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The Vermont American Civil Liberties Union is expressing concerns about Burlington’s proposed policy on homeless encampments as the city moves toward solidifying those guidelines.

Mayor Miro Weinberger says the policy addresses public health and safety concerns while remaining compassionate to the city’s homeless. But Vermont ACLU staff attorney Jay Diaz said the policy, as drafted, infringes on the property rights of the homeless.

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“It doesn’t do anything for actual people who are living outdoors during some of the coldest months, and some of the warmest months,” he said. “It’s really about the city retaining the ability to remove people at their whim with no way to challenge those decisions.”

The ACLU and the city are currently facing off in federal court over the property rights of homeless individuals in a lawsuit originally filed with the goal of blocking the removal of a homeless encampment in October 2017. A judge allowed the city to clear the North Avenue homeless encampment last fall.

The city council’s public safety committee heard a presentation on the policy draft from city attorney Eileen Blackwood at its Nov. 15 meeting, and decided to have the city make some tweaks before voting to move it forward to the full council for approval.

Weinberger said that the city did not have guidelines for addressing homeless encampments until a few years ago, and wants to formalize them into a city council approved policy.

He said there is no significant difference between the policy that is being worked on now and how the city currently deals with these encampments.

“The big change is to go from no policy a few years ago, to a clear policy that tries to balance the significant compassion we have as a city and community for people experiencing homelessness with other important public values,” Weinberger said.

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Weinberger said that these values include the need to ensure public safety in the city, address public health conditions at these encampments and allow the broader public to enjoy city owned land.

Policy details

The draft policy lays out guidelines for areas where camping is specifically prohibited and for areas in which camping is not specifically prohibited.

The guidelines for areas where camping is specifically prohibited state that the city will identify campers and inform them that if they continue camping in the area, they may face legal action. If no campers are present, the police can post written notice that camping is prohibited and give a time and a date for the city to dispose of any remaining property.

“If the campers have not left or removed their property by the date/time specified, they may be ticketed if they have violated an ordinance, they may receive a notice of trespass if one is warranted, and/or the City may dispose of any property left at the site,” the draft policy states. “In general, City staff are expected to enforce the no-camping rules in these areas.”

Diaz said disposing of the property of the homeless in this way was disgraceful.

“For people who literally have the least, and most of their property is necessary to preserve their life and health, putting out a blanket statement of, ‘We’re going to destroy everything’ is simply shameful,” Diaz said.

Weinberger said due process concerns about destroying personal belongings are a “misreading” of the policy.

“The policy lays out clear notice provisions, especially for that reason, to try to give ample and fair notice to people that the encampment is going to move to give them the opportunity to move,” Weinberger said.

The policy states that the city “generally has little or no storage space for individual’s belongings” but the head of the department doing the removal can work out a short-term plan to store belongings as long as it is done in writing and a disposal date for the belongings is specified.

Many city departments are involved in the process, including the department of public works; the city attorney’s office; the parks, recreation and waterfront department; the community and economic development office and the mayor’s office.

City councilor Adam Roof, the chair of the public safety committee, said the committee talked extensively about how to deal with personal belongings in a humane way and is currently exploring its options. He said the city wants to avoid getting into the business of holding onto and redistributing property.

Most of the time, the people living at encampments can be located easily, Roof said. The other end of the spectrum are encampments that have been clearly abandoned for a substantial amount of time, such as those completely covered in dirt. In that case, there is no problem discarding the items left behind, he said.

Roof said he is most concerned about the rare middle-ground occasions where it is clear the encampment is not abandoned but the person living there can’t be located.

“What I’m concerned about is us destroying with full knowledge knowing its not abandoned,” he said.

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Roof said the committee is exploring the possibility of working with a third party — likely a community partner — to store and return personal items that are found in these encampments.

The policy also addresses the conditions in which the city can remove encampments on land where camping is not specifically prohibited. The policy states that encampments that are not in prohibited areas will only be noted for removal if they meet certain criteria and receive outreach from the city.

It sets a broad list of possible reasons for removal.

The policy states the city can take action if there are health and safety issues related to living conditions; ecological issues; dangerous structures on site; the amount or nature of possessions or materials on site; inconsistency with intended public use of the site; interference with the ability of others to use the property; serious or repeated legal violations; and other severe or pervasive issues that may warrant removal.

The city attorney can advise it be disbanded if the encampment is on property owned by the city and meets those criteria.

