove the personal property and store it. Aer 30 days, the property can be sold or disposed of.64 In terms of property under state highway bridges, the DOT must post a written notice in the area that is weather resistant, is conspicuous, and includes the dates posted and the date by which the property owner must remove the property, as well as when the property will be removed by the DOT. Notice must be given at least ve and no more than 19 days before removal. e statute provides further rules about the collection and storage of property; it must be kept for 30 days before being sold or disposed of, and the department may recoup the costs of removal from the property owner.65 Tennessee code authorizes the DOT to remove personal property encroachments from the right-of-way or highways. e DOT can “remove, store, sell and dispose” of such per- sonal property encroachments at the owner’s expense. If the encroachment presents a danger to the traveling public, the DOT can remove the property without prior notice. If it does 61 Tex. Transp. Code Ann. § 472.012 (2021). 62 Id. 63 Or. Rev. Stat. § 366.455 (2021). 64 Or. Rev. Stat. § 377.650 (2021). 65 Or. Rev. Stat. § 377.653 (2021).

NCHRP LRD 87 13 c. Statutes Relating to Control over the Right-of-Way Control over the right-of-way regarding access rules and regulations resides with state and local jurisdictions. A state DOT generally controls and maintains federal, state, and other contractually obligated right-of-way, sometimes referred to as the DOT-designated highway system. Within the statutory framework, DOTs set policies on the use of the right-of-way under their control as well as limit access through permitting or lease agreements. e following states have statutes that could restrict encampments in the right-of-way due to the DOT powers granted by statute: • Arizona • Hawaii • Indiana • Kansas • Minnesota • North Dakota • Virginia e Arizona Department of Transportation (ADOT) exer- cises exclusive control over the right-of-way within the ADOT- designated highway system per state statute, which allows the DOT to remove any encumbrances or obstructions from such land.85 In addition, placing or maintaining an obstruction or encroachment on a public highway is deemed a “petty oense” by the State of Arizona.86 e Hawaii DOT requires a permit from the director of transportation before a person or agency can “place, erect, leave, or store any structure, motor or other vehicle, equipment, or any other object wholly or partially with- in the right-of-way of any state highway.”87 e Indiana code allows for the removal of encroach- ments onto a “state highway, right-of-way, or other depart- ment property.”88 North Dakota prohibits encroachments onto the right-of-way.89 State statute allows the DOT to remove the encroachment; property other than motor vehicles that are le in the right-of-way for over 72 hours can be removed and then stored for 30 days at the nearest DOT facility.90 In addition to Kansas’s statute that allows for the removal of obstructions, Section 68-413b states that “all rights of way of state highways shall be used exclusively for public highway purposes.”91 e secretary of transportation can make excep- tions but also has the power to “remove unauthorized struc- tures, objects and facilities which are located upon the rights- of-way of state highways. Nothing herein shall be construed to aect the rights of public utilities and persons or associations maintaining facilities on state highway rights-of-way pursuant to law.”92 85 Ariz. Rev. Stat. § 48-2978 (2021). 86 Ariz. Rev. Stat. § 28-7053 (2021). 87 Haw. Rev. Stat. § 264-6 (2020). 88 Ind. Code § 8-23-5-1 (2019). 89 N.D. Cent. Code § 24-06-29 (2021). 90 Id. 91 Kan. Stat. § 68-413b (2020). 92 Id. Washington provides for the removal of obstructions if the DOT determines that it is necessary for the “convenience and safety of public travel.”73 Statutes include the procedure for notifying the owner of such obstruction and the requirement to move the obstruction from the right-of-way; any property not removed within the timeline provided by the DOT can be subject to conscation, removal sale, or destruction.74 North Dakota and South Carolina require the immediate removal of any obstruction in the highway or on a public street. Nevada species that the “overseer of highways” is in charge of the re- moval.75 South Carolina refers to the “overseer of the district” in terms of responsibility for removal.76 Alabama refers to the re- moval of ramps, platforms, and obstructions on the roadway that are “likely to endanger