News from the Continuum

By Sarah Owens and Michael Livingston

Monday night, after receiving notice on Friday that the Oregon Housing and Community Services department (OHCS) was finally getting around to distributing the second round of pandemic-related Homeless Emergency Solutions Grant funds (ESG-CV2), with about $6M slated to come to providers serving Marion and Polk counties, the City agreed to allow Church at the Park to use the winter shelter site at 2640 Portland Road for 24-hr vehicle- and pallet-structure camping from the end of March through the end of October 2021.  It did so by enacting Resolution 2021-11, which amended Resolution 2020-49 which had declared a state of emergency relating to unsheltered persons through 6 October 2021.  Whitworth, W.  "Salem City Council approves new 'Pallet' shelter site for homeless."  ( March 2021, Statesman Journal.)  Councilor Hoy said Monday night that the funds would be a "game-changer", but did not offer specifics.  

The notice of ESG-CV2 funding is relevant because that is where Church at the Park will get the estimated $275K needed to pay for staff and PPE, and $140K for the pallet structures.  Were it not for the pandemic, these funds would not be available -- and they will not be available for long, nor are they  unrestricted.  Allowable uses are limited to emergency shelter, street outreach and rapid re-housing.     

ESG-CV2 FAQs

Not that anyone would know this from the Council discussion.  For reasons not hard to imagine, the City is taking credit by fronting through Gretchen Bennett's ever-empathetic manner the appearance of sincere concern and a desire to shelter/house more of Salem's chronic homeless population, even as management prepares for a return to the pre-pandemic "policy of chasing them around town."  Under Blake v. City of Grants Pass and HB 3115 if it passes, the City's enforcement policy requires that they have, or be able to argue as the Mayor did in 2020, that the City's homeless services and shelter options are sufficient to "remove any barrier or excuse for anyone to claim that camping on our community’s sidewalks represents a needed choice or situation." See "Mayor Bennett: State of City" (12 February 2020).  

Some might argue that what matters is that the City is working to increase homeless services and shelter options, not why.  However, that assumes all homeless services and shelter options are of equal value when they are not.  They run the gamut from volunteer to trained professionals, from religion to evidence-based, from shoe-string to multi-million dollar institutions, from basic needs to permanent housing.  The "why" dictates whether the approach will be management/minimalist, or ending/maximalist.  Contrary to popular belief, only a concerted effort at the latter can, in fact, reduce the chronically homeless population of Salem.  

The City's rhetoric always has been a problem, but it is getting worse.  Referring to vehicles, tents, pallet structures and parks as "shelter", as the City is now doing, does not make them fit for human habitation.  See "City Approves More Overnight Shelter for Area Homeless"  (23 March 2021, Flash Alert) (referring to the approval of the managed camp at Portland Road).  Council members may make dubious claims that Church at the Park programs have moved people into permanent housing, but have they?  Does it matter?  If the public are somehow persuaded that the City is doing all it can to "address homelessness" with basic needs programs and hopeful rhetoric, will homelessness cease to be the City's top concern?         

The decision to keep the Portland Road site open through next fall was a bit of a bait-and-switch for the Highland and Northgate neighborhoods, whose residents back in November had been given to understand the building would be 1) for vulnerable/elderly participants, 2) overnight only, and 3) winter only.  They were also told in November the program might be expanded to vehicle/tent camping, but not year round.  See November 5, 2020 meeting video here.  The City did recently let neighbors know about the new plan, however.  

Resolution 2021-11 makes much of not allowing managed camps in areas zoned single family (RM), which is small comfort to concerned homeowners on the east side of Brooks Avenue NE in the Pine Street Mixed Use Overlay Zone.  (Portland Road site in red) 

In other news, Oregon took the number three slot for the highest percentage of unsheltered homeless in 2020. HUD's 2020 Annual Homeless Assessment Report to Congress.  If Oregon were to adopt Salem's latest "innovative" approach to the problem, it would need only about 300 Portland Road sites and $1.2M/yr to "address" the unshelteredness problem ($400K per site for pallet structures, staffing and PPE with toilets extra).  Perhaps less, depending how long the pallet structures last.  Wonder why they have not done that.  Will Councilors Lewis and Phillips advocate for expanding Salem's managed camps when the City, as opposed to the federal government, has to pay?  Tune in this time next year and find out.     

Open Letter to City Council re: HB 3115

To the Salem City Council:

Friday, the Legislative Committee agreed to recommend that the City Council oppose HB 3115 as written.  HB 3115 attempts to "codify" U.S. District Court's decision in Blake v. City of Grants Pass, which held that local laws regulating sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to the public must be objectively reasonable as to time, place and manner with regard to persons experiencing homelessness. 

HB 3115 provides in pertinent part that

Any city or county law that regulates the acts of sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to the public must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness.  (Emphasis added.)

HB 3115 allows 1) a homeless person 2) to bring a facial or as-applied challenge, and 3) receive attorney fees IF successful and IF the governing body received the required 90-day notice. 

