Approved Ordinance 2067

APROVED ORDINANCE NO. 2067

AN ORDINANCE ADDING NEW SECTIONS 9.20.120 THROUGH 9.20.130 TO CHAPTER 9.20, "PARKS AND PUBLIC PLACES," OF TITLE 9 "PUBLIC PEACE MORALS AND SAFETY," OF THE GLENDORA MUNICIPAL CODE, TO REGULATE HOMELESS ENCAMPMENTS ON, NEAR, OR UPON CRITICAL INFRASTRUCTURE, SENSITIVE USE PROPERTY, OR IN HIGH FIRE AREAS

THE CITY COUNCIL

City of Glendora, California

WHEREAS, reducing homelessness and the impacts of encampments on public property pose challenges for California cities. In Martin v. City of Boise (9th Cir. 2018) 902 F.3d 1031, 1046, superseded, Martin v. City of Boise (9th Cir. 2019) 920 F.3d 584, the Ninth Circuit held "the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter." (Ibid.); and

WHEREAS, the Boise decision applies only to the issuance of criminal penalties for sitting, sleeping, or lying outside to persons experiencing homelessness who cannot obtain shelter; and it does not apply to the issuance of penalties-criminal or otherwise-for unlawfully sitting, sleeping, or lying on private property. (Ibid.); and

WHEREAS, the Boise court qualified its holding, expressly stating that it was not suggesting "that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside. 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." (Boise, supra, at 1048, n. 8.) "[T]he 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." (Ibid, citing Boise, supra, 902 F.3d at 1035 [emphasis in original].); and

WHEREAS, wildfires are a frequent natural disaster in California, causing significant harm and loss to individuals, communities, wildlife and great swaths of natural landscape and the frequency, duration and size of wildfires have increased over the last several decades; and

WHEREAS, researchers at UC Irvine reported that the State's burn season has grown longer and longer over the last 20 years, now beginning in May, rather than June, with the peak shifting from August to July. Los Angeles County's (County) unusually extreme heat, coupled with bone-dry terrain, has created ideal conditions for more rapid spread when fires occur; and

WHEREAS, while most of California is subject to some degree of fire risk, specific features make some areas particularly hazardous. State law requires the California Department of Forestry and Fire Protection (CAL FIRE) to identify areas based on the severity of fire hazard that is expected to prevail there. These areas, or "zones," are based on factors such as fuel, slope, and fire weather. There are three zones based on increasing fire hazard: medium, high, and very high.

WHEREAS, Los Angeles County, including the City of Glendora, currently has the largest unsheltered homeless population in the nation. The 2020 Point-in-Time Homeless Count identified 66,000 County residents experiencing homelessness, 72% of whom are unsheltered. The 2020 Point-in-Time Homeless Count identified 145 City residents experiencing homelessness, all of whom are unsheltered; and

WHEREAS, while many of these unsheltered individuals live in urban centers, a growing number have taken refuge in more remote, mountainous regions especially in the City of Glendora. As more people, both housed and unsheltered, live within high fire zones, the risk of fires starting and causing harm and loss of life has also increased; and

WHEREAS, unsheltered individuals are often reliant on fires for everyday survival activities, including cooking food and keeping warm, but these activities also increase the risk of nearby brush catching fire and rapidly spreading. Such individuals living in high-fire zones may miss emergency notifications and may experience challenges in safely evacuating; and

WHEREAS, efforts to notify or evacuate such unsheltered individuals in remote locations can cause undue harm to outreach workers and emergency responders. For these reasons, unsheltered individuals living in the City's high fire zones pose a clear and imminent danger demanding immediate action to prevent or mitigate loss of, or damage to life, health, property and/or essential services; and

WHEREAS, as climate change extends and exacerbates the Glendora fire season, particular areas of the City pose too great a risk of harm or loss of life for residents; and

WHEREAS, it is the obligation of the City to keep its public rights of way clean and available for public use, and to protect the public health, safety, and access by City residents and guests; and

WHEREAS, to mitigate the foregoing risks, the City Council has determined to prohibit outdoor camping in these high fire areas as well as in areas in, upon, under, or adjacent to certain critical infrastructure.

NOW THEREFORE, the City Council of the CITY OF GLENDORA DOES ORDAIN AS FOLLOWS:

SECTION 1. The City Council finds foregoing recitals are true and correct and are incorporate the same herein by this reference.

SECTION 2. The City Council further finds that: (1) a principal threat to the public health, safety, and welfare is the potential destruction of, damage to, or interference with, infrastructure that is critical to the provision of public services such as law enforcement, fire prevention, transportation, and utilities including communication, water, and waste disposal; (2) a further principal threat to the public health, safety, and welfare is the is the potential destruction of, damage to, or interference with the flora, fauna, hillside habit, and wildlife, as well as interference with public services such as law enforcement, fire prevention, transportation, and utilities including communication, water, and waste disposal, within the high fire zones of the City; (3) the destruction of, damage to, or interference with, critical infrastructure and high fire areas, caused by fire, contamination, restricting access, or other causes; and (3) the disruption to or interference with the use of property designated by resolution to be a sensitive use property.

SECTION 3. The City Council declares the purpose of this ordinance is to mitigate the threat of fire and other potential causes of destruction and damage to, and interference with, critical infrastructure or in City high fire areas, in order to protect the health, safety, and welfare of the public, by authorizing the removal of persons and their personal property in, upon, under, or adjacent to certain critical infrastructure or within those areas of the City determined to constitute high fire danger, and to prohibit sitting, lying, sleeping, the placement of bulky items or personal property withing a distance of three hundred (300) feet of a property designated by resolution to be a sensitive use property.

SECTION 4. Sections 9.20.110 through and including 9.20.130 are hereby added to the Glendora Municipal Code to read, in their entirety, as follows (new text in bold italics):

9.20.110. Definitions.

When used in this chapter, the following words and phrases have the following meanings:

"Camp" has the same meaning as in section 9.20.055(a)(1).

"Camp fires" has the same meaning as in section 9.20.055(a)(2).

"Bulky Item" has the same meaning as in section 9.20.100(b)(2).

"Personal Property" has the same meaning as in section 9.20.100(b)(3).

"Critical infrastructure" shall mean and include each of the following:

1. Real property or a facility, whether privately or publicly owned, as approved by resolution of the city council, that the city manager designates as being so vital and integral to the operation or functioning of the city that its damage, incapacity, disruption, or destruction would have a debilitating impact on the public health, safety, or welfare.

Critical infrastructure shall mean and include, but is not limited to, government buildings, such as fire stations, police stations, jails, or courthouses; hospitals; structures, such as antennas, bridges, roads, train tracks, drainage systems, or levees; or systems, such as computer networks, public utilities, electrical wires, natural gas pipes, telecommunication centers, or water sources.

"High Fire Danger Area" has the same meaning as in California Code of Regulations, title 24, part 9, section 202. and includes each of the following:

1. Real property or a facility, whether privately or publicly owned, as approved by resolution of the city council, that the city manager designates as being of such high fire danger that damage, habitat disruption, or destruction would have a debilitating impact on the public health, safety, or welfare.

"Facility" shall mean and include a building, structure, equipment, system, or asset.

"Hazardous waste" has the same meaning as in California Public Resources Code § 40141.

"Infectious waste" has the same meaning as in California Code of Regulations, title 14, section 17225.36

"Sensitive Use Property" shall mean and include school, day care facility, and public property as defined in section 9.60.010 and .020.

9.20.115 Prohibited activities.

A. It is unlawful and a public nuisance for any person to sit, lie, sleep, or store, use, maintain, or place any bulky item or personal property, at the following locations:

1. Critical infrastructure;

2. Within 25 feet of critical infrastructure;

3. Within 25 feet of a vehicular or pedestrian entrance or exit of critical infrastructure;

4. On those portions of a right-of-way that are required by local, state, or federal law to be free of obstruction to first responders, including but not limited to members of law-enforcement, fire-prevention, or emergency-medical-services agencies; or

5. High fire danger area.

B. It is unlawful and a public nuisance for any person to sit, lie, sleep, or store, use, maintain, or place any bulky item or personal property, without the written consent of the owner, except as otherwise provided by resolution of the city council:

1. Critical infrastructure;

2. Within 25 feet of critical infrastructure;

3. Within 25 feet of a vehicular or pedestrian entrance or exit of critical infrastructure;

4. On those portions of a right-of-way that are required by local, state, or federal law to be free of obstruction to first responders, including but not limited to members of law-enforcement, fire-prevention, or emergency-medical-services agencies; or

5. High fire danger area.

C. It is not intended by this section to prohibit overnight camping on private residential property by friends or family of the property owner, so long as the owner consents and the overnight camping is limited to not more than one consecutive night.

D. Nothing in this chapter is intended to prohibit or make unlawful the activities of an owner of private property or other lawful user of private property that are normally associated with and incidental to the lawful and authorized use of private property for residential or other purposes; and nothing is intended to prohibit or make unlawful the activities of a property owner or other lawful user if such activities are expressly authorized by this code or other laws, ordinances, and regulations.

E. It is unlawful and a public nuisance for any person to sit, lie, sleep, or store, use, maintain, or place any bulky item or personal property, in or upon any street, sidewalk, or other public right-of-way within the distance three hundred (300) feet of a property designated as a sensitive use.

