From our November 2016 e-newsletter
More and more communities throughout Oregon are faced with issues related to homelessness. One such issue is how to deal with illegal campsites on public property and the mess left behind when residents move on. At times, these campsites are abandoned and other times, cities or counties act to evacuate the camps. Either way, cities and counties are left to clean up the sites and remove property left behind or unclaimed. This article aims to help local governments understand their legal obligations, while providing some best practices when removing homeless campers and cleaning up homeless camps. While cities and counties primarily must address this issue, special districts should also be aware of these requirements as district employees regularly are called upon to assist in this process. Those entities could be named in a lawsuit along with the city or county.
Minimum Requirements Imposed by State Law
Many public officials are unaware that state law requires cities and counties to develop a policy that recognizes the social nature of the problem of homeless individuals camping on public property and to implement the policy so as to ensure the most humane treatment for removal of homeless individuals from camping sites on public property. ORS 203.077.
The policy developed and implemented must contain certain provisions including notice to the individual(s), notification of social service agencies, storing and making available unclaimed personal property, and a prohibition against issuing citations during certain time frames. ORS 203.079. Specifically, state law requires:
(a) Notice. Notice, written in English and Spanish, must be posted 24 hours prior to removing homeless individuals from an established camping site. However, notice is not required when illegal activities (other than camping) are occurring or for emergencies, such as site contamination by hazardous materials or danger to human life or safety. Consider laminating or otherwise weather-proofing the notice.
(b) Social Services. When posting notice, cities must notify local social service agencies. The local agency also has the right to arrange for outreach workers to visit the camp site to assess the need for social service assistance.
(c) Personal Property. All unclaimed personal property must be stored for 30 days prior to being disposed of and must be reasonably available to those claiming ownership. The statute defines “Personal Property” as any item that is reasonably recognizable as belonging to a person and that has apparent utility. Items with no apparent utility or that are in an unsanitary condition can be discarded immediately. Weapons, drug paraphernalia and items that appear to be stolen or evidence of a crime shall be turned over to law enforcement.
(d) Citations. State law prohibits citing homeless individuals for illegal camping at these locations within 200 feet of the notice and within two hours before or after the notice was posted.
While state law sets minimum requirements, some recent (unpublished) Oregon federal District Court cases help show us what to do, or at least what not to do, when implementing a policy on the removal of homeless campers and their property. Here are some points that I found helpful and interesting:
(a) Store the Personal Property in a Reasonable Place. In one case, a city’s argument that a dumpster was a “reasonable” storage facility, unsurprisingly, did not persuade the court. Cities should store personal property in clean, dry, and reasonably secure locations.
(b) Develop a System to Identify and Locate the Stored Personal Property. In another case, a homeless individual called the city (using the phone number provided on the notice) multiple times but was never directed to where his property was actually being stored. The court held against the city because even though the city stored the property for the required 30 days, the individual didn’t have any real opportunity to claim it. Remember, ORS 203.079 requires the property to be “reasonably available.” Often times, the person calling will not have a telephone – making it important for a city to be able to identify where the property is stored and relay that information to the caller on the first call.
(c) Document City/County Action. Maintaining detailed records of any city action will help any city faced with a claim. Consider having a policy in place detailing: (1) when the city posted notice; (2) the location of the property when it was removed; (3) what property was removed; (4) what property was retained, where it was stored, and for how long; and (5) what was thrown away (and why). Taking pictures of what property was stored and what was disposed of may be an effective way of documenting city action.
Regardless of how detailed and specific your policies are, the key takeaway is that state law requires all cities and counties to develop and implement a policy for the removal of homeless individuals and their property and sets minimum requirements. Remember, one person’s trash is another person’s treasure, so don’t be too quick to throw out something that may have value to someone else. The Local Government Law Group is here to help answer any questions or draft a policy that fits the needs of your community.