HB 3115 is the result of a collaborative process that began last summer and that included representatives from the City of Salem.  HB 3115 "represents a working compromise between the Oregon Law Center, League of Oregon Cities, and the Association of Oregon Counties", according to Courtney Knox Bush of the City Manager's Office.  Its chief sponsor is Speaker Kotek. 

When the Leg Ctee first discussed HB 3115, City staff had two "primary concerns":  one, "our timeline is to get enough shelter space up...by 2023 and that timeline is not going to shift", two, "liability."  However, after Mayor made clear his opposition, staff came back to the Leg Ctee yesterday with a host of specious objections (set out in fuller detail at the end of this email).  Only three merit discussion.

One:  that the definition of "public property" is overbroad.  HB 3115 states that "public property" has the meaning given that term in ORS 131.705 ("public lands, premises and buildings, including but not limited to any building used in connection with the transaction of public business or any lands, premises or buildings owned or leased by this state or any political subdivision therein."  HOWEVER, the bill restricts only those laws that regulate outdoor public property that is open to the public.  Any further definition of "public property" must be determined by the local governing body in its ordinance or regulation.   

Two:  that the "standing" provision is overbroad.  HB 3115 states "a person experiencing homelessness may bring suit."  The bill does not allow one who is merely interested as a member of the general public to bring suit, but limits standing to persons currently experiencing homelessness, a fact-based issue that can itself be challenged in court, as it often is.  What the City truly objects to is not "standing", but that HB 3115 allows facial challenges and provides attorney fees in limited circumstances. 

Three:  the facial challenge and attorney fees provisions will promote "endless litigation."  In fact, HB 3115 is designed to have the opposite effect.  HB 3115 requires potential plaintiffs to provide governing bodies a minimum of 90 days' notice of intent to sue, including "actual notice of the basis upon which the plaintiff intends to challenge the law."  I know from experience that Salem's City Attorney knows very well how to dismiss a citation or obtain an ordinance amendment when faced with a sound legal challenge.  That is how HB 3115 is supposed to work.  The City of Salem should want its laws to conform to the requirements of Blake v. City of Grants Pass and HB 3115 permits those most affected by laws that do not conform to demand they do so.  The City of Salem should welcome that participation, not try to smother it.

The HB 3115 work group attempted but was unable to reach consensus on greater definition of the sort that the Leg Ctee now claims is needed.  That is precisely why the Leg Ctee are now calling for greater definition;  they know agreement on such definition isn't feasible.  It is also why the Leg Ctee will not be offering any specific amendments.  

HB 3115 is intended to, and hopefully will, bring local laws into compliance with Blake v. City of Grants Pass, so that local governments stop interfering with the constitutional protections of their homeless residents.  The City Council should be supporting the bill, or at least not opposing it, along with the Oregon Law Center, the League of Oregon Cities, and the Association of Oregon Counties, and many other organizations and individuals. 

Sarah Owens

CANDO

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from the March 19, 2021 Legislative Committee Meeting

Courtney Knox Bush of the City Manager's Office: 

[HB 3115] is really broad in its reach...unclear in its scope and how that might lead to litigation to define some of the terms...the ordinance just has to be on the local government's books it doesn't have to be enforced if it's just present it's grounds for litigation...anyone has standing...public property is really broadly defined...the reasonableness standard potentially could impact things that would be viewed to have a time, place or manner impact that may seemingly be unrelated, so for example we have an ordinance that closes parks at sundown that could be something that could get caught up in this.  And so that's really where our concern is.

Councilor Andersen

What I'm interested in [is] the...standing, I mean it sure seems to me like it's the broadest standing I've seen and I'm also interested in the attorney's fees I mean all of those things don't sound like they're good for the City's efficient operation of what it needs to do with the understanding that we are doing what we can for homelessness on the streets and other things. 

Assistant City Attorney Marc Weinstein

My analysis and I think it's shared in the legal community is that when you take those issues together with the issues that Courtney mentioned there's a lot of vagueness within this, the scope of this bill, and together with the potential for really expansive standing rights to sue that this could lead to a lot of litigation, costly litigation, as cities attempt to get the clarification that is not in the bill.  The things that Courtney mentioned and that it unfortunately even though it's designed in theory to prevent litigation that is cities look to get that clarification that's not in the bill it's gonna actually wind up promoting litigation that's going to be very expensive and have a lot of impacts on the City's ability to manage the City effectively.  I don't mean that as in manage the unsheltered population, but just its everyday functioning of the City.

Salem Police Lt Aguilar

[HB 3115] would definitely affect us, especially given...the broad definition of public property...certainly we would need to do some work and really hone down what's really the intent of the bill and then how we would be able to work within it...we would support the bill but definitely with some amendments and some better definitions.

Courtney's sum up of the issues

The attorney fees, the standing, the broad reach, the lack of clarity in the scope as it pertains to what public properties are, and the reasonableness standard...

Marc's additions to Courtney's sum up

The clarity regarding the potentially very broad reach, the definition of public property, what constitutes reasonableness, what constitutes a person experiencing homelessness, and what it means to be a law that regulates the act of sitting, lying, sleeping or keeping warm and dry outdoors on public property...

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City Opposes State Limits on Sit-Lie, Camping Bans

By Sarah Owens and Michael Livingston

Legislative Committee March 19, 2021 Meeting

The Legislative Committee today agreed to recommend that City Council oppose HB 3115 (which provides that local law regulating sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to the public must be objectively reasonable as to time, place and manner with regard to persons experiencing homelessness) unless it is amended, consistent with the March 9 letter from Portland Commissioner Dan Ryan to Representative Bynum, Chair of the House Committee on Judiciary.  That letter states that Portland 

[W]ould like to see a narrower definition for “public property” to ensure that local jurisdictions can place reasonable restrictions of the use of public space, specifically as it relates to environmentally sensitive land and structures like tents on sidewalks.  It is important that HB 3115 does not end up as an unfunded mandate on local jurisdictions. Additionally, it is important that this legislation not be a conduit for endless litigation.

City staff also told the Committee such a law might, for example, affect the City's ability to close parks  at sundown -- or even "manage the City effectively."   

The bill states that "public property" has the meaning given that term in ORS 131.705 ("public lands, premises and buildings, including but not limited to any building used in connection with the transaction of public business or any lands, premises or buildings owned or leased by this state or any political subdivision therein") and requires that

Any city or county law that regulates the acts of sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to the public must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness.  (Emphasis added.)

One never would have known from the fifteen minutes or so that the Committee spent on HB 3115 that the City participated over the summer in the bill-drafting work group -- a group that, according to Commissioner Ryan's letter, reached "consensus on the importance of preventing criminalization of homeless individuals for living their lives in a public space."  Mayor Bennett, of course, did not participate in that work group.  He is fine with criminalizing homeless individuals for living their lives in a public space, regardless of the U.S. District Court's decision in Blake v. City of Grants Pass which HB 3115 is intended to implement.  He thinks the City's enforcement powers are already too limited, and he wants more, not less, authority to "chas[e] them around town."  See "House Bill Kills Mayor's Sit-Lie Buzz"  (4 March 2021).  So it was only natural that he, in his inimitable "I dunno, I'm just asking" fashion, kept pressing the Committee until there was agreement to recommend opposing the bill as writ, and to have someone in the City Attorney's office testify in opposition on the City's behalf. 

The Committee did not discuss the -1 amendment that's been proposed, which amendment would simply include state laws that regulate sitting, lying, etc., as well as city and county laws.  It is possible, but unlikely, the City will propose amendments, as opposed to writing a letter echoing Commissioner Ryan's letter and the ill-informed letter submitted by Marion County Commissioners in opposition to the bill.   

Open Letter to Salem City Council re HB 3115   

3/23/21 update: City Council approved all of the Leg Ctee's recommended positions without discussion. 

City Manager Steve Powers submitted written comment on HB 3115  to the House Judiciary Committee that included the below paragraph lifted from the Leg Ctee's report of March 19, 2021.

[I]n its current draft, the language in HB 3115 is overly broad and unclear.Without amendments, the bill will require extensive litigation to clarify the scope.  To avoid costly litigation which may restrict services to those most in need, amendments to HB 3115 would help to clarify the scope of the bill relating to the definition of public property, the type of laws the bill would affect, clarification of the reasonableness standard, and who has standing to bring a lawsuit against a local government under the law.  

The idea that HB 3115-related litigation "may restrict services to those most in need" is a new one, not discussed by the Leg Ctee.  Apparently, someone in the City Manager's Office thinks veiled threats to restrict homeless services are somehow persuasive.  

Later in the meeting, Council approved using the Portland Road winter shelter site for a managed vehicle- and pallet-structure camp from the end of March through the end of October.  See "News from the Continuum" (24 March 2021).  

3/25/21 update:  HB 3115 moved out of the House Judiciary Ctee without amendment, "do pass."

4/14/21 update:  Harrell, S. "Salem area officials worry bill to decriminalize homelessness will just lead to more litigation"  ( April 2021, Salem Reporter.) (no analysis, just a recitation of the "reasons" offered for opposition). 

4/15/21 update:  HB 3115 third reading.  Carried by Power.  Passed 36-22 along party lines.  Awaiting first reading in the Senate.

6/9/21 update:  HB third reading.  Carried by Dembrow.  Passed.  Ayes, 18; Nays, 10--Anderson, Boquist, Findley, Girod, Hansell, Johnson, Linthicum, Robinson, Thatcher, Thomsen; Excused, 2--Heard, Kennemer.

3/16/21 Minutes

  

Members: Valerie Freeman

Organizations: Alan Mela, Grocery Outlet

City, County and State Representatives: Virginia Stapleton, Ward 1 Councilor;  Tammy Starrs, Public Works; David Smith, Salem Police Department

Guests: none

The regular meeting of CANDO was called to order at 6:00 p.m., on Tuesday, March 16, 2021.  The meeting was conducted by Zoom video-conference.  The Chair and Secretary-Treasurer were present.  