life, limb, or property.”77 Maryland code allows for the removal of obstructions “in, over, or under a public street, road, or alley” that is obstructing work on a system.78 e municipal authority should provide notice to the owner and in- struct as to when the obstruction needs to be removed.79 West Virginia’s code provides a detailed denition of ob- structions within Section 17-16-1, which can be broadly applied to any object that causes a nuisance to the public or other agen- cies.80 West Virginia requires the owner of the obstruction to remove it themselves, or a DOT employee can remove it and recover costs from the owner.81 Mississippi allows the DOT to determine its own rules and regulations “for the removal from the public rights-of-way of any form of obstruction, to cooperate in improving their ap- pearance, and to prescribe minimum clearance heights for seed conveyors, pipes, passageways or other structure of private or other ownership above the highways.”82 Several states use the term “public nuisance” in their codes that reference obstructions in the right-of-way. e following states include the term public nuisance in their statutes: • Arizona • Iowa • Oregon Iowa code states that “any person who places, or causes to be placed, any obstruction in a highway right-of-way…is deemed to have created a public nuisance.”83 e person may be forced to remove the obstruction at his or her own expense as well as pay a ne. Oregon statutes dene that any personal property le on a state highway is a public nuisance.84 73 Wash. Rev. Code § 47.32.010 (2020). 74 Id. 75 N.D. Cent. Code § 24-06-31 (2021). 76 S.C. Code § 57-7-220 (2021). 77 Ala. Code § 32-5-5 (2021). 78 Md. Code § 9-709 (2021). 79 Id. 80 W.Va. Code § 17-16-1 (2021). 81 W.Va. Code § 17-16-1:5 (2021). 82 Miss. Code Ann. § 65-1-8.2h (2019). 83 Iowa Code. § 318.6 (2021). 84 Or. Rev. Stat. § 377.650 (2021).

14 NCHRP LRD 87 such as comfort and the desire to keep their possessions, against the factors opposing the defense, including re hazards and the threat to rst responders, and found the defense of necessity not applicable to their specic circumstances. E. City Ordinances Targeting Unsheltered Encampments is section provides a review of local ordinances that re- late to unsheltered encampments or sleeping in public spaces. e research team chose 10 cities from across the United States based on the literature review, input from project panel mem- bers, geographic considerations, and survey responses. e se- lection of ordinances shows the dierent approaches and local regulations that govern this issue. Cities were chosen from the Northeast, Midwest, South, and West regions of the United States as follows and as shown in Figure 1. 1. Northeast Region a. City of Boston, Massachusetts e municipal code of Boston, Massachusetts, has a section that refers to the use of public grounds. e ordinance states that “no person shall, in or upon the Common, Public Garden, or other public grounds of the City, walk, stand, or sit upon the grass, or upon any land planted or prepared for planting or upon a fountain, monument, or statue, or a bandstand, wall, fence, or other structure, or within the basin of a pond otherwise than upon ice, or stand or lie upon a bench or sleep thereon…” unless expressly permitted by the mayor.99 is provides broad powers to the city to prohibit camping or use of public spaces that is not expressly permitted under city code and law. In addition, the municipal code prohibits loitering on city streets.100 One of the key issues for local governments in the state of Massachusetts is the lack of a clear denition of encampments and limited policies that handle the clearing of camps and re- moval of property. Seven Massachusetts cities are listed as “Continuums of Care” to ght homelessness by the U.S. Depart- ment of Housing and Human Development, but only one, New Bedford, has a written policy or procedure for assessing an en- campment.101 is creates legal risk for authorities and harms the displaced unsheltered individuals who oen lose property and a place to sleep when these camps are cleared. For example, the Boston Police Department conducted Operation Clean Sweep on a stretch south of downtown where unsheltered individuals oen slept. No advance notice was provided of the operation to unsheltered individuals in the area, and many individuals had their property thrown away since there is no procedure in place for the storage and return or collection of removed prop- 99 Boston, Mass., Municipal Code § 16-19.1 (1977). 100 Boston, Mass., Municipal Code § 16-12.2 (1975). 101 What Is an Encampment? Don’t Ask Massachusetts, CNS Homeless, https://homeless.cnsmaryland.org/2020/07/13/as-the-wealthy-move-in- homeless-people-are-pushed-out/, July 13, 2020. Minnesota restricts the usage of the right-of-way to specic purposes. Road authorities have the right to “take down, re- move, or destroy any advertisement, building, or structure in or upon any highway.”93 e Virginia Department of Transportation (VDOT) pro- hibits the use or occupation of the right-of-way of “any highway for any purpose except travel.” However, VDOT has the power to authorize the use of the right-of-way where allowed by law.94 Consideration of encampments by state statute tends to be limited; seven states do place restrictions, in some form, on camping in public places or the right-of-way, but many states just have broader provisions that prohibit individuals from using the right-of-way in a certain manner. Penalties for misuse of the right-of-way range from nes to misdemeanor oenses. Key issues for state DOTs include: • Limited legal or statutory guidance on the denition of an encampment. • Statutory authority oen not referencing sleeping or camp- ing, which complicates responses to encampments in the right-of-way. • A lack of detailed guidance on the handling, storage, and disposal of personal property found within the right-of-way. 2. State Use of Legal Concepts Related to Unsheltered Encampments in the Right-of-Way In addition to the specic statutes and regulations detailed above, legal concepts such as criminal trespass, promissory estoppel, and necessity have been used to argue for and against the removal of encampments for people experiencing home- lessness. In City of Des Moines v. Webster, the court considered the unsheltered individuals’ necessity defense to the removal of their encampment under a bridge.95 e appellees based their necessity argument on the Restatement (Second) of Torts, Sec- tion 197, stating that “one is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to the actor, or his land or chattel.”96 e appellees referred to an overcrowded shelter and the lack of suitable housing creating imminent harm during the winter months. e lower court cited several cases dealing with unsheltered persons asserting the defense of necessity and ruled in favor of the unsheltered individuals.97 However, on appeal, the court further articulated that the privilege must be “exer- cised at a reasonable time and in a reasonable manner.”98 e court weighed the factors supporting the defense of necessity, 93 Minn. Stat. § 160.27 (2021). 94 24 Va. Admin. Code § 30-21-30 (2021). 95 City of Des Moines v. Webster, 861 N.W.2d 878 (Iowa App. 2014). 96 Restatement (Second) of Torts § 197 (1966). 97 See Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006) later vacated; Tobe v. City of Santa Ana, 9 Cal. 4th 1069, 40 Cal. Rptr. 2d 402,892 P.2d 1145 (1995); and In re Eichorn, 69 Cal. App. 4th 382, 81 Cal. Rptr. 2d 535 (1998). 98 Court cited Benamon v. Soo Line Railroad Co., 294 Ill. App. 3d 85, 228 Ill.Dec. 494, 689 N.E.2d 366, 370 (1997).

NCHRP LRD 87 15 erty.102 Boston began draing a procedure for encampments in October of 2019, but the resources of the Oce of Health and Human Services were redirected due to COVID-19, so naliz- ing the protocol has been postponed.103 b. City of Manchester, New Hampshire Ordinances in Manchester, New Hampshire, dene rules re- lated to public sleeping and camping in public spaces. Both of these ordinances are listed in Chapter 130 General Oenses.104 Section 130.01 refers to public lounging or sleeping and pro- hibits sleeping or lounging upon “any of the commons or squares of the city.” Subsection B prohibits sitting, standing, or lounging in doors or passageways aer the owner or police ocer has re- quested the person to move. Section 130.13 prohibits camping in “any of the streets, sidewalks, square or any other public place, excepting parks as governed by Chapter 96, as a camping place absent prior written permission from the Board of Mayor and Aldermen or its designee.” Camping is indicated by the storage of belongings, cooking of food, and/or use of a tent or tarp or other temporary structure to create shelter. Manchester police can only enforce this ordinance when the person is on public property and there is an available overnight shelter. A citation cannot be given if no alternative shelter is available at that time. 2. Midwest Region a. City of Detroit, Michigan e city code of Detroit, Michigan, prohibits overnight camp- ing in parks and other specic public places.105 Public places have a broad denition that includes “open places, squares, 102 As the Wealthy Move in, Homeless People Are Pushed Out, CNS Homeless, https://homeless.cnsmaryland.org/2020/07/13/as-the-wealthy- move-in-homeless-people-are-pushed-out/, July 13, 2020. 