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URGENCY ORDINANCE NO. 1682

AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN CLEMENTE, CALIFORNIA AMENDING CHAPTER 8.86 OF THE SAN CLEMENTE MUNICIPAL CODE (RELATING TO PUBLIC CAMPING) IN ITS ENTIRETY, REPEALING ORDINANCES NOS. 1673, 1674, AND 1675, AND FINDING THE ORDINANCE EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT

WHEREAS, as of January 2015, the number of people experiencing homelessness in the United States was estimated at over 564,000, with twenty-one percent (21%) of such persons located in the State of California; and

WHEREAS, according to data provided by the Federal Department of Housing and Urban Development, California is home to four of the nation’s top ten major metropolitan areas with the largest number of persons experiencing homelessness; and

WHEREAS, Orange County is experiencing similar conditions, with significant and increasing numbers of persons currently homeless/unsheltered in Orange County, living in areas not meant for human habitation such as public streets, public and private parking lots, abandoned buildings, vacant lots, and open space areas, public infrastructure facilities, beaches and parks; and

WHEREAS, more than half of the individuals experiencing homelessness residing in Orange County are “chronically homeless;” and

WHEREAS, the City of San Clemente’s homelessness rates have increased along with those of Orange County at large; and

WHEREAS, San Clemente, along with every city in the region, has struggled to create solutions and has likewise been working with the County and other stakeholders to develop both temporary and permanent solutions to this regional crisis; and

WHEREAS, the City has been working actively to develop long-term solutions to the homelessness problem, in conjunction with the County and other stakeholders, to pursue the provision of emergency shelter services and transitional and long-term housing opportunities to address the underlying causes of homelessness, including petitioning the County of Orange to provide shelter and services to this highly impacted segment of its population; and

WHEREAS, the City has contracted with various non-profit service organizations to provide outreach, counseling, and other services to the people in San Clemente experiencing homelessness; and

WHEREAS, the City’s climatic, topographical, circulation, seismic, geological, and wildland-urban interface conditions create an increased risk of fires; and

WHEREAS, the California Department of Forestry and Fire Protection reports an average of 103 wildfires per year are ignited by illegal open fires, and, several fire departments in California have responded to such fires at, or caused by activities at, unauthorized camping; and

WHEREAS, the City Council of the City of San Clemente desires to take immediate action to address the incidents of homelessness and unsheltered persons residing within the City; and

WHEREAS, based on the above and other related findings, on February 20, 2018, the City Council adopted Ordinance No. 1650 to amend the San Clemente Municipal Code to add chapter 8.86, Camping, which prohibits camping upon public property, private open space, and fire risk areas; and

WHEREAS, on September 4, 2018, the United States Court of Appeals, Ninth Circuit issued a decision in Martin v. City of Boise (9th Cir. 2018) 902 F.3d 1031, which restricted the enforceability of anti-camping ordinances under certain circumstances; and

WHEREAS, in light of the Martin decision, on March 19, 2019, the City adopted an ordinance adding Section 8.86.040 to the SCMC providing that “[a]bsent exigent circumstances relating to immediate threats to the public health, safety, or welfare, the provisions of this chapter will not be enforced against indigent homeless persons sitting, lying, or sleeping on public property when no alternative shelter is available in accordance with the holding in Martin v. City of Boise (9th Cir. 2018) 902 F.3d 1031.”; and

WHEREAS, in litigation challenging the City’s camping ordinance, a federal court recently acknowledged that the decision in Martin v. City of Boise, by its own terms, does not suggest that “a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside [and] even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible;” and

WHEREAS, the court in the above-referenced federal case held that under Martin, San Clemente “has no affirmative constitutional obligation to provide shelter to individuals experiencing homelessness” and that Martin “in no way dictate[s] to [cities] that [they] must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets . . . at any time and at any place;” and

WHEREAS, SCMC Section 8.86.040 currently bars enforcement of the Code’s public camping prohibition where individuals lack alternative shelter, except where, upon a finding of exigent circumstances, the City makes certain City property available for transitional camping for persons suffering the effects of homelessness (hereinafter “transitional camping”); and