The agenda and minutes of the January meeting were approved unanimously.

Cpl. Smith reported that, as of January, the Downtown Enforcement Team moved from three officers and a sergeant to full staffing at 5 officers, a corporal and a sergeant.  In January, there were about 27 tents downtown, and that number has been reduced to a steady 3 or 4.  There is an established camp under High Street NE that the City is in the process of removing.  Otherwise, the DTE is engaged in routine patrols, focusing on parks and “livability” issues, making sure downtown “looks halfway clean.”  

Councilor Stapleton gave a report on Council activities and answered questions.

Tammy Starrs gave a presentation on the Capital Improvement Plan.

 

Michael Livingston gave a presentation “One Year In: the Mid-Willamette Valley Homeless Alliance.” 

Land Use Chair Bryant Baird’s motion to submit a comment recommending approval of the 34-unit multi-family facility project located at 220 Cottage St NE, Salem, Oregon -- Case No. DR-CU-SPR-ADJ21-02, passed unanimously. 

There being no further business before the board, the Chair adjourned the meeting at 7:00 p.m.

Mayor Bennett State of City

By Sarah Owens and Michael Livingston

 

Chuck Bennett's been in City government a long time.  And after eight years on Council and three years as Mayor, he's begun his second mayoral term.  His 2021 State of the City address was his fourth.  

 

Last year, Bennett's remarks on the City's "homeless crisis" were focused on persuading Council to enact a sit-lie ordinance.  Bennett believed that then-existing homeless services and shelters "remove any barrier or excuse for anyone to claim that camping on our community’s sidewalks represents a needed choice or situation." See "Mayor Bennett: State of City" (12 February 2020).

 

It is untenable that after decades of work and tens of millions of dollars to preserve our historic downtown as the vibrant commercial and residential center of this region, it is being jeopardized by the current unnecessary use of our public sidewalks for permanent, 24-7 unsheltered living space with all of the attendant health and safety problems and costs. There are no more excuses for letting this situation continue. The council needs to heed our police chief’s advice to enact a sit/lie ordinance.

 

A couple of weeks later, Council passed Ordinance Bill 6-20 on the first reading 7-1.  The City could ban sitting and lying during certain hours only if shelter and hygiene facilities were readily available, so the City made plans to put a big tent and chemical toilets in Marion Square Park at a cost of tens of thousands of dollars.  See "Sit-Lie Passes, But it Will Cost"  (9 March 2020).

 

Ordinance Bill 6-20 was due to become effective immediately on second reading, March 23, 2020, but C19 hit and the Governor called an end to gatherings of more than 50, then 25, then 10, making the tent solution unworkable and effectively killing Ordinance Bill 6-20.  A few days later, Council adopted City of Salem Resolution 2020-18 prohibiting “public gatherings” in “public spaces” and restricts public spaces to active pedestrian use. Violators could be arrested for trespass under SRC 95.550.  The resolution also suspended the camping prohibition (SRC 95.720) in all unimproved areas in Wallace Marine and Cascade Gateway parks.  

 

The park-camping suspension was extended several times and is now due to expire June 1, 2021.  See "City to Extend Park Camping to June 2021" (4 December 2020).  One of the extensions, Resolution 20-506, substituted the prohibition on public gatherings with a mask/social distancing requirement, and provided that "publicly owned sidewalks, including landscape strips, are limited to active pedestrian use", enforceable by trespass under SRC 95.550. So, the City still effectively bans sitting, lying and sleeping on sidewalks, it's just disguised as a C19 mitigation measure.  That the City has not, for a variety of reasons including C19 and Blake v. City of Grants Pass, seriously enforced the ban has been a source of great frustration to Mayor Bennett who, days before his State of the City address, was publicly complaining about the Liberty Street sidewalk outside Rite Aid being "a dump."  See "House Bill Kills Mayor's Sit-Lie Buzz"  (4 March 2021).  

 

From Mayor Bennett's standpoint, the main difference between the state of the City's homeless last year and this year was that, as much as he might have wanted to, he could hardly claim in 2021 that existing homeless services and shelters "remove any barrier or excuse for anyone to claim that camping on our community’s sidewalks represents a needed choice or situation."  So he made the claim indirectly, in a long speech-within-a-speech that lasted 10 minutes (entire address lasted one hour).  The text of the speech appears below in its entirety.