103 What Is an Encampment? Don’t Ask Massachusetts, CNS Homeless, https://homeless.cnsmaryland.org/2020/07/13/as-the-wealthy-move-in- homeless-people-are-pushed-out/, July 13, 2020. 104 Manchester, N.H., Code of Ordinances § 130 (2021). 105 Detroit, Mich., City Code § 33-1-32 (2015). - 25 - Figure 1. City ordinances reviewed. 1. ortheast Region a. City of Boston, Massachusetts The municipal code of Boston, Massachusetts, has a section that refers to the use of public g ounds. The ordinance states that “no person shall, in or upon the Common, Public Garden, or other public grounds of the City, walk, stand, or sit upon the grass, or upon any land planted or prepared for planting or upon a fountain, monument, or statue, or a bandstand, wall, fence, or other structure, or wit in the basin of a pond otherwise than upon ice, or stand or lie upon a bench or sleep thereon…” unless expressly permitted by the mayor.99 This provides broad powers to the city to prohibit camping or use of public spaces that is not expressly permitted under city code and law. In addition, the municipal code prohibits loitering on city streets.100 One of the key issues for local governments in the state of Massachusetts is the lack of a clear definition of encampments and limited policies that handle the clearing of camps and removal of property. Seven Massachusetts cities are listed as “Continuums of Care” to fight homelessne s by the U.S. Department of Housing and Human Development, but only one, New Bedford, has a written policy or procedure for assessing an encampment.101 This creates legal risk for authorities and harms the displaced unsheltered individuals who often lose property and a place to sleep when these camps are cleared. For example, the Boston Police Department conducted Operation Clean Sweep on a stretch south of downtown where unsheltered individuals often slept. No advance notice was provided of the operation to unsheltered individuals in the area, an many individuals had their property thrown away since there is no 99 BOSTON, MASS., MUNICIPAL CODE § 16-19.1 (1977). 100 BOSTON, MASS., MUNICIPAL CODE § 16-12.2 (1975). 101 What Is an Encampment? Don’t Ask Massachusetts, CNS HOMELESS, https://homeless.cnsmaryland.org/2020/07/13/as-the-wealthy-move-in-homeless-people-are-pushed- out/, July 13, 2020. Figure 1. City ordinances reviewed. lands under water and other open space or recreational areas” that are owned or under the control of the city.106 In addition to the public places and parks, amping is also prohibited on any boulevard; boulevards are the roadways dened under Section 33-1-2. Section 33-1-32 does not ban overnight camping on all streets, sidewalks, or right-of-way, but Section 43-8-2 prohibits encroachments n any uch space. e encroachment can be an object that presents an obstruction or any type of structure. Although these regulations would allow Detroit to remove any encampment that is set up on a street, park, or other public place as dened under city code, he city has developed guidance, in partnership with the Detroit Homelessness Response System, on handling unsheltered populations.107 e guidance estab- lishes key guiding principles: • “People experiencing homelessness have the same civil rights as housed residents. • “All unsheltered individuals, like all City residents, will be treated with dignity and respect. • “All relocations of unsheltered individuals are done in col- laboration with appropriate partners and include resource oerings where possible.” e city reached out to a number of community organiza- tions and city departments when developing the guidance, which emphasizes the health and safety of all Detroit residents. A process was developed that does not always lead to the reloca- tion of all unsheltered individuals but only those that may be at risk in terms of health and safety, or when an encampment presents a health and safety risk. e process outlines outreach, stakeholder engagement, and communication standards as well as the requirement to provide an overview of the process when relocation is necessary. 106 Detroit, Mich., City Code § 33-1-1 (2018). 107 City of Detroit, Detroit Homelessness Response System. Response to Address Health and Safety Concerns among Unsheltered Populations, Policy and Procedures. Adopted Dec. 2020.

16 NCHRP LRD 87 b. Marion County (Indianapolis), Indiana In February 2021, the city council of Indianapolis–Marion County passed a general ordinance regarding protections for the unsheltered.108 e ordinance altered the current code relat- ing to encampments and limits the closing of encampments to emergency situations, such as when a camp presents a public health hazard or when there is a threat to public safety through the potential for concealed explosives. If such a hazard or threat exists, the Oce of Public Health and Safety (OPHS) for Marion County has the authority to close any public property or public right-of-way temporarily or permanently to camps. Section 231- 507 states that “…neither camping nor storing personal prop- erty is permitted in a manner that wholly or partially obstructs pedestrian trac on any sidewalk, street, or other public right- of-way.”109 e ordinance also species the notication require- ments for closing any camp and names organizations that must be involved in the outreach eorts to those camping in the area. No individuals may be moved unless sucient housing or shel- ter space is available to accommodate them. Guidance is pro- vided on permanent camp closures in areas where they present an ongoing risk to public health or safety or an obstruction. In addition, the ordinance directed OPHS to study the “feasibility and cost of establishing one or more indoor or outdoor safe camping sites for the benet of residents of Indianapolis expe- riencing homelessness.” e report was due to the city council September 1, 2021.110 c. City of Lawrence, Kansas In December 2019, the American Civil Liberties Union of Kansas wrote to the City of Lawrence, Kansas, urging it to “cease all enforcement of the city’s camping ordinance against house- less individuals, including the automatic seizure and destruc- tion of personal property without due process of law.”111 e ordinance in place in 2019 made it a criminal oense to sleep or store personal belongings on public property. e ordinance was enforced even when there was no shelter space available. In July 2020, citing Martin v. City of Boise, the City Commission passed Ordinance 9754, which provides an exemption from the prohibition against illegal camping when there is no overnight shelter available. e current anti-camping ordinance can be found in Chapter 14 of the City Code Article 4 Oenses against Peace and Good Order. 112 e illegal camping ordinances de- ne overnight shelter as “a public or private shelter, with avail- 108 Indianapolis, Ind., Revised Code of the Consolidated City and County § 231–501, 502, 503, 504, 505, 506, 507, 508 (2021). 109 Indianapolis, Ind., Revised Code of the Consolidated City and County § 231–507 (2021). 110 Indianapolis, Ind., Revised Code of the Consolidated City and County § 231–505 (2021). 111 Letter to City of Lawrence re: Anti-camping Ordinance. ACLU Kansas, https://www.aclukansas.org/en/letter-city-lawrence-re-anti- camping-ordinance. (Last visited Aug. 4, 2021.) 112 Lawrence, Kan., Code of the City of Lawrence, Kansas § 14-417 (2020). able overnight space, that is open to an individual or family unit experiencing homelessness, at no charge.”113 In October 2020, the Lawrence Community Shelter was forced to reduce capacity due to COVID-19.114 With shelter capacity less than half the usual available space and health risks rising, unocial campsites along the Kansas River and local train tracks were of greater concern. In response, the city granted a special use permit for up to 180 days allowing for a sanctioned campsite with tents for 20–25 people.115 e campsite would also have three trailers containing restrooms and showers.116 3. South Region a. City of Atlanta, Georgia e City of Atlanta has a local ordinance under Section 106- 12 that prohibits urban camping and the improper use of public places.117 e restrictions on urban camping relate to the street, sidewalk, or other rights-of-way, including those under bridges. Camping is dened as the use of any of those public spaces for the purposes of living accommodations or sleeping activities. e ordinance provides broad rules against laying down bed- dings, erecting a shelter, lighting res, or even storing personal belongings. In addition, the ordinance includes a loitering clause that prohibits individuals from interfering with the ingress and egress from buildings, driveways, streets, alleys, or other private property. is interference can be sitting, standing, or blocking with personal property. b. City of Austin, Texas e City of Austin has undergone several changes in recent years relating to public camping and encampments for people experiencing homelessness. Previously, camping in public spaces was banned by local ordinance; however, in July 2019, city leaders reversed the ban. is reversal allowed for camp- ing in certain areas of the city. In May 2021, Proposition B was placed on the ballot to reinstate that camping, including “sit- ting, lying, or sleeping outdoors in certain public areas,” with- out a permit was a criminal oense. Proposition B passed with 57 percent of voters in favor, reinstating the public camping ban in the city. In addition to making sleeping and/or camping in certain public areas a criminal oense, Proposition B included a provision against solicitation in an area of the city including 113 Id. 114 Kansas Reports Nearly 64,000 COVID-19 Cases, Including 723 Virus-Related Deaths, Kansas Public Radio, University of Kansas, https://kansaspublicradio.org/kpr-news/headlines-thursday- october-8-2020. (Last visited Feb. 24, 2022.) 115 City of Lawrence. City Commission Meeting, Oct. 6, 2020. https://lawrenceks.civicweb.net/Portal/MeetingInformation. aspx?Org=Cal&Id=340. (Last visited Feb. 24, 2022.) 116 Betsy Webster, City of Lawrence Approves Sanctioned Campsite for Homeless in City Park, KCTV5, Oct. 6, 2020. https://www.kctv5. com/coronavirus/city-of-lawrence-approves-sanctioned-campsite-for- homeless-in-city-park/art icle_c407bef2-0842-11eb-abed- 17d908239c2f.html. (Last visited Feb. 24, 2022.) 117 Atlanta, Ga., Code of Ordinances § 106-12 (2017).

NCHRP LRD 87 17 individuals to move from the public right-of-way because they are creating an obstruction. Section 38-86.1 prohibits sitting or lying down between the hours of 7:00 a.m. and 9:00 p.m. in the Denver Downtown Business Improvement District.123 e ordinance does restrict ocers from presenting a citation until they have ascertained whether the individual needs medical or human services assis- tance. Section 38-86.2 specically relates to camping on both public and private property when it is unauthorized.124 Camping on private property is only allowed with the express permission of the property owner. Camping on public property is only al- lowed in areas that have been specically designated for camp- ing by the owner, agency, or person in control of that property. e City of Denver denes “camp” as “to reside or dwell tempo- rarily in a place, with shelter,” and shelter can include “any tent, tarpaulin, lean-to, sleeping bag, bedroll, blankets, or any form of cover or protection from the elements other than clothing.”125 “Reside or dwell” refers to activities that can include eating, sleeping, or storing personal possessions.126 As with Section 38- 86.1, ocers cannot give a citation unless they have ascertained that the individual does not need medical or human services assistance. If an ocer determines that assistance is required, the ocer should make “reasonable eorts” to contact a human services outreach worker who will provide an assessment. If the ocer cannot reach the human services outreach worker, or if the human services outreach worker determines that assistance is not needed, or the individual refuses to cooperate, the ocer can proceed with citing or arresting the individual. e City of Denver has struggled with unsheltered encamp- ments over the past few years, and in 2016, a class-action lawsuit was led against the city for its practices relating to cleaning up encampments and discarding personal property.127 A settlement was reached in 2016 that led to additional notice requirements for some types of encampment cleanups. e agreement did not change the Denver Police Department’s authority to enforce its camping ordinance or other ordinances relating to health and safety, but it did alter the procedure for handling personal property. e settlement required a 48-hour notice period for areas outside “regular cleaning” spaces and seven-day notice for large-scale encampment removal. However, less than seven-day notice can be provided for encampments that threaten public health or safety.128 e agreement also increased the types of personal property that Denver must store for collection and re- quired that the city store IDs indenitely (or until their expira- tion date) and prescription medications until their expiration date. Other terms of the settlement were related to the provi- sion of public storage lockers, trash receptacles, portable toilets, 123 Denver, Colo., Code of Ordinances § 38–86.1 (2005). 124 Denver, Colo., Code of Ordinances § 38–86.2 (2020). 125 Id. 126 Marley Bordovsky, Regulating Homeless Encampments. Denver, 2020. 127 Denver Homeless Out Loud, et al. v. Denver, Colorado, et al., No. 20-cv-02985-WJM-SKC (D. Colo. 2020). 128 Regulating Homeless Encampments, supra note 126. the University of Texas campus.118 e ordinance went into ef- fect on May 11, 2021. Although many of the large encampments within the City of Austin are located on TxDOT rights-of-way, TxDOT has stated that it has no plans to clear the encampments and that “under-bridge clean-ups are the responsibility of the City of Austin.”119 e City of Austin developed a phased approach to imple- menting the ordinance; there are four phases, with Phase 1 be- ginning on May 11, 2021, and Phase 4 beginning on August 8, 2021. e plan was developed collaboratively with several other city departments and emphasized “safely and humanely help- ing people experiencing homelessness comply with the new ordinances.”120 Phase 1 ran from May 11, 2021, to June 12, 2021, and focused on community engagement and education. e Austin Police Department (APD) provided resources and verbal warnings to those camping, except when there was an imminent threat to health or safety. Phase 2, from June 13, 2021, to July 10, 2021, consisted of written warnings to individuals camping and allowed for the issuance of a citation if the individual had previ- ously been warned. Phase 3 began on July 11, 2021, and ended on August 7, 2021; if a written warning had already been issued, APD would issue a citation. Arrests would only occur in situa- tions where the individual(s) refused to vacate and the area was deemed dangerous for the public. Phase 4 is the nal stage and puts the ordinance into full eect; the Phase 4 start date was August 8, 2021. APD will issue a citation, and if the individual refuses to vacate the area, APD will arrest the individual for vio- lating the camping ordinance. e city has stated that it will take all reasonable steps to avoid separating individuals from their property and is developing a procedure for retaining and storing personal property on a temporary basis.121 4. West Region a. City of Denver, Colorado e Denver Code of Ordinances includes prohibitions on sitting or lying down in the public right-of-way as well as or- dinances that refer to the obstruction of streets and camping. ese ordinances are listed under Article IV, Oenses against Public Order and Safety. Section 38-86 makes it unlawful for a person to obstruct a “highway, street, sidewalk, railway, waterway, building entrance, elevator, aisle, stairway, or hall- way to which the public or a substantial group of the public has access.”122 Obstruct is dened as “rendering impassable” or making passage inconvenient or hazardous. e ordinance also states that it is unlawful to ignore a peace ocer that requests 118 Austin, Tex., Code of Ordinances § 9-4-11, 9-4-13, 9-4-14 (2021). 119 Garnham, J. P. Austin’s Camping Ban Returns Tuesday, but It’s Not Clear When—or How—It Will Be Enforced. The Texas Tribune, May 6, 2021. 120 Proposition B and Homeless in Austin. austintexas.gov. City of Austin, https://austintexas.gov/propb-homeless. (Last visited July 29, 2021.) 121 Id. 122 Denver, Colo., Code of Ordinances § 38–86 (2005).

18 NCHRP LRD 87 and needle dispensaries, as well as expansion of current work programs that support unsheltered individuals. In an eort to address the issue, Denver launched the Supportive Housing Social Impact Bond (Denver SIB) initiative. e Denver SIB took a housing-rst approach that intended to reduce the bur- den on city services, such as health and police departments, as well as provide stability to those who were unsheltered. Denver partnered with the Urban Institute to measure the success of the housing-rst approach versus the traditional care services provided.129 Denver also experienced a constitutional challenge to its camping ordinance that argued it violated the Equal Protection Clause, Due Process Clause, Eighth Amendment, and Ameri- cans with Disabilities Act. A district court judge ruled the ordi- nance constitutional due to the fact that shelter space had been provided to the individual and so did not meet the conditions established in Martin v. City of Boise.130 e City of Denver con- tinues to enforce the ordinance aer a pause during COVID-19. During the pandemic, the city tried to clean the encampments without moving people and established guidelines to protect the individuals from COVID-19. Regular testing and increased out- reach eorts were conducted, as well as utilizing motel rooms for COVID-positive and high-risk individuals.131 As cleanups resume, the city is reestablishing the necessary procedures and resuming partnerships between the public health department, law enforcement, and homeless assistance services. In addition, the mayor of Denver agreed to support a temporary sanctioned space for unsheltered persons during the pandemic. e out- door space is managed by the Colorado Village Collaborative and has space for 50 tents. e City and County of Denver, along with faith-based organizations, are providing nancial support. b. City of Aurora, Colorado e City of Aurora, Colorado, located east of Denver, at- tempted to pass an ordinance similar to Denver’s that would ban urban camping on public and private property where the owner has not provided permission to camp. e ordinance failed to pass at two City Council votes in August 2021, both ending in a tie.132 With the second vote resulting in a tie, the ordinance can- not be brought to a vote for at least six months.133 e ordinance would have required that the city provide 72 hours’ notice to 129 Mary K. Cunningham, et al., Breaking the Homelessness-Jail Cycle with Housing First: Results from the Denver Supportive Housing Social Impact Bond Initiative. Urban Institute. https://www.urban. org/research/publication/breaking-homelessness-jail-cycle-housing- rst-results-denver-supportive-housing-social-impact-bond-initiative. (Last visited Aug. 18, 2021.) 