The city would then post a notice at the site informing campers that it is considering disbanding the encampment, that the decision will be made in three days and that they should contact the police department’s community affairs liaison with questions or objects. The mayor is given the authority to determine if removal is warranted, whether or not an objection is received.

Jared Carter, a professor at Vermont Law School and the director of the Vermont Community Law Center, is working with Diaz on the ACLU’s lawsuit. He said the city should appoint an independent arbitrator, not the mayor, as the decision maker if there is an objection to removal.

“There’s no process for a fair hearing,” Carter said. “I think that’s really important, and something that is missing.”

Weinberger said the mayor and city council are elected to be stewards of the city’s public resources and its important they retain the ability to make decisions about public land.

“It would be problematic to take away that responsibility from the city’s elected leaders and put it in the hand of another party,” he said.

If the city deems removal of the encampment an emergency, it can remove the encampment after three days’ notice.

Carter took issue with the city laying out regulations for areas where camping is not specifically prohibited.

“If city council has not, through its process, prohibited camping, that means camping should be allowed there,” he said.

Weinberger said having guidelines for city land where camping is not specifically prohibited is necessary due to the serious public health and safety concerns at the encampments.

For example, in 2016 a man, Amos Beede, was killed at a homeless encampment in the city.

The policy lays out that the city will direct those living in these encampments to the services the city offers whenever possible.

Roof said the intention of the policy, in his view, is not to give the green light for the police department to freely clear encampments but to clearly establish in which instances the city should be involved in removal.

“We should be as informed as possible, but also be respectful to the basic human dignity that everyone has,” he said. “We also need to be setting expectations for people who are camping and saying very clearly, this is where you can’t be, and this is what you can’t do.”

What’s next?

The ACLU filed suit in October 2017 on behalf of three homeless Burlingtonians and has since adjusted its complaint to focus on the property rights of one of the men, Brian Croteau.

Diaz said that after the ACLU told the city its policy on destroying the property of the homeless was unconstitutional, the Burlington Police Department instituted a new policy that it would hold onto belongings for 30 days.

The lawsuit alleges that the city destroyed Croteau’s property after clearing out encampments where he had been living. The case is moving toward the discovery stage.

Roof said that the public safety committee was taking its responsibility to vet the new policy seriously and not just rubber-stamping it and passing it on to the full council for consideration.

Roof said the council’s public safety committee asked Blackwood and the city attorney’s office to examine a few aspects of the policy and come back to the committee with possible options early next year.

The committee wants the city attorney’s office to consider how the city ensures that it documents situations thoroughly, provides services to those living in encampments who need it, and allows an opportunity for people living in an encampment to rectify minor issues without removal. The committee also wants the city to think about how to deal with cases where only one individual is causing problems, instead of a full encampment.

The committee also discussed how the policy could set guidelines for what constitutes and emergency and what does not. Roof said the committee discussed working to communicate the policy to the community.

Wider context

Weinberger stressed that this policy should be viewed in the wider context of other efforts the city is taking to address homelessness.

He said that the city has been encouraging the construction of more housing to address the affordable housing crisis, has fought for the creation and extended operation of a low-barrier winter warming shelter and establishing a coordinated entry effort among community partners to use resources in the most effective way.

Weinberger added that the city’s housing-first efforts — prioritizing the “chronically homeless” in supportive housing placement — has led to the decline in chronic homelessness in the city. The U.S. Department of Housing and Urban Development defines “chronic homelessness” as people living with disabilities who experiences extended periods of homelessness.

The “Point In Time” count of homeless individuals on a single night in Chittenden County showed a decrease in the number of people experiencing chronic homelessness, from 76 people in 2014 to 35 in 2018.

“We’ve got work to do still, but I think the fact that the chronically homeless population has come down is a sign of progress,” Weinberger said. “I think we are poised to make further gains with this new coordinated entry system, so I think we’ve laid the groundwork for improvements in the years ahead.”

But that point-in-time count showed an increase in overall homelessness in the county from 291 in 2017 to 359 in 2018.

Diaz said there is much more to be done, and that the city should devote more resources to “housing first” programs to provide housing to chronically homeless people.

Carter said the city should set a moratorium on removing the encampments and destroying personal property.

While he said he was not surprised to hear those critiques of the policy, Weinberger said his office often receives calls from residents concerned that the city should be doing more to clear out the encampments.

“I’m sure there are others who won’t think it will go far enough,” he said.

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