Mayor Bennett State of the City, March 10, 2021

First, he indirectly acknowledged that the electorate is upset with the City's inadequate response to the problem, and argued that the problem is nationwide, complex, under-resourced and growing, though his numbers are bad:               

Over the past several years, homelessness and its impacts has replaced by far any other issue on the public’s mind. No wonder. It’s disturbing on a basic humanitarian level to see our fellow residents living in what can be degrading, unsafe, unsanitary and deeply unfortunate conditions.  The homeless condition invites a range of reactions from scorn or fear to deeply held religious beliefs of personal responsibility to alleviate the situation.  There's a deep hope that there is some simple or universal solution.  What you learn as you get very close to this on a public policy level is that there isn't one thing in government that we can do to solve this problem.  It's truly an all-hands-on deck, all resources concentrated at the local level on this situation, and the price tag is well beyond what we have seen invested into mental health addiction, chronic health care, these needs and the truly affordable housing for every income level [sic].  Oregon is the seventh leading state contributing to the overall homeless population, sitting in order behind Massachusetts, Washington, Texas, Florida, New York and California.  In 2019, Marion County saw a 20% jump in the number of reported homeless individuals, moving from 1,218 to 1,422.  [This is not true.  The higher number appears to be the preliminary 2019 figure reported in the Statesman Journal linked here, though the article cites a total of 1,462, not 1,422. However, while the 2018 PIT Count showed 223 homeless persons in Polk and 995 in Marion, for a total in both counties of 1,218 -- the figure cited for Marion alone -- the final 2019 PIT Count showed 121 homeless persons in Polk and 974 in Marion, for a total in both counties of 1,095.  That's a difference of twenty-one persons, not 20%.  See "The Struggle to Count Bodies and Beds" (18 January 2021).]  Our homeless advocate groups expect the number to rise between 1500 and 1800 homeless people in Marion County today.  [Also not true.  The 1,800 figure is based on current HMIS data and has been cited for at least the past year as being more reliable estimate than PIT Count figures.]  That number is too high.  Based on interviews with people who are homeless in our region, many have untreated mental illness, addictions, and chronic health conditions worsened by long periods of homelessness.  Also some individuals have pre-existing barriers to housing, such as criminal history, evictions, and a poor rental history.  Providing shelter for someone who is experiencing chronic homelessness requires intensive case management and a network of community-based services.

Then he gave a kitchen-sink account of all efforts, no matter how remotely related, for which the City could take some amount of credit.  Message:  look at all the City is doing and stop complaining.

The City is currently working with our homeless service providers to increase shelter capacity, adding more permanent affordable housing units, and reducing barriers that lead to homelessness.  We are dedicated to finding solutions through a community-wide coordinated approach.  That means strengthening our crisis response systems as we advocate for state assistance, for more supportive housing as well as a navigation and sobering center.  It means retooling our criminal justice involvement through a mobile-crisis response structure that has trained professionals that can assist homeless individuals on the spot with direct access to addiction treatment, mental health counseling and health services.  We're asking again that the state support a sobering and a navigation center to help homeless persons access needed programs of all types, including mental health and addiction services and a variety of other programs that assist them out of their situation.  In addition to our collaborative long term planning agendas, Salem is involved in several current programs to help mitigate the homeless crisis.  Those include additional security services for downtown.  Last year the Salem Housing Authority opened Redwood Crossings, 37 units of permanent supported housing.  Salem Housing Authority owns and manages the property, contracting with Arches to support residents.  Salem Health leases six of the housing units for transitional respite care for homeless individuals coming out of the hospital or with long-term illness.  Salem Housing is securing funding for Sequoia Crossings, which will add about 75 units of permanent supportive housing to Salem.  It will own and manage the property, contracting with Arches to support residents.  The Homeless Rental Assistance Program HRAP, was launched in July 2017.  The City through the Salem Housing Authority has committed $2.1 million dollars to support the homeless rental assistance program.  It links chronically homeless individuals to housing, food, furnishings and social services.  HRAP has housed more than 300 individuals since its inception.  This, the largest Housing First program in Oregon, has had an 83% success rate moving homeless residents into permanent housing. The Salem Housing Authority operates a community partners property tax exemption program to encourage the inclusion of affordable units in market rate developments.  This program provides a tax exemption and requires the housing authority be designated as general manager in a five-year renewable partnership.  It's an agreement to achieve the tax exemption.  Salem Housing Authority does not become a partial owner or an active manager of the property.  It's really interest from apartment developers and owners who make this happen, and any who are interested are welcome to let us know. The City has created a temporary homeless shelter operating today at the Oregon State Fairgrounds in partnership with the State Fair Council, Mid-Willamette Community Action Agency, Church at the Park and other local homeless advocates.  The temporary homeless shelter offers a place for folks to sleep and shower for at least [up to] 100 residents in a socially distanced 30,000 square foot area.  The City also provides financial and staff support for the Salem Warming Network, which houses homeless individuals during the coldest nights of our winter.  We've worked to design overnight parking policies, allowing for an innovative safe vehicle parking program, permitting homeless people to safely park and sleep in their vehicles in designated parking spaces in the Salem area.  We've increased staff support for departments working on the homeless crisis in Salem, such as hiring a navigator at the Salem Housing Authority to work directly with our unsheltered population on the streets and in parks, learning how we can best support their needs and get them back on their feet.  There now are added patrols with the Salem Police Department and code enforcement checking on health and welfare of homeless individuals in public spaces.  We're trying to make sure that these folks are at least checked on regularly.  We are awarding more than $400,000 each year in grants to local non-profits to provide emergency assistance and essential services to Salem residents and families in need.  We're beginning a new permanent supportive housing units [sic] in structured small communities.  You'll hear more about that I think over the next several weeks.  The City is also providing short-term financial assistance with City of Salem utility bills for households experiencing financial hardships.  We're offering tax incentives to developers who will build affordable housing in our area, and we're adapting building standards for single-family property owners to add additional units on their property, such as a basement apartment or converting a single-family home into a duplex.  We are also providing more than 3,000 Salem households with affordable rent through our Salem Housing Authority.  That's 3,000 people who could be potentially homeless in this community.  We're pouring time and resources into understanding our region's growing homeless population, identifying subgroups including youth, families and older adults who need our support.  We're very active in the Mid-Willamette Valley Homeless Alliance, which is vice-chaired by our Council President Chris Hoy.  Ultimately, we're setting goals and adapting policies to meet a series of goals.  We need to reduce the need for sheltering in unsuitable locations that would include our City parks.  [Tents are not shelter.]  Reduce the average time a person is homeless --we're talking to people who've been on the streets for 10 to 15, 20 years.  Reduce the number of homeless individuals in our community -- just help more people get into housing.  Increase adult employment and the percentage of persons who become sheltered.

