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.