Item 14 - 1st Reading of Ord. Establishing Regulations for Camping & Storage of Personal Property in Public Areas (PMC Ch 8.26)DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
AGENDA RE PQ RT City of Poway
June 6, 2023
Honorable Mayor and Members of the City Council
Alan Fenstermacher, City Attorney
afenstermacher@poway.org
Alan Fenstermacher, City Attorney
afenstermacher@poway.org
CITY COUNCIL
First Reading of Ordinance Establishing Regulations for Camping and Storage of
Personal Property in Public Areas (PMC Ch. 8.26)
The proposed Ordinance (Attachment A) would create Chapter 8.26 of the Poway Municipal Code
("PMC") to establish regulations for camping and storage of personal property in public areas, as well
as procedures for abatement and other remedies.
Recommended Action:
It is recommended the City Council introduce the Ordinance for first reading by title only, waive further
reading, and schedule the adoption of the Ordinance for the next Regular City Council meeting.
Discussion:
The City of Poway has historically avoided many issues associated with homelessness experienced in
other areas of the County. However, camping in public has increased over the past several years, as
it has all over California in the wake of the April 2019 Ninth Circuit Court of Appeals decision in the
case of Martin v. City of Boise ("Boise") Further, this type of activity and associated impacts on the
community could increase in the future, because the City of San Diego has recently stepped up efforts
to abate public camping, which could cause homeless individuals to travel to Poway. In light of these
recent developments, Mayor Vaus and Councilmember Pepin requested City staff and the City
Attorney's office to proactively evaluate enhancing the City's ability to protect its public spaces for safe
use by all, before any significant problems develop.
The public parks, public streets and alleys, public parking lots, public rights-of-way, parkways, public
sidewalks, recreational areas and other publicly owned or controlled property within the City -
generally referred to as public property - should be readily accessible and available to residents,
businesses and the public at large for their intended purposes. The use of public property for camping
purposes and/or for the storage of personal property interferes with the rights of others to use and
enjoy these public areas as they are intended. Such activity can constitute a public health and safety
hazard which adversely impacts neighborhoods and commercial areas.
The purpose of the attached Ordinance (Attachment A) adding Chapter 8.26 to Title 8 (Health and
Safety) of the PMC is to provide the City and law enforcement with all available tools to ensure
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camping on publicly owned property can be abated to the maximum extent of the law. The Sheriff's
Department has reviewed and approved the proposed Ordinance.
The proposed Ordinance would allow the City to ensure these public areas within the City are
maintained in a clean, sanitary, safe, and accessible condition, to adequately protect the health, safety,
environment and general welfare of the community, and to ensure public property is used for its
intended purpose and remains accessible to all citizens, businesses and visitors in the City. Nothing
in the proposed Ordinance is intended to interfere with otherwise lawful and ordinary uses of public
property.
Enforcement of camping regulations in California and other western states materially changed on
April 1, 2019, when the Ninth Circuit Court of Appeals issued its decision in the Boise case, referenced
above. This case involved multiple homeless individuals who had been cited for camping on public
property or sleeping in public buildings or places, in violation of the city's ordinance. The court
concluded it is a violation of the Eighth Amendment, which prohibits cruel and unusual punishment,
for a municipality to criminalize the act of sleeping outside where no sleeping space is practically
available in any shelter. As a result, ordinances completely prohibiting the act of sleeping on public
property when an individual has no other option have been deemed unconstitutional, as are those
that ban camping in public where there is not a clear distinction between the act of simply sleeping
and the act of camping.
Although the Boise decision limited how municipalities may regulate their own property as it relates
to sleeping in public, the decision does not amount to a total ban on a city's right to regulate the acts
of camping or sleeping in public. As noted in the concurring opinion, "[o]n the merits, the opinion
holds only that municipal ordinances that criminalize sleeping, sitting, or lying in all public spaces,
when no alternative sleeping space is available, violate the Eighth Amendment." The opinion does not
require cities to allow camping or sleeping at any time and in every publicly owned location.
The Ordinance will allow the Sheriffs Department to abate unlawful encampments in the City with 48
hours' notice, thereby minimizing risks to public health and safety and adverse impacts to protected
habitat and other open spaces. Prior to abating an illegal encampment on public or private property,
the enforcing authorized employee will offer the owner of the encampment facilities or paraphernalia,
if any, an available shelter space. Furthermore, the ordinance contains detailed provisions pertaining
to the notice required before an abatement is initiated, and how impounded property must be
inventoried by City staff and recovered by the owner or disposed of. This will allow the City to regulate
its property and other public or private property related to camping more effectively and within the
confines of the law as announced in Boise. The proposed Ordinance also prohibits the act of sitting
or lying on public sidewalks in a manner that obstructs pedestrians or blocks vehicular traffic.
Offering resources will always take priority over enforcement. However, this ordinance will enable
the Sheriffs Department to abate public nuisance camping when the encampments are either
unoccupied or involve person(s) who refuse offered resources.
Environmental Review:
The proposed ordinance adding Chapter 8.26 to the PMC is not a "project" subject to California
Environmental Quality Act (CEQA).
Fiscal Impact:
There is no fiscal impact associated with the recommended action.
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ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
POWAY, CALIFORNIA, ADDING CHAPTER 8.26 TO TITLE 8
(HEALTH AND SAFETY) OF THE POWAY MUNICIPAL CODE
ESTABLISHING REGULATIONS FOR CAMPING AND STORAGE
OF PERSONAL PROPERTY IN PUBLIC AREAS
WHEREAS, City staff and the City Attorney's Office have been progressively analyzing
the Poway Municipal Code ("PMC") and recommending updates where appropriate;
WHEREAS, the City of Poway desires to keep all public parks, public streets and alleys,
public rights-of-way, parkways, public sidewalks, recreational areas, and other publicly owned or
controlled property within the City readily accessible and available to the residents, businesses,
and the public at large for their intended uses;
WHEREAS, the use of public property for camping purposes and/or for the storage of
personal property interferes with the rights of others to use and enjoy these public areas as they
are intended and can constitute a public health and safety hazard which adversely impacts
neighborhoods and commercial areas;
WHEREAS, the City of Poway wants to maintain all public areas within the City in a clean,
sanitary, safe, and accessible condition to ensure public property is used for its intended purpose
and remains accessible to citizens, businesses, and visitors in the City; and
WHEREAS, the City Council desires to adopt Chapter 8.26 of the Poway Municipal Code,
establishing regulations for camping and the storage of personal property including violations,
penalties, and enforcement.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN
AS FOLLOWS:
SECTION 1: The above recitations are true and correct.
SECTION 2: The new Chapter 8.26 is hereby added to Title 8 of the Poway Municipal
Code to read as set forth on Exhibit 1 hereto.
SECTION 3: If any provisions of this Ordinance or the application thereof to any person
or circumstances is held invalid, that invalidity shall not affect other provisions or applications of
the act which can be given effect without the invalid provisions or application, and to this end the
provisions of this act are severable.
SECTION 4: This Ordinance shall be codified.
EFFECTIVE DATE: This Ordinance shall take effect and be in force thirty (30) days after
its adoption.
CERTIFICATION/PUBLICATION: The City Clerk shall certify the adoption of this Ordinance and
cause it or a summary of it, to be published with the names of the City Council members voting
for and against the same in the Poway News Chieftain, a newspaper of general circulation in the
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City of Poway within fifteen (15) days after its adoption and shall post a certified copy of this
Ordinance in the Office of the City Clerk in accordance with Government Code § 36933.
INTRODUCED AND FIRST READ at a Regular Meeting of the City Council of the City of
Poway, California, held the 6th day of June, 2023, and thereafter.
PASSED AND ADOPTED at a Regular Meeting of said City Council held the 18th day of
July, 2023, by the following vote, to wit:
AYES:
NOES:
ABSTAINED:
ABSENT:
DI SQUALi Fl ED:
Steve Vaus, Mayor
ATTEST:
Carrie Gallagher, CMC, City Clerk
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Exhibit 1
CHAPTER 8.26: CAMPING AND STORAGE OF PERSONAL PROPERTY IN PUBLIC AREAS
8.26.010 Purpose and intent
8.26.020 Definitions
8.26.030 Unlawful camping
8.26.040 Permitted camping
8.26.050 Unlawful storage of personal property in public areas
8.26.060 Parking on private or public property -consent required
8.26.070 Notice and removal of personal property in public areas
8.26.080 Public nuisance declared
8.26.090 City Manager administrative authority
8.26.100 Violations, penalties, and enforcement
§ 8.26.010 PURPOSE AND INTENT.
The public parks, public streets and alleys, public parking lots, public rights-of-way, parkways,
public sidewalks, recreational areas and other publicly owned or controlled property within the
city (collectively "public property") should be readily accessible and available to residents,
businesses and the public at large for their intended purposes. The use of public property for
camping purposes and/or for the storage of personal property interferes with the rights of others
to use and enjoy these public areas as they are intended. Such activity can constitute a public
health and safety hazard which adversely impacts neighborhoods and commercial areas. The
purpose of this chapter is to maintain these public areas within the city in a clean, sanitary, safe,
and accessible condition, to adequately protect the health, safety, environment and general
welfare of the community, and to ensure that public property is used for its intended purpose
and remains accessible to all citizens, businesses and visitors in the city. Nothing in this chapter
is intended to interfere with otherwise lawful and ordinary uses of public property. This chapter
shall be interpreted in a manner that is consistent with applicable state and federal law.
§ 8.26.020 DEFINITIONS.
For purposes of this chapter, the words and phrases in this chapter shall have the following
meanings, except where the context clearly indicates a different meaning.
CAMP or CAMPING.
(1) Residing in or using any public area or private property for living accommodation or
habitation purposes with one's personal property, or within one's personal property (e.g., vehicle
of any kind, specifically including but not limited to a camper, trailer, coach, fifth wheel or any
other trailer or recreational vehicle, whether or not the vehicle is operatable), or while storing
one's personal property (including unauthorized parking of any vehicle); and/or
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(2) Constructing, maintaining, occupying, inhabiting or using camping facilities and/or
constructing, using or maintaining camping paraphernalia for living accommodation or habitation
purposes, but is not limited to sitting, lying, or sleeping within such camp facilities and/or upon
such CAMP paraphernalia for living accommodation or habitation purposes. For purposes of
this chapter, CAMPING shall not include merely sleeping outside in a city or valley-wide park or
the use of a blanket, towel or mat in a park during the time the park is open to the public.
CAMPING FACILITY or CAMPING FACILITIES. Includes, but is not limited to, tents, huts, or
other temporary physical shelters.
CAMPING PARAPHERNALIA. Includes, but is not limited to, tarpaulins, cots, beds, sleeping
bags, bedrolls, bedding, luggage, hammocks, cooking equipment and/or other similar articles of
equipment or items that are accessory to camping facilities.
PUBLIC AREA. All property that is owned, managed or maintained by the city, and shall
include, but not be limited to any public street, building, grounds, lot, parcel park, plaza or
parking lot dedicated to the authorized use and enjoyment of the public, and any other public
property owned, maintained or controlled by another government agency within the city where
the city is authorized to enforce its police powers as described herein.
PUBLIC STREET. Includes but is not limited to any city right-of-way, street, road, highway,
alley, sidewalk, parkway, bridge, culvert, drain, and all other facilities or areas necessary for the
construction, improvement, and maintenance of streets and roads.
PERSONAL PROPERTY. Tangible personal belongings or possessions, which shall include
any movable or tangible thing that is subject to ownership; property or chattels that can be seen,
weighed, measured, felt, or touched, including, but not limited to, furniture, appliances, camping
facilities, camping paraphernalia, money, books, vehicles of any kind and shopping carts.
SIDEWALK. That portion of the public right-of-way provided for the primary use of pedestrians
along or adjacent to a street.
STORE or STORING or STORAGE. To put aside or accumulate for use when needed, to put
for safekeeping, and/or to place or leave in a location; which does not include any personal
property that clearly has been abandoned or discarded and which clearly has no value.
TENT. Any tarp, cover, structure or shelter, made of any material that is not open on all sides
and which hinders an unobstructed view behind or into the area surrounded by the tarp, cover,
structure or shelter.
UNATTENDED PERSONAL PROPERTY. Personal property that has been turned in to the
City or the County of San Diego Sheriff's Department pursuant to §§ 8.26.050 and 8.26.070,
and that has not been claimed within a period of 90 days by its owner.
§ 8.26.030 UNLAWFUL CAMPING.
(A) Unlawful camping. It shall be unlawful and a public nuisance for any person to camp,
occupy camp facilities or use camp paraphernalia in the city, whether on public or private
property, or in any public area, whether paved or unpaved, except as expressly permitted by
this chapter, or as mandated by applicable law. It shall also be unlawful and a public nuisance
for any landowner or occupant of private property to willfully allow, authorize or permit another
person to occupy camp facilities or use camp paraphernalia on such private property in the city,
whether paved or unpaved, except as expressly permitted by this chapter, or as mandated by
applicable law.
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(B) Exceptions.
(1) This section shall not apply to any person camping, occupying camp facilities or using
camp paraphernalia, or to any person storing personal property, including camp facilities and
camp paraphernalia, in any public area designated by the city for such purposes. The City
Council may, by resolution or ordinance, establish specified public areas for such purposes.