F. It is unlawful and a public nuisance for any person to sit, lie, sleep, or store, use, maintain, or place any bulky item or personal property in a manner that impedes passage, as provided by the Americans with Disabilities Act of 1990, Pub. L, No. 101-336, 104 Stat. 328 (1990), as amended from time to time.

G. It is unlawful and a public nuisance for any person to sit, lie, sleep, or store, use, maintain, or place any bulky item or personal property within ten feet of any operational or utilizable driveway or loading dock.

H. It is unlawful and a public nuisance for any person to sit, lie, sleep, or store, use, maintain, or place any bulky item or personal property within five feet of any fire hydrant, fire plug, or other fire connection.

I. It is unlawful and a public nuisance for any person to sit, lie, sleep, or store, use, maintain, or place any bulky item or personal property within five feet of any operational or utilizable building entrance or exit.

9.20.120. Summary abatement.

A. Any violation of section 9.20.115 may be abated in accordance with procedures in section 9.20.100(i); but a violation of section 9.20.115 may be abated immediately by the city without prior notice, if the violation poses an imminent threat to public health or safety.

B. Abatement pursuant to subsection A may include, but is not limited to, removal of bulky items, personal property, hazardous waste, infectious waste, junk, or debris; and securing the perimeter of the property with fencing, gates, or barricades to prevent further occurrences of the nuisance activity.

C. Regardless of the city's authority to conduct abatement pursuant to this section, every owner, occupant, or lessee of real property, and every holder of any interest in real property, is required to maintain the property in compliance with local, state, and federal law; and is liable for violations thereof.

D. The cost of abatement, including all administrative costs of any action taken hereunder, may be assessed against the subject premises as a lien, made a personal obligation of the owner, or both, in accordance with procedures in section 9.20.100(i).

9.20.125. Interference with summary abatement.

No person shall willfully prevent, delay, resist, obstruct, or otherwise interfere with a city official, employee, contractor, or volunteer in their execution of an abatement pursuant to this section.

9.20.130. Violation-Penalty.

A. In addition to any other remedy allowed by law, any person who violates a provision of this chapter is subject to civil actions and administrative penalties pursuant to this code.

B. Violations of this section are hereby declared to be a public nuisance.

C. Any person who violates a provision of this section is liable for civil penalties of not less than $250 or more than $25,000 for each day the violation continues.

D. All remedies prescribed under this section are cumulative and the election of one or more remedies does not bar the city from the pursuit of any other remedy to enforce this chapter.

SECTION 5. Adoption of this ordinance is exempt from the California Environmental Quality Act ("CEQA") under Section 15061(b)(3) of the CEQA Guidelines, which provides that CEQA only applies to projects that have the potential for causing a significant effect on the environment. It can be seen with certainty that there is no possibility that adoption of this ordinance, amending existing sections to the City's municipal Code to clarify the intent, will have a significant effect on the environment. Therefore, adoption of this ordinance is not subject to CEQA.

SECTION 6. If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of any competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each and every section, subsection, sentence, clause and phrase thereof not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional.

SECTION 7. The City Clerk shall certify to the passage and adoption of this ordinance, and shall make a minute of the passage and adoption thereof in the records of and the proceedings of the City Council at which the same is passed and adopted. This ordinance shall be in full force and effect thirty (30) days after its final passage and adoption, and within fifteen (15) days after its final passage, the City Clerk shall cause it to be posted and published in a newspaper of general circulation in the manner required by law.

PASSED, APPROVED and ADOPTED this 10^th day of May 2021.

BY: KAREN K. DAVIS,

Mayor

APPROVED AS TO FORM:

Aleshire & Wynder, LLP

WILLIAM W. WYNDER,

City Attorney

CERTIFICATION

I, Kathleen R. Sessman, City Clerk/Communications Director of the City of Glendora, do hereby certify that the foregoing Ordinance was introduced for first reading on the 12^th day of April, 2022, by the following roll call vote:

AYES: COUNCIL MEMBERS: Allawos, Fredendall, Thompson, and Boyer.

NOES: COUNCIL MEMBERS: Davis

ABSENT: COUNCIL MEMBERS: None.

ABSTAIN: COUNCIL MEMBERS: None.

Thereafter, said Ordinance was duly approved and adopted at a regular meeting of the City Council on the 10^th day of May, 2022, by the following roll call vote:

AYES: COUNCIL MEMBERS: Allawos, Fredendall, Thompson, Boyer, and Davis.

NOES: COUNCIL MEMBERS: None.

ABSENT: COUNCIL MEMBERS: None.

ABSTAIN: COUNCIL MEMBERS: None.

I further certify that said Ordinance was published as required by law in a newspaper of general circulation in the City of Glendora, California on the 19^th day of May, 2022.

Dated: May 11, 2022

KATHLEEN R. SESSMAN

City Clerk/Communications Director

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