Agenda Item Wording:
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Municipal Code Amendