CITY OF CHEWELAH: Council will look at nuisance, park issues

(JARED ARNOLD/Chewelah Independent)

CONCERN OVER CITY PARK: Citizen concerns about homeless encampment prompt discussion…

A number of citizen complaints and concerns about a persistent homeless encampment in the city’s main park led the council to a lengthy discussion about the city’s options to address it and the legal challenges it may face as it goes down the path of enforcement. Public commentors at the council meeting on August 5 urged the city to enforce existing nuisance ordinances to address the situation and to take a closer look at a federal district court ruling that addressed use of public property by homeless people, while the city’s attorney cautioned the council to be careful when listening to “armchair analyses” of the case ruling.

The case, Martin v City of Boise, began in 2009 when six individuals filed a complaint against the city of Boise after being cited for violating the city’s ordinances on camping and sleeping in public spaces, alleging that enforcement of the rules violated the 8th Amendment’s cruel and unusual punishment clause. Eventually, the U.S. 9th Circuit Court of Appeals ruled in 2019 that homeless people cannot be punished for sleeping outside on public property in the absence of adequate alternatives. Since then, the ruling has impacted cities within the 9th Circuit that are trying to solve homeless issues.

“The decision is unworkable in practice and is already sowing confusion across the 9th Circuit and tying the hands of cities that are being forced to suspend enforcement of their public camping laws,” Theane Evangelis, Boise’s attorney, said in a statement in 2019 after the ruling.

Chewelah resident Denece Caton kicked off the public comments accusing the city management and council of fear-driven inaction that has led to an unsafe situation in the park.

“By your inaction, you’ve allowed the takeover of an entire corner of the park, the main restrooms, multiple picnic tables for continued 24-7 personal use, fear of pretty vicious dogs, walking on a public sidewalk, hijacking parking spaces including the one they sit on and one on each side. You’re enabling these folks to continue living like this, not helping them help themselves. We’re fed up with the inaction. Your hands are not tied when it comes to Martin v Boise. Thousands of people pass or use this park for a rest stop,” Caton told the council.

“Is this the definition of a creative arts district, or the gateway to the Colville National Forest, or a stopover to 49 Degrees North?” she asked.

Caton weighed in with her interpretation of the court ruling.

“I want to reiterate what the Ninth court ruling states, very well worded: ‘We in no way dictate to the city that it must allow anyone who wishes to sit, lie or sleep on the streets at any time and at any place. Only absolute bans violate the eighth amendment.’ I think that’s a very important statement right there. There is no complete ban. You have ordinances in place; they’re not being enforced. You need to find some ordinances that work, that will alleviate this problem completely instead of brushing it under the rug and hoping it just goes away,” Caton concluded.

Suzanne Robinson agreed with Caton and explained to the council her disappointment about the park.

“I moved back here after 40 years. One of the reasons I chose Chewelah is the cute, little park which I am now afraid to go to by myself,” Robinson said. “The park has been a huge disappointment to me. I would really advise the city to not be so risk-averse as to turn away from what you’re allowing at this time. Because that’s exactly what’s happening, you’re allowing it due to your fear of being sued.”

Vickie Greer related her experience with dogs in the encampment and urged the council to solve the problem.

“I just wish we could get this problem resolved sooner rather than later. We don’t use the park at all anymore because of the dogs, not so much because of the people, but the last time I went down the other day to the bowling alley parking lot [to meet somebody], those dogs were almost moving the van to come across the street to me and the lady I was meeting. It was very unpleasant,” Greer complained.

Councilwoman Ashley Grubb had prepared a slideshow presentation entitled “Park Committee Proposals: Addressing issues of our community members and proposing solutions” for the council to consider.

Grubb started by defining the benefits of parks including encouraging physical activity and reducing healthcare costs; strengthening the attraction for new families to move in; increasing community engagement; allowing for a safe and fun play area for neighboring kids; encouraging social interaction; and stimulating the local economy.

“A few of those [benefits] are still occurring but I feel like there are a lot of barriers that have recently, in the last few months, have occurred that don’t allow that opportunity for a lot of our community members. So, I’m here tonight to voice some ideas and options so that everyone feels more safe and can fully enjoy the utilization of what parks were designed to do,” Grubb said.

The issues in the park that Grubb and her committee identified include unsafe and unsanitary restroom conditions for all guests; unfavorable parking for those who wish to enjoy the park amenities; picnic tables; lack of enforcement of dogs in the park; and obscene amounts of garbage that is an eyesore, unsafe and encourages wildlife.

The committee made several recommendations to alleviate the identified problems including closing the existing restrooms and using temporary outhouses; three-hour parking limits at all parks; picnic table design that would discourage sleeping on them; more signage to indicate the dog policy; and reduce the number of garbage containers and place them in high-demand areas.

City Attorney Mike Waters started the council conversation about the homeless encampment with his analysis of recent court rulings and governor proclamations and how they apply to the situation in Chewelah’s city park. He also strongly encouraged the council to review existing ordinances and to start enforcing them consistently.

“Martin v Boise basically boils down to this: You cannot prosecute somebody just for sleeping or lying or, basically, being homeless when there is no bed in a shelter to take them to. That does not mean you can’t enforce other rules. To be quite honest, I don’t think I’m saying anything unusual, this city has not enforced the rules for a very long time in a very large number of areas. That was part of what the Nuisance Committee was looking at as much a year ago or more, but that sorta withered for whatever reason. But the city can absolutely enforce the rules that it has on the books as long as it does so consistently and evenhandedly,” Waters began.

“The council has got a bit of a job ahead of it, quite honestly, to try to decide what the rules should be across the city, how they’re going to be enforced, probably citations much like the moving violations that are enforced by [the county prosecutor],” he explained.

“Effectively, the Boise decision says we cannot criminalize pure homelessness,” Waters said. “What the decision said is you cannot criminalize homelessness so long as they have nowhere else to go. ‘Nowhere else’ meaning, and they were quite careful about defining ‘nowhere else’ as a bed.”

Waters addressed suggestions that the city should simply move the camp to another, out-of-sight location.

“There’s some arguments out there that they can go to the campground and that counts as somewhere else to go. That is not a bed. The campground is just somewhere else in the park,” he opined.

“The issue is going to be shelters,” Waters stated. “Now, if there is help from charities in the county, like maybe Rural Resources, if they have an option to get somebody somewhere else to go, I suspect there’s a very strong argument that that counts, and that they don’t get to just refuse it because they don’t want it. But that would have to involve some kind of consistent coordination between the city and whoever is providing that.”

Waters also cautioned the council to not put a lot of stock in legal opinions made by ‘armchair’ commentators.

“Be careful of the armchair analyses of [Martin v Boise]. It’s a lot more complicated than people want it to be,” he said before talking about two other recent decisions.
“The second decision that just came out, came out of Division 1 of the court of appeals, which is the Western portion of the state and technically doesn’t apply to us, but I think it would be very wise for us to treat it as though it does apply. If someone is living out of their car, the court has ruled that the car counts as a homestead, meaning you cannot attach undue fines to it. You cannot attach undue liens to it. So, if someone violates other statutes or ordinances to the point that they are going to get towed, then they can be towed but we can’t charge them more than a [nominal fee] to recover the car or vehicle. And my suspicion is very strong that we could not charge even to recover costs, given the amount of a towing cost.” he said about that case out of King County.

“Third, shockingly enough, is the COVID situation and the governor’s proclamations. The governor’s got a proclamation that has now been amended three times [on evictions]. Those evictions are very broad and what they basically say is no landowner may threaten to remove, or remove, or give notice to, or anything else to someone that is living on their land. The very broad interpretation of that is the city is a landowner and they’re living on city land,” Waters explained. “The COVID proclamation is something that will have to be dealt with. The only exceptions to the governor’s proclamation, which I believe goes until October, is if there’s a threat to the health or safety of the individuals or others, which I think is potentially quite valid given our current situation. The other one is if the owner plans to sell or move into [the property] as their primary residence, which would obviously not apply to the city here today.”

“The issue with ticketing and enforcement of the nuisance ordinances, whether it be littering, whether it be noise, whether it be dogs in the park, dogs on the run, any other things. Those, in my opinion, are available to the council, but I would strongly recommend that whatever action the council takes be consistent and widespread. And, again, right or wrong, it’s important to point out that we haven’t enforced any of this for years,” Waters said in concluding his analysis.

Councilman Evan Schalock was clearly discouraged by the attorney’s take on the situation but Waters reiterated that the city does have options to address the issues.

“So, not to be the pessimist, but am I basically hearing from attorney Waters that we really don’t have a whole lot of options?” Schalock asked.

“No, that’s not what I’m saying. I think the options are not criminal prosecution for sleeping there,” Waters responded. “I think the council has options for starting to enforce some of the things that are on the books, such as the littering, if there’s aggressive dogs causing issues with people.

“One of the simplest things the council can do is adopt some parking restrictions and ticket accordingly. But right now the way things are, they’re not breaking a lot of laws or ordinances, and whatever they are breaking we haven’t enforced for years. So this has kinda brought this to a head. I think it’s absolutely reasonable for the council to decide that we are finally going to get this done and decide on how to enforce the nuisance ordinances. That is the primary vehicle here. The city, in my opinion, needs to start enforcing its rules,” Waters suggested.

Councilman Payton Norvell expressed frustration with a perceived lack of enforcement against existing code violations.

“It seems to me like we have plenty of code violations that they’re doing, especially our public nuisances ordinance, it just doesn’t seem like it’s being enforced. I don’t see what else we need at the moment,” Payton Norvell stated.

“We have issued citations, a few. Which either get paid or don’t get enforced when they get up to the county [prosecutor]. So we can write citations all day long,” Mayor Dorothy Knauss responded, suggesting that citations have little effect.

“Mr. Waters, assuming citations don’t have any effect, is there any way to go further to have an effect on current situations?” Payton Norvell inquired.

“Extensive discussions with [Municipal Research Service Center] and others on this, despite the conventional wisdom, there aren’t cities out there that are just solving this problem. Martin v Boise was a stick of dynamite into government’s ability to enforce these types of ordinances. Most cities have been, to the extent they’re addressing it, have been creating beds. I suspect, for a number of reasons, that may not be the way to go here,” Waters answered.

At the end of the discussion, the council asked the Parks Committee and the Nuisance Committee to review the current city codes and make recommendations for updating those along with enforcement options. There was no firm timeline discussed, but there was some indication that the council wants recommendations before their next meeting.

“I think the best approach is for the [nuisance committee] to look back on any [rules] that are existing right now that are not being enforced, and go from there and fill in some gaps and create something that might benefit all of our parks” Grubb suggested.

“I think this is a time for everybody who’s involved in this, to take a look at the provisions that are there and read them. Look at what we’ve got and what we don’t have, any holes you might think are there. I’m happy to answer any questions. In my experience, every single code is up for multiple opportunities for revision just on its face. The starting point here is what the Chewelah Municipal Code reads right now,” Waters added.

Several council members concluded their comments by clarifying that they are not trying to target any individuals.

“When I presented earlier, I did want to note for the record that it had nothing to do with the folks that have claimed homelessness in our park. It has to do with providing a safer and sanitary condition for our parks. So whatever we do move forward with, that’s what I want our focus to be. I think everyone’s in agreement that we’re not targeting at all, it’s generally what will apply to all of our parks. And I do think that parking is an issue, and I do think that our restrooms are an issue, well before any of this issue with the van occurred,” councilwoman Grubb explained.

“I don’t want people to feel like we’re targeting somebody. Overall, this is an example of something that is going to continue to occur if we don’t come up with some remedy. I think it’s mostly trying [to] protect the community, trying to keep the community as the one we love and the one where we chose to live. Not targeting somebody, just trying to avoid this becoming a bigger issue,” Councilman Schalock concluded.

The next regular meetings of the Chewelah City Council will be Wednesday, August 19 and Wednesday, September 2, starting at 6:30 p.m. The meetings will likely be held virtually rather than in-person, to comply with COVID restrictions. View the agenda on the city’s website for call-in and log-in information.