 

Thus, the robotically-delivered mini-speech ended.  There was no homeless death count for 2020.  No call for advocacy at the national level.  No mention of C19 or C19-related resources or their effect on the City's homeless policy decisions or spending.  No expression of understanding or regret for having led the opposition to a private, non-profit developer's quality low-income housing project.  "'I do not understand the Mayor'" (1 December 2020).  No wrap-up, no feeling, no inspiration, no perspective, no focus and no pause before starting into his next topic, the Police Department's "banner year."  Local coverage was blah blah blah. Whitworth, W.  "State of the City: Mayor Chuck Bennett talks homelessness, disasters and development."  (10 March 2021, Statesman Journal.)  Harrell, S. "Mayor points to city efforts to reduce homelessness in annual address."  (10 March 2021, Salem Reporter.) 

 

By all appearances, it would seem that Mayor Bennett, who continues to claim he has consistently pushed for long-term solutions to the City's homelessness, and is "A Mayor for All of Salem", is just going through the motions.  He continues to behave as though homelessness is neither his or the City's problem, and remains in 2021 just as stubbornly focused on how to get it off his plate and out of his view as he was in 2020.  

Bennett is a poor politician.  When Salem residents say "homelessness" is their No. 1 issue, they have in mind the people under bridges and overhangs, namely the chronically homeless.  This is the same homeless subpop that haunts Bennett's beloved downtown, and the would-be target of his sit-lie and camping bans.  This group also happens to be what the majority of the Oregon legislature has in mind when they are asked to increase funding for homeless assistance programs.  They all are wanting first and foremost to bring about a functional end to chronic homelessness.  What halfway capable politician could fail to grasp such an obvious opportunity to focus his call for "all hands on deck"?  Charles R. Bennett, obviously.  

     

Campaign Website

Council Adopts 2021 Homeless Action Plan

 By Sarah Owens and Michael Livingston

City Council adopted the final 2021-2026 Strategic Plan Update Monday night without discussion, thus approving the 2021 action plan to reduce address homelessness, supposed to be the City's No. 1 priority area.  (The draft plan called for "Reducing Homelessness", but after receiving comment that the proposed activities were hardly designed to achieve that result, the City fell back to its old standard -- addressing homelessness, which tends to mean addressing complaints about people experiencing homelessness.)

Readers will recall that there was a work session on draft Plan back in January.  See "Council's 2021 Homeless Policy Agenda"  (19 January 2021).  There are a couple of new problems with the Final version in the No. 1 action/priority area, "Addressing Homelessness."   

Addressing Homelessness: Priority One for 2021

Year One Activity, item B.  In the draft Plan, this activity read simply, "Continue to pursue a housing-first support model" which could be interpreted as continuing the City's Homeless Rental Assistance Program (HRAP), which would be a good thing.  The new language is nonsensical.  Transitional housing is a housing readiness concept and a term of art that has a specific meaning.  A lot's been written about it, but here is one source.  Neither transitional housing, nor tiny homes, nor tent camps, are consistent with the Housing First (should be capitalized) model.  Persons enrolled in a housing program from the streets may require shelter for a few days or weeks, but it is confusing to refer to this as "transitional housing."  In any event, housing isn't "transitional" if a permanent housing placement isn't realistically available as part of the "transitional" program when stabilization has been achieved. Tent camps are not "housing", tiny homes (unplumbed, unheated wooden tents) are not "housing", nor are they best/evidence-based practices.  The U.S. Department of Housing and Urban Development doesn't even recognize them as shelter.

For the City to make pursuit of tiny home villages and supervised tent camps a one-year priority is a pretty big policy shift that should have been debated versus being sneaked in to the final draft like this.  The City's excuse is that the changes were based on a "community survey" of 247 self-selected participants, begging the question how "strategic" the City's homeless crisis planning truly is.  One suspects that Council and community are conflating pandemic and homeless response policies.  If Council is hell-bent in the direction of tiny home villages and supervised tent camps even after pandemic restrictions are lifted, they should consider Olympia, Washington's experience with mitigation sites, described in the Outsiders podcast produced by KNKX Public Radio and The Seattle Times' Project Homeless.      