130 Tony Flesor, Denver Finds Camping Ban Constitutional. Law Week Colorado, Sept. 14, 2020. 131 Regulating Homeless Encampments, supra note 126. 132 John Aguilar, Aurora Says No to a Ban on Urban Camping. The Denver Post. https://www.denverpost.com/2021/08/10/aurora- homeless-camping-ban/. (Last visited Aug. 13, 2021.) 133 Jennifer McRae, Camping Ban Ordinance Fails to Pass in Aurora City Council. CBS Denver. https://denver.cbslocal.com/2021/08/24/ camping-ban-mike-coman-aurora-city-council/. (Last visited Jan. 6, 2022.) move before issuing a ticket as well as ensure that there is a place to go before moving the person(s). According to a 2020 report, Aurora has a signicant gap between shelter space availability and the number of individuals experiencing homelessness. e city conducted outreach during 2021 to understand the views of its residents on the dierent shelter and service options for unhoused individuals.134 e options included pallet homes, safe outdoor spaces for camping, tiny homes, safe parking for those residing in their vehicle, and the provision of restroom and shower trailers. c. City of San Francisco, California In 2016, San Francisco passed Local Measure Q prohibit- ing camping on city sidewalks. Proposition Q amended the San Francisco Police Code Section 2.169 to allow for the dispersal of encampments, provided that adequate shelter space, hous- ing, or homeless services are available and only aer 24 hours’ notice has been provided.135 e section is enforceable by the Department of Public Works, Department of Public Health, and Department of Homelessness and Supportive Housing. e San Francisco Police Department can provide assistance to those departments in clearing the encampments. Written notice must be provided before the encampment is cleared, which should in- clude information on retrieval of personal property if necessary. In addition to Section 2.169, the San Francisco Police Depart- ment utilizes the California Penal Code Section 370 as well as S.F. Police Code Sections 22–24 that relate to the obstruction of streets or sidewalks.136 Section 370 prohibits obstructions of free passage and use of streets, and California Penal Code Sec- tion 647c makes “willfully or maliciously obstructing the free movement of any person on any street, sidewalk or public place” a misdemeanor.137 S.F. Police Code Sections 22–24 include a similar provision that prohibits the willful or substantial ob- struction of “the free passage of any person or persons on any street, sidewalk, passageway, or other public place.”138 e rst oense is an infraction, while the second oense is classied as a misdemeanor. e City of San Francisco has several departments and teams that coordinate to respond to issues with encampments and un- sheltered individuals. e city response system includes the San Francisco Homeless Outreach Team (SFHOT), the Street Crisis Response Team (SCRT), and the city’s Healthy Streets Operation Center (HSOC).139 SFHOT works to engage vulnerable unshel- tered individuals by connecting them with a shelter, housing, or 134 Addressing Homelessness: Alternative Sheltering Options. Engage Aurora. https://engageaurora.org/homelessness. (Last visited Aug. 13, 2021.) 135 San Francisco, Cal., Police Code § 2.169 (2016). 136 San Francisco Police Department, Bulletin 18-088, Legal Enforcement Options for Addressing Illegal Encampments, May 2, 2018. 137 Cal. Penal Code § 370 (1874) and Cal. Penal Code § 647c (2021). 138 San Francisco, Cal., Police Code § 22–24 (1979). 139 City Response System. Department of Homelessness and Support- ive Housing. City of San Francisco https://hsh.sfgov.org/services/ public-guidance/city-response-system/. (Last visited July 29, 2021.)