The City of Bend is considering creating codes to regulate unhoused campsites in public right of ways and City property. On June 15 the Bend City Council asked the City Manager to appoint a workgroup comprised of service providers, stakeholders and people who have experienced houselessness to perform community outreach and gather input from community members.
Code created to regulate camping must comply with Martin v. Boise, a 2018 decision by the Ninth Circuit Court of Appeals that barred cities from enforcing anti-camping ordinances if there isn't a place for an unhoused person to go. The Oregon legislature codified that ruling into state law with House Bill 3115, which will go into effect in July 2023, but there's still enough vagueness in the ruling that there's no concrete idea of what restrictions will hold up.
"I think the legislature's perspective was, 'We're going to create this new law, we're going to give the cities in Oregon some time to figure out what they're doing, review their ordinances, get things tuned up, cleaned up, fixed so that they can be in compliance with these new standards," said Bend Assistant City Attorney Ian Leitheiser. "We're in that period where there's still a lot of questions about what is going to work, what is going to be legally valid and what's not, what kind of time, place and manner restrictions are going to be determined to be objectively reasonable but we're not quite there yet where we have all those answers."
Time, place and manner are the areas where restrictions can be put in place. A time restriction would limit when someone could camp on public property, such as a ban on camping during the day. Place regulations can limit camping to certain identified streets, or can broadly say where they can't exist — such as near established shelters, schools or ecologically sensitive areas. Manner restrictions could limit the number of campers in an area, cap the amount of space an individual campsite can take up, or ban behaviors like camps having open fires.
“If we’re going to be assessing people, and their life circumstances, and where they’re sleeping and what’s available, it’s essentially case management in a lot of ways, and that requires lots of training and lots of continuing education.”—Mo Mitchell
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The City already has a narrow policy to move unhoused camps in rights of way, but only if it meets certain benchmarks around fire hazards, accumulation of trash, calls for police service and impending roadways to a degree deemed unsafe by the City Manager. Since the policy's approval in June 2021, it's been used to sweep camps on Emmerson Avenue and Second Street. Martin v Boise restricts a city's ability to move campsites, but it doesn't require excess shelter beds like it's often understood.
"The only way to practically apply that rule is to look at an individual basis: does this person have an alternative place to sleep, and if they don't, the court says you can't punish them for sleeping in public, which is an unavoidable consequence of being human if you have nowhere else to be," said Bend Associate City Attorney Elizabeth Oshel.
An individual assessment of someone's options for entering a shelter or finding alternative housing is a lot of work. Deschutes County's mobile crisis assessment team would be the point of contact for any individual assessment.
"If we're going to be assessing people, and their life circumstances, and where they're sleeping and what's available, it's essentially case management in a lot of ways, and that requires lots of training and lots of continuing education," said Bend City Councilor Mo Mitchell.
Unsanctioned campsites continue to be a difficult issue in Bend. When the City amended shelter codes last month it drew more than 100 people to the City Council's regular meeting. Councilors said they're urgently addressing the issue, but some added that it's likely going to get worse before it gets better. The United States Forest Service cleared campsites off China Hat Road, which will likely lead to more people camping in the City, adding to the 785 people reported to be unhoused in Bend during 2022's Point in Time Count.
"I'm very disappointed that our partners in regional governments have notified us of actions that they're taking regarding people experiencing homelessness, and I'm talking specifically about the Forest Service, without coming up with a solution," said Bend City Councilor Anthony Broadman. "I agree with you this situation is going to be less fair for unhoused people, and less fair for the housed community as a result of people being moved off China Hat without a plan of where to go."