(2) Absent exigent circumstances relating to immediate threats to the public health, safety,
or welfare, the provisions of this section will not be enforced against 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 902 F.3d 1031 (9th Cir. 2018), and only during the
timeframe that the case of Martin v. City of Boise 902 F .3d 1031 (9th Cir. 2018) is applicable law
within the jurisdiction of the Ninth Circuit, unless the following procedures are followed:
(a) Definition. For the purpose of this § 8.26.030 (B)(2), the following definition applies:
OUTREACH AND ENGAGEMENT (O&E) PERSONNEL. Includes, but is not limited to,
any organization that the city has contracted with for homeless outreach and engagement
services. OUTREACH AND ENGAGEMENT PERSONNEL may include city employees,
homeless liaisons and members of the County of San Diego Sheriffs Department.
(b) Procedures. Prior to any citation or arrest for unlawfully camping, occupying camp
facilities or using camp paraphernalia, storing personal property in public areas, a person shall
be referred to O&E personnel to determine potential shelter placement or available services.
1. If the homeless person declines the offered placement, or available services, then
this exception under§ 8.26.030(B)(2) shall not apply and the city may proceed with enforcement
of this section after giving such person a warning and an opportunity to immediately leave the
location where unauthorized camping is occurring, or an opportunity to voluntarily decide to
relocate outside of the jurisdiction of the city, before engaging in citation and/or arrest. If such
person relocates upon warning, he or she will not be cited or arrested for violating this section. If
the homeless person fails to relocate as directed, then he or she may be issued a citation, or
placed under custodial arrest for such violations.
2. If any alleged violation arises from the homeless person's presence in a city or
valley-wide park outside of the established operational hours of the park and there is no
appropriate and immediately available shelter placement for such person, then such person will
be advised to move and referred to O&E personnel so that he or she may avoid citation or
arrest for a violation of this section until an appropriate and immediately available bed is made
available to such person.
3. These procedures under§ 8.26.030(B)(2) are only mandatory during the timeframe
that the case of Martin v. City of Boise 902 F.3d 1031 (9th Cir. 2018) is applicable law within the
jurisdiction of the Ninth Circuit.
(c) This exception shall not apply where a homeless person and/or their personal
property obstructs and actually interferes with a public area or the intended use of the public
area, provided that, absent exigent circumstances relating to immediate threats to the public
health, safety, or welfare, the homeless person is first advised to cease the interference and/or
to move the personal property causing the obstruction and they decline to do so. However, this
§ 8.26.030(B)(2)(c) shall not apply if such personal property is unattended.
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§ 8.26.040 PERMITTED CAMPING.
Camping is permitted in the city under the following circumstances:
(A) On public property specifically set aside and clearly marked for public camping purposes
as designated by the City Council.
(B) In the rear or side yard of a residential structure with the consent of the owner or
occupant, as long as the camping facility is separated from the street by a fence, hedge or other
permanent obstruction, and is not visible from the public right-of-way. This subsection is not
intended to allow the owner to give permission for someone to utilize the camping facility for
living purposes, specifically for a period longer than 48 hours in any given 30-day period.
(C) In conjunction with events authorized and expressly provided for in a special event or
temporary use permit issued by the city.
(D) In the manner permitted by, and in full compliance with, Chapter 8.24 of the PMC.
§ 8.26.050 UNLAWFUL STORAGE OF PERSONAL PROPERTY IN PUBLIC AREAS.
(A) Unlawful storage of personal property in public areas. It shall be unlawful for any person
to store or leave unattended personal property, including camp facilities and camp
paraphernalia in any public area, unless such storage is expressly authorized and in conjunction
with a permitted camping activity under this chapter, or as mandated by applicable law.
(B) City and/or Sheriff's Department to receive stored/unattended personal property. Except
as provided in § 8.26.070(0), the city and/or Sheriff's Department shall make provisions for
receiving and safekeeping of personal property found unattended in any public area and coming
into their possession by an employee of the city in the course of employment pursuant to §
8.26.070(A). The city and/or Sheriff's Department shall notify the owner, if their identity is
reasonably ascertainable, that it possesses the personal property and where it may be claimed.
The City' and/or Sheriff's Department may require the owner to pay a reasonable charge to
defray the costs of storage and care of the personal property.
§ 8.26.060 PARKING ON PRIVATE OR PUBLIC PROPERTY -CONSENT REQUIRED.
It is unlawful for any person to park or cause to be parked or to leave parked any vehicle upon
private or public property, parking lot, or parking space without consent of the owner, the
property manager, or person or tenant entitled to the possession thereof.
§ 8.26.070 NOTICE AND REMOVAL OF PERSONAL PROPERTY IN PUBLIC AREAS.