 

Objective: Homelessness Prevention.  Neither the objective nor its description makes sense.  First, prevention programs focus on people who are not homeless.  Prevention does nothing to address the City's top priority area, which is homelessness.  There is nothing wrong with describing prevention as "Develop[ing] a long-term, regional strategy to address upstream factors that increase homelessness", but such a strategy simply will not "eliminat[e] homelessness by 2050."  Focusing on prevention is what Salem has done for 40 years, and it has given the City a chronic homeless population rate that's at least twice the national average.  

 

Council should insist that the City's homeless action plan statements be approved by a reputable homeless services professional engaged in implementation of mainstream homeless policy prior to submission.  That this did not happen suggests the City is not serious about "addressing homelessness."  Notably, Mayor Bennett did not mention this plan in his March 10 State of the City address, though he did touch on individual elements as he plowed through a long list of any and all 2020-2021 anti-poverty efforts for which the City could take some amount of credit.  All in all, there is very little about Salem's 2021 homeless action plan that deserves to be called "strategic." 

House Bill Kills Mayor's Sit-Lie Buzz

 By Sarah Owens and Michael Livingston

Things must be looking up, because the Mayor's back to thinking about his Sit-Lie ordinance, the last bulwark against the homeless hordes taking over downtown as it begins to recover from the scourge of the C19 pandemic and the lock-down regulations that cleared the downtown streets almost a year ago, obviating the need to enforce his sidewalk behavior bans for the duration.  See "Sit-Lie Meets COVID 19." 

It's not just the vaccine rollout and sunny weather that's got Mayor Bennett thinking, however, but HB 3115, a bill that would "codify" the U.S. District Court for the District of Oregon's decision in Blake v. City of Grants Pass, which clarified for legal dimwits that the Eighth Amendment prohibiting cruel and unusual punishments applies to civil penalties as well as criminal, the operative words here being "punishments" and "penalties."  See Harbarger, M. "Cities cannot fine homeless people for living outside, U.S. judge rules in Grants Pass case." (11 August 2020, Oregonian/ OregonLive.);  Vanderhart, D. "Oregon could limit bans on homeless camping."  (3 February 2021, OPB.) 

2/19/21 Meeting of the City of Salem Legislative Committee beginning at 00:58

First words out of Bennett's mouth at the last Leg Committee meeting, "Do we know if it [HB 3115] overturns our Sit-Lie?" let City staff and lobbyist know, if they didn't already, he would like to oppose the bill.  (Note, the City doesn't actually have a Sit-Lie ordinance. Ordinance Bill 6-20 passed in March 2020 on the first reading 7-1, with Leung opposed and Ausec absent.  See "Sit-Lie Passes, But it Will Cost"   (9 March 2020).  The City could ban sitting and lying during certain hours only if shelter and hygiene facilities were readily available.  The City made plans to put a big tent and chemical toilets in Marion Square Park.   Ordinance Bill 5-20 was due to become effective immediately on second reading, March 23, 2020, but the Governor called an end to gatherings of more than 50, then 25, then 10, making the tent solution unworkable and effectively killing Ordinance Bill 6-20.  Don't believe it?  Try to find it in the Salem Revised Code.  Look for SRC § 95.715.  It's not there.  The camping ban is there (SRC § 95.720 Camping Ban), but not Sit-Lie.)

Back to Bennett's wanting to oppose HB 3115.  According to the City's analysis, the bill "Provides that local law regulating sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to public must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness."  (Problematic term for the City:  "objectively reasonable.")  The law would allow both facial and as-applied challenges, and attorney fees for the successful plaintiff.  This is the sort of bill that makes city attorneys nervous.

Courtney Knox-Busch told the Committee that staff had two "primary concerns":  one,"our timeline is to get enough shelter space up...by 2023 and that timeline is not going to shift", two, "liability."  But, she said, nervously, the bill "represents a working compromise between the Oregon Law Center, League of Oregon Cities, and the Association of Oregon Counties."

 

It's an attempt on behalf of the Speaker to build a kind of compromise about how we would enforce it [Blake v. City of Grants Pass] moving forward...the City staff are in sort of an awkward position.  This is a working compromise again with the League in the lead and having it be sponsored by Speaker Kotek, there's a lot of challenge here for us.

 

The lobbyist added his bit.  "It's a Speaker's bill, so we need to be careful."  [Translation: the City is asking for a great deal of money this session, so it can't piss off Speaker Kotek.]  "If we do have concerns, we need to get those in, probably to the Senate President's Office" [Translation:  make an end-run around Kotek].

 

Councilor Hoy asked if the City Attorney's Office had done an analysis of how the bill would affect the City's so-called behavior-regulating ordinances.  Assistant city attorney Marc Weinstein offered this incisive legal analysis.

