Aitken v. City of Aberdeen

393 F.Supp.3d 1075

Elizabeth AITKEN, et al., Plaintiff,

v.CITY OF ABERDEEN, a municipal government, Defendant.

CASE NO. 3:19-cv-05322-RBL

United States District Court, W.D. Washington, at Tacoma.

Signed July 2, 2019

James E. Lobsenz, Carney Badley Spellman PS, Todd Maybrown, Allen Hansen Maybrown & Offenbecher, PS, Seattle, WA, for Plaintiff.

Jeffrey S. Myers, John E. Justice, Law Lyman Daniel Kamerrer & Bogdanovich, Olympia, WA, Mary Patrice Kent, City of Aberdeen, Aberdeen, WA, for Defendant.

ORDER ON PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER

DKT. ## 11 & 43

Ronald B. Leighton, United States District Judge

INTRODUCTION

THIS MATTER is before the Court on Plaintiffs' Renewed Motion for Temporary Restraining Order. Dkt. ## 11 & 43. For the past several years, much of Aberdeen's homeless population has resided on a narrow strip of land between a train yard and the Chehalis River. That land, known as "River Camp," was recently purchased by the City of Aberdeen, which now wants to remove the homeless occupants. Around the same time, the City amended its municipal code to make camping either civilly or criminally prohibited on public property throughout Aberdeen. Plaintiffs, who are members of or associated with Aberdeen's homeless community, have sued to enjoin the River Camp eviction and enforcement of the City's camping-related ordinances. Plaintiffs argue that the ordinances are collectively unconstitutional because they make homelessness illegal in Aberdeen.

For the following reasons, Plaintiffs' Motion is DENIED in part and GRANTED in part.

BACKGROUND

1. River Camp

River Camp is a piece of undeveloped land in Aberdeen occupied by about 100 homeless individuals, several of whom are Plaintiffs in this case. The property is bordered to the south by the Chehalis river and to the north by a rail yard and is about 200 feet wide by 1200 feet long. Unless someone traverses the rail yard, which is always occupied by train cars, there are only two entrances to River Camp accessible for pedestrians only. According to Plaintiffs, homeless encampments have existed in River Camp for the past several decades. Plaintiffs Hinkle and Vervalen have lived there for over eight years.

But while River Camp is home to some, it also poses health and safety problems for its occupants and the community. Police are often called to the property to address theft, assault, sexual assault, and controlled-substance use. River Camp's isolated location also makes it an ideal place for those wishing to take advantage of its vulnerable residents and for criminal suspects seeking refuge. With its thick vegetation, holes filled with human waste, discarded needles, and numerous tents, police officers face challenging obstacles when pursuing individuals into the camp. These aspects of River Camp also slow down emergency responders and otherwise make the property unsanitary and dangerous for its occupants. Indeed, it is important that first responders be able to access River Camp because its residents often have fires near their flammable shelters, which have been incinerated in the past. Finally, River Camp's location adjacent to the rail yard poses additional safety risks. The rail company has reported damage to its tracks from vehicles crossing to access the camp and one homeless resident had her legs severed by a train while attempting to crawl under it.

Likely aiming to address these problems, the City purchased the River Camp property in August of 2018 for $295,000. In September, the City initiated a permitting process that required residents of River Camp to register in order to stay there. In April of 2019, the City announced a proposed ordinance that would prohibit access to the River Camp property altogether.

2. The City's Ordinances

Four ordinances are at issue in this case. The first is Ordinance No. 19-5, or the "Eviction Ordinance." Its effect will be to evict the occupants of River Camp and prohibit all public access to the property once enacted. Dkt. #1, Appendix D, at 2-3. The ordinance cites the dangerous adjacent rail yard, sanitation concerns, lack of police and medical access, and zoning violations as reasons for the eviction. Id. at 2. The Eviction Ordinance was scheduled for final approval on May 8 but has been delayed due to this lawsuit.

The second ordinance is Aberdeen Municipal Code § 12.46, or the "Anti-Camping Ordinance," which imposes civil liability for unlawful camping. Section 12.46.040 was expanded in February of 2019 to make "camp[ing] or us[ing] camp paraphernalia" illegal in basically all public places in Aberdeen, including public parks, streets, sidewalks, and "[a]ny other publicly owned parking lot or publicly owned property, improved or unimproved." The ordinance "shall be enforced at all times" except "when there is no available overnight shelter for individuals or family units experiencing homelessness on the date that camping occurs," in which case camping is allowed on "[p]ortions of any street right-of-way that are not expressly reserved for vehicular or pedestrian travel." AMC § 12.46.045. Violations of the Anti-Camping Ordinance are Class 4 civil infractions resulting in fines of up to $25.00. AMC § 12.46.050.

The third ordinance is Aberdeen Municipal Code § 12.41, or the "Sit-Lie Ordinance." Under § 12.41.010, "No person shall sit or lie down upon a public sidewalk, or upon a blanket, chair, stool or other object placed upon a public sidewalk within the city of Aberdeen Downtown Parking and Business Improvement District as defined in Chapter 10.20 during the hours of 6:00 a.m. and 11:00 p.m." Violation is a Class 3 civil infraction that can lead to a fine of $50 plus statutory assessments. AMC § 12.41.020. Violators may be required to perform community service if they are unable to pay. Id. In addition, failure to appear in court or sign a notice of civil infraction amounts to a criminal misdemeanor. Id.

The fourth and final ordinance is Aberdeen Municipal Code § 12.44, or the "Sidewalk Law," which makes it a criminal misdemeanor to obstruct sidewalks. Under Section 12.44.040, "No person shall place or cause to be placed or keep or suffer to remain, any article in any street or on any sidewalk of the city, so as to obstruct the free use and passage thereof without first obtaining a permit from the city." The law is to be "strictly enforced to cause the arrest of any persons violating the same." § 12.44.060. Violators must pay a fine of up to $50.00 plus the costs of prosecution and defaulting on payment can result in up to 30 days in jail. § 12.44.050.

3. The City's Attempt to Accommodate Evictees from River Camp

On May 6, 2019, the Court held a hearing on Plaintiffs' original Motion for Temporary Restraining Order. See Dkt. #37. At the hearing, the Court stayed enforcement of the Eviction Ordinance so that the parties could determine suitable locations in Aberdeen for the former residents of River Camp to go. See id. Those negotiations did not yield an outcome that was acceptable to Plaintiffs, causing them to renew their Motion for Temporary Restraining Order. Dkt #43. However, the City asserts that the negotiation process caused them to re-examine their ordinances and identify places where camping would be permitted.

The City's proposal for re-locating the River Camp evictees largely amounts to a re-interpretation of its ordinances. First, the City asserts that the term "expressly reserved for pedestrian access" in § 12.46.045 of the Anti-Camping Ordinance refers to the four-foot public access route that the Americans with Disabilities Act (ADA) requires for all sidewalks. Dkt. #46 at 7. Consequently, "when there is no available overnight shelter" homeless individuals can camp on the portions of sidewalks outside the four-foot public access route without being cited under for violating the Anti-Camping Ordinance. See AMC § 12.46.045. The City further acknowledges that there is currently insufficient shelter for Aberdeen's homeless at all times, meaning the exception is constantly in effect. Dkt. #46 at 9. In somewhat indirect terms, the City also suggests that the Sidewalk Law and Sit-Lie Ordinance do not apply outside the ADA-required four-foot public access route or are not enforced as long as there is insufficient shelter. Id. at 8-9.

Under this interpretation of its ordinances, the City claims to have identified 174,500 square feet of space for camping on sidewalks inside the "enforcement zone" for the Sit-Lie Ordinance and 40,000 square feet outside it. Id. at 8. This area is all on relatively flat portions of sidewalk that are at least two feet in width. Id. Accounting for the roughly 120 square feet it takes to house a tent and the 108 individual tent sites needed, this area supposedly amounts to "between three and thirteen times" the area needed to establish alternative camping for Plaintiffs. Id. at 7-8. This area is also within downtown Aberdeen and close to social services such as the food bank, the department of social and health services, and other non-profits. Dkt. #46 at 6-7.

DISCUSSION

The purpose of a TRO is "preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing [on the preliminary injunction application], and no longer." Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers , 415 U.S. 423, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974) ; see also Reno Air Racing Ass'n v. McCord , 452 F.3d 1126, 1130–31 (9th Cir. 2006). For a court to grant a preliminary injunction, the plaintiff "must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The last two factors merge if the government is a party. Drakes Bay Oyster Co. v. Jewell , 747 F.3d 1073, 1092 (9th Cir....