(A) Notice and removal. In the event that personal property is found in the course of
employment by an authorized employee or contractor of the city in any public area without
authorization from the city (examples of authorized employees include, but are not limited to,
employees of the County of San Diego Sheriff's Department, city code enforcement, employees
or contractors of City Public Works Department, and other city employees properly trained to
carry out this section), such employee or contractor shall leave notice with the owner of the
personal property or in a prominent place and which notice shall contain all of the following
information:
(1) The personal property needs to be relocated;
(2) The timeframe that the property owner has to relocate the personal property. Such
timeframe shall not be less than 24 hours unless there is an immediate threat to the public
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health, safety, or welfare. Further, if the personal property obstructs and actually interferes with
a public area or the intended use of the public area, then this timeframe may be shorter than 24
hours, provided that, if the property owner is present, they are first advised to cease the
interference and/or to move the personal property causing the obstruction and they decline to
do so;
(3) A statement that, if the personal property is not removed within the timeframe, then the
city will remove and store the personal property consistent with this section. This statement shall
also provide the location that the personal property will be stored;
(4) If applicable, the nature and purpose of the clean-up;
(5) The date, time, and locations of the scheduled cleanup and/or removal of the personal
property;
(6) A citation to the applicable section of the Municipal Code or any other applicable law;
(7) A statement of how the personal property may be reclaimed;
(8) A statement that, if personal property is removed pursuant to this section, then such
personal property may be subject to disposal by the city pursuant to this section after 90 days
from the date of removal;
(9) A phone number that the person may call for more information;
(10) Any other additional information as determined by the city and/or Sheriff's Department;
(11) After the timeframe in the notice provided pursuant to § 8.26.070(A), the personal
property in the public area may be removed, inventoried, stored, and disposed of by the city
pursuant to this section. To the extent possible, the inventory list shall be provided to the
property owner(s). For any personal property removed, a notice shall be provided in a prominent
place in the removal area advising where the personal property is being kept and when it may
be claimed by its rightful owner; containing the information pursuant to§§ 8.26.070(A)(1) to (9)
and containing any other additional information as determined by the city and/or Sheriff's
Department. This notice shall include the date that the removed personal property will be
disposed of by the city pursuant to this section.
(B) Additional signage for removal of personal property. The city may determine what, if any,
areas of the city suffer from blight due to storage of personal property in any public area, and
erect signs in those areas containing the applicable information specified in§§ 8.26.070 (A)(1)
to (10) so as to provide additional notice.
(C) Holding and disposal of stored personal property. Except as provided in § 8.26.070 (A),
found personal property shall be deposited and inventoried in a safe place for a period of at
least 90 days and found money shall be deposited with the director of finance for a period of not
less than 90 days, unless sooner claimed by the true owner. In the event the property or money
is not claimed within 90 days, it shall be deemed to be unclaimed personal property and subject
to disposal as provided in this section. Additionally, the city shall not be obligated to store
personal property in excess of the city's current overall storage capacity.
(D) Trash, dangerous, or perishable personal property. Any personal property coming into
the possession of the city and/or Sheriff's Department may be immediately disposed of without
notice, in a manner that the city and/or Sheriff's Department determines to be in the public
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interest, when such personal property is trash, perishable, contraband pursuant to state or
federal law, or constitutes an immediate threat to the public health, safety, or welfare.
(E) Applicability. To the extent known by the city or the Sheriff's Department, the provisions
of this § 8.26.070 shall not apply to the following:
(1) Real or personal property or money subject to confiscation pursuant to state or federal
law;
(2) Personal property that constitutes evidence in an ongoing criminal investigation and/or
civil proceeding pursuant to state or federal law;
(3) Personal property that has been abandoned by its owner. Abandoned personal
property may be disposed of forthwith.
§ 8.26.080 PUBLIC NUISANCE DECLARED.
Any camping facility established in violation of this chapter is declared to be a public nuisance,
and the city is authorized to abate the nuisance and remove camp facilities and camp
paraphernalia as authorized by law.
§ 8.26.090 CITY MANAGER ADMINISTRATIVE AUTHORITY.
The City Manager or his or her designee may develop and adopt administrative regulations
that are consistent with the terms and prohibitions of this chapter. This shall include all policies
and procedures for the abatement of unlawful camping, including the policies and procedures
for ensuring safe and prompt removal of the nuisance while meeting procedural safeguards
required by city, state or federal law.
§ 8.26.100 VIOLATIONS, PENALTIES, AND ENFORCEMENT.
Any person who violates this chapter is guilty of a misdemeanor and punishable by a fine of
not more than $1,000 and/or imprisonment not to exceed six months. This chapter may also be
enforced via administrative or civil actions as authorized by the Municipal Code.
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