WHEREAS, against this backdrop, on May 21, 2019, and June 4, 2019, the City Council considered and adopted Ordinance Nos. 1673 [Urgency Ordinance] and 1674 [Standard Ordinance], which: (1) contained findings of exigent circumstances requiring enforcement of the City’s anti-camping ordinances and (2) designated one piece of City property at the City’s public works yard on Avenida Pico where transitional camping is permitted; and 

WHEREAS, the City Council adopted Ordinance Nos. 1673 and 1674 because, among other things: 

  1. Numerous passengers at the City’s major transportation facility at the coastal North Beach Metrolink station expressed concern about their personal safety and uninvited encounters by persons camped at or near the train platform; and
  2. The City received a grievance from a disabled person claiming that materials from an encampment at North Beach impeded his access to the sidewalk and connected facilities; and
  3. Residents complained that they were being deprived of use and enjoyment of coastal public facilities by virtue of being accosted, threatened, or verbally abused by occupants of encampments; and
  4. Occupants of various encampments lacked privacy and quiet due to their adjacency to the railroad tracks and the San Clemente Beach Trail, and large numbers of residents, tourists, and visitors utilizing these coastal facilities for recreation and transportation; and
  5. Coastal City facilities and their environs were damaged by these encampments, including the grounds of the Ole Hanson Beach Club, a historic landmark built in 1928 and the subject of a recent $5.6 million renovation, and the San Clemente Beach Trail; and
  6. Public defecation and public urination and other unsanitary conditions at these and other public facilities, sometimes in close proximity to open public restrooms, create unsanitary conditions for the occupants of the encampment and visitors; and
  7. Such conditions negatively impact the health and safety of the general public, the physical environment and public facilities of the City, by, among other things: (1) limiting the ability of emergency responders to access and address issues of public safety, including the provision of such services to those persons experiencing homelessness, (2) exposing persons experiencing homelessness to risks in coastal areas from flooding, surf, and unstable soil conditions, (3) impairing access to transit and other public facilities for disabled persons, and (4) impeding the use and enjoyment of such facilities for their intended purpose; and
  8. The occupants of the North Beach encampment were often perceived to be in a state of confusion or disorientation, which in connection with the close proximity of their encampment to the railroad tracks, exposed such occupants to extreme risks and health hazards; and

 WHEREAS, following the City’s designation of its public works yard on Avenida Pico as the sole location in the City where transitional camping is permitted, the City has continued to experience issues impacting the health and welfare of the community with respect to homelessness in the City; 

WHEREAS, notwithstanding these issues, through support and intervention by the City, the County, the Sheriff, and charitable institutions, the City has made significant progress toward reducing the number of persons experiencing homelessness in the City to the point that as of December 3, 2019, the number of individuals regularly camping at the Avenida Pico campground has decreased to fewer than five; and 

WHEREAS, during this interim, the City has worked aggressively with the County, the Sheriff, and the City’s non-profit partners to (1) explore locations and funding sources for permanent shelter beds for persons in San Clemente experiencing homelessness, (2) find  potential locations for the City’s establishment of a long-term transitional camp, if necessary, (3) provide hotel vouchers or campsite vouchers for persons experiencing homelessness in San Clemente, and (4) connect persons experiencing homelessness with transitional housing, family or charitable housing sources, and other assistance; and

WHEREAS, continuing to operate the Avenida Pico campground costs the City approximately $30,000 per month; and

WHEREAS, given that high cost of operation and small number of individuals regularly camping at the Avenida Pico transitional camp, City resources to assist individuals experiencing the effects of homelessness can be better allocated towards other uses; and

 WHEREAS, given the foregoing, the City Council desires to close the Avenida Pico public works yard to transitional camping; and

WHEREAS, among other things, the City will continue to assist individuals experiencing the effects of homelessness in the City by (1) providing counseling and facilitating transportation for said individuals to travel to the homes of friends, family, charitable, or other providers, (2) distributing hotel vouchers where appropriate; (3) facilitating use of publically operated campgrounds designated for that purpose, and (4) identifying a long-term transitional campsite, subject to appropriate general plan and zoning compliance and environmental review.

WHEREAS, consistent with Martin v. City of Boise and San Clemente Municipal Code Section 8.86.040 (as revised by this Ordinance), the City will hereafter enforce the public camping prohibitions of Chapter 8.86 by providing or confirming that persons violating those prohibitions have available:  (1) transportation to and housing provided by friends, family, charitable, or other providers, (2) shelter in the form of hotel vouchers, and/or (3) paid access to a publically owned campground; and

WHEREAS, in circumstances where Martin v. Boise, coupled with the City’s potential inability to facilitate or provide housing or shelter, the City is compelled to allow public camping, this ordinance provides that tents may be erected only between the hours of 5 p.m. and 10 a.m.; and

WHEREAS, certain provisions of the ordinance is based upon the City’s experience in operating the Pico transitional camp, which demonstrated that tents could only be erected in that camp between hours between 5 p.m. and 10 a.m. in order to protect the safety of the camp’s occupants. Structures with enclosed coverings constitute a danger to public safety in part because they prevent Orange County Sheriff’s Department officers and other public safety personnel from observing all areas of and activities on the site, including illegal activities inside the enclosed structures (e.g., alcohol consumption, weapons violations, or drug use). 

WHEREAS, homelessness continues to remain a dynamic and evolving issue within the City and surrounding region requiring coordinated efforts by the City, the State of California, the Federal Government, and non-profit/private sector partners; and

 WHEREAS, the City Council finds that the conditions enumerated in the above recitals, the conditions described in the agenda report accompanying this ordinance, and the conditions included in the May 21, 2019 City Council agenda report and accompanying ordinances continue to give rise to emergency circumstances; and

WHEREAS, California Government Code section 36937 empowers cities to adopt, by four-fifths vote, an urgency ordinance, which is necessary for the immediate preservation of the public peace, health, or safety; and

WHEREAS, for the reasons enumerated above, the adoption and immediate enactment of this ordinance is immediately necessary for the avoidance of additional damage to the City’s park facilities, the preservation of public health and safety, and the prevention of greater health, welfare, and safety risks to people in San Clemente experiencing homelessness and the general public.

NOW, THEREFORE, the City Council of the City of San Clemente does ordain as follows:

  •   The recitals above are each incorporated by reference and adopted as findings by the City Council.
  •   CEQA. The City Council finds that this Ordinance is not subject to the requirements of the California Environmental Quality Act (“CEQA”) for the following reasons:
  • This Ordinance is not a “project” within the meaning of Section 15378 of the State CEQA Guidelines. (See State CEQA Guidelines, § 15060, subd. (c)(3) [“An activity is not subject to CEQA if …

[t]

he activity is not a project as defined in Section 15378”].)   Here, the Ordinance is not a “project” within the meaning of Section 15378 because the Ordinance has no potential “for resulting in a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment,” as further discussed below.  (State CEQA Guidelines, § 15378.) 

  • In the alternative, and if a project, this Ordinance is exempt under State CEQA Guidelines section 15061(b)(3), the common sense exemption, because it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.

Notably, the Ordinance will not result in any construction or development, it will not result in increased camping, and it will not result in an increase in the population of unsheltered individuals.  To the contrary, the Ordinance will protect the environment by protecting public property and decreasing the risk of wildfires.  

The Ordinance will require less than five individuals who regularly camp at the Avenida Pico transitional campground to cease their camping activity at that site; this will not result in any adverse significant impact on the environment.  As noted above, these individuals already have the option to (1) receive counseling and transportation assistance to the homes of friends, family, charitable or other providers, (2) obtain shelter in the form of hotel vouchers, and/or (3) receive transportation facilitated by the City to publically owned campgrounds.

In short, this Ordinance has no potential to result in a direct, or reasonably foreseeable indirect, physical change in the environment, and it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.  The City Council, therefore, directs that a Notice of Exemption for this Ordinance be filed with the County Clerk of the County of Orange in accordance with the State CEQA Guidelines. 

  • The City Council hereby repeals Urgency Ordinance No. 1673 (adopted May 21, 2019), Ordinance No. 1674 (adopted June 4, 2019), and Ordinance No. 1675 (adopted June 18, 2019).
  •   For purposes of this Ordinance, “Camping” shall mean to pitch or occupy “camp facilities” or to use “camp paraphernalia” as those terms are defined in SCMC Section 8.86.010.   
  •   Chapter 8.86 of the San Clemente Municipal Code is hereby amended in its entirety and restated to read as follows:    

“Section 8.86.010 – Definitions.