 

"One of the things the City Attorney's Office did very carefully was to try and make it [Sit-Lie] a civil regulation as opposed to a criminal regulation.  The first time we saw a court within the Ninth Circuit really expand this into non-criminal legislation was the Grants Pass case, where the district court judge out of Eugene said that even though it wasn't a criminal, that it was limited to civil PENALTIES, they brought the Eighth Amendment [prohibiting cruel and unusual PUNISHMENTS] analysis to that and said that it still violated the Eighth Amendment.  That wasn't appealed and so that remained an open issue.  This [HB 3115] is going to...statutorily expand those [Eighth Amendment] protections -- the time place and manner restrictions (that had historically applied under criminal regulations) to civil regulations -- so there will need to be some retooling I believe.  This is a conversation that I need to have with the City Attorney [Dan Atchison], but I believe that there will be needing to be at least an analysis and possibly some retooling of our sit-lie ordinance."  [Emphasis added.]

 

In a nutshell, Weinstein believes HB 3115 proposes to provide state law protections against unreasonable financial penalties that the Eighth Amendment does not require, on the grounds that a civil penalty isn't a punishment because it's only money.  The bill is, he and the Mayor believe, a bad bill for the City which would prefer to press the homeless as hard as they legally and practicably can.  They would normally want to oppose the bill, but they have to do so sneakily, so Speaker Kotek doesn't find out and get nasty about all the homeless assistance funds the City's asking for.  The Leg Committee meets next on Friday, March 5, 2021 at 11a by Zoom.  

Bennett and Weinstein should read this Leah Sottile (Bundyville) piece about Albany's experience, written for High Country News.   Sottile, L. "Did James Fuller Plymell III need to die?"  (3 March 2021, Oregonian/OregonLive.)  Well, really, everyone should read it. 

 

3/5/21 Update:  HB 3115 was discussed again during today's meeting of the Leg Committee (beginning at 00:31:15) along with HB 2367, establishing an "Oregon Right to Rest Act" and SB 410, requiring state agencies to develop and implement policies to ensure humane treatment of homeless individuals.  By the end of the meeting, the Committee had agreed it would "watch" HB 3115 and HB 2367, and oppose SB 410.  

 

During the discussion, Bennett again asked Weinstein to tell him what HB 3115 meant for the Liberty Street sidewalk outside Rite Aid   Weinstein told the Committee that the City would not be able to have a City-wide ban on camping (as SRC § 95.720 does) (he said more than that, but that was his only useful advice).  Bennett said the City passed Sit-Lie "because we had such a God-awful mess down there -- if you haven't been down there lately, it's building again", and asked Weinstein, "Can we regulate that by offering alternative sites or not?" What was the "quality of the site" needed?  "How do we get them off our downtown streets?", Bennett wanted to know, but he didn't wait for answers, he just ranted.

 

"Does it [the alternative] have to be comparable or better than they were in?"  "Can we say, hey, we've got a better space for you and force them to move?"  "What we're starting to get down to is a resistant population that doesn't want to move anywhere else, even if it's better."  "One thing I'd really like to know Marc, at some point, take a look at our Sit-Lie ordinance [which is still a bill that's just passed the first reading] and its impact, and whether or not it would work under this."  "What would we have to do to make it work?"  "We've got 30 people living down there on Liberty Street.  We want them outta there.  Can we say, 'Well we opened up the Pavillion at the State Fairgrounds, you're going to have to go there, at least during the period that it's open' and that that would be accepted as a reasonable alternative?  What do we need to look for in order to keep our downtown streets from looking like Liberty Street, which is a dump right now."  

When Councilor Hoy commented, "If it [the Pavilion] weren't full, that might be reasonable, but..." Bennett interrupted saying "The first night it wasn't full.  We could have demanded they move.  I think we would have had a whole bunch of people say, 'Nah, we're going to go over here and live.'  The question is, do we have any coercive power to aim them toward an even better location?"  

 

A halfway decent City attorney at some point during Bennett's rant might have explained to him that homeless people have constitutional rights just like everyone else, and that regardless whether or not HB 3115 passes, the City must adjust its enforcement actions based on the U.S. District Court for the District of Oregon's decision in Blake v. City of Grants Pass.  But, of course Bennett wasn't interested, everyone knew it and indulged his ranting, and certainly no one challenged his coarse and inhumane language or his hijacking the Leg Committee meeting to talk about what "we can do about Liberty Street."  Councilor Andersen just sniggered when Bennett said sarcastically, "It does sound like we can keep our Sit-Lie in place and continue our current policy of chasing them around town until 2023." Ha ha.  "Our current policy of chasing them around town."  Ha ha ha.   

            

But for the fact that HB 3115 is Kotek's bill, the Committee probably would have opposed it just to keep Bennett quiet.  Bennett said he did not care that it was Kotek's bill ("You know what?  So? There's one vote.") or that the League of Oregon Cities was not opposing the bill, or that it was a compromise approach to implementing the federal court's decision in Blake v. City of Grants Pass.