For purposes of this chapter and this code, unless otherwise provided by this code, the following definitions apply:

“Camping” means to pitch or occupy camp facilities or to use camp paraphernalia;

“Camp facilities” include, but, are not limited to, tents, huts, or other temporary shelters.

“Camp paraphernalia” includes, but is not limited to, tarpaulins, cots, beds, sleeping bags, hammocks, non-City designated cooking facilities, or similar equipment.

Section 8.86.020 – Camping: Locations Prohibited.

Except as otherwise provided by this code or by resolution of the City Council, it is unlawful for any person to engage in camping:

  1. Upon any land or easement owned, operated, or managed by the City;
  2. Upon any land for which Title 17, Zoning, the General Plan, or a specific plan designates as private open space and prohibits camping;
  3. Upon any land designated by the Fire Chief as a fire risk area. Fire risk areas include, but, are not limited to, areas in or near a very high fire hazard severity zone identified by the City or by the California Department of Forestry and Fire Protection, areas in or near a wildland-urban interface, and areas in or near to a heightened fire rating by the Orange County Fire Authority.

Section 8.86.030 – Camping Procedures, Removal and Recovery of Personal Property.

  1. Except as otherwise provided in this code or by resolution of the City Council, any personal property left for more than 24 hours upon any lands where camping is prohibited by Section 8.86.020 shall be considered abandoned and may be removed or impounded by the City or peace officers.
  2. Such property may be recovered by the persons who own or have rights to possess it in accordance with procedures established by the City Manager, or his or her designee, or with procedures of the law enforcement agency to which the property is taken by peace officers.  

Section 8.86.040 – Enforcement

  1. Absent exigent circumstances relating to immediate threats to the public health, safety, or welfare, the provisions of this chapter will not be enforced against indigent homeless persons sitting, lying, or sleeping on public property when no alternative shelter or publically provided campsite is available in accordance with the holding in Martin v. City of Boise (9th Cir. 2018) 902 F.3d 1031.
  2. In circumstances in which the provisions of this chapter will not be enforced pursuant to Subsection A of this section, tents may be erected only between the hours of 5 p.m. and 10 a.m., daily.
  3.     The City Council hereby enacts this urgency ordinance under section 36937, subdivision (b), of the California Government Code, which allows the City to adopt an urgency ordinance by not less than a four-fifths vote for the immediate preservation of the public peace, health or safety, subject to the findings herein. 
  4.   This Ordinance is enacted pursuant to Government Code section 36937 for the immediate protection of the public peace, health, and safety. This Ordinance shall take effect immediately upon its adoption.
  5. The City Clerk shall certify the adoption of this ordinance and shall cause the same to be posted as required by law.
  6.  If any provision of this ordinance or its application to any person or circumstance is held invalid, such invalidity has no effect on the other provisions or applications of the ordinance that can be given effect without the invalid provision or application, and to this extent, the provisions of this resolution are severable. The City Council declares that it would have adopted this resolution irrespective of the invalidity of any portion thereof.
  7.  The documents and materials associated with this Ordinance that constitute the record of proceedings on which the City Council’s findings and determinations are based are located at City Hall, 910 Calle Negocio, San Clemente, CA 92672.

APPROVED AND ADOPTED this 10th day of December, 2019.

ATTEST:

/s/Joanne Baade                                                                  /s/ Dan Bane

_______________________________                       ___________________________

City Clerk of the City of                                                    Mayor of the City of

San Clemente, California                                                San Clemente, California

Urgency Ordinance No. 1682                                                                                Page 9

STATE OF CALIFORNIA                 )

COUNTY OF ORANGE                    )   ss.

CITY OF SAN CLEMENTE              )

            I, JOANNE BAADE, City Clerk of the City of San Clemente, California, hereby certify that Urgency Ordinance No. 1682, the reading in full thereof waived, was duly passed and adopted at an adjourned regular meeting of the City Council held on the 10th day of December, 2019, by the following vote:

AYES:                        FERGUSON, JAMES, WARD, MAYOR BANE

NOES:                        NONE

ABSENT:                   HAMM

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Clemente, California, this 12th day of December, 2019.

                                                                            /s/ Joanne Baade                           

                                                                            CITY CLERK of the City of

                                                                                    San Clemente, California

APPROVED AS TO FORM:

/s/ Scott Smith                     

CITY ATTORNEY

55452.01100\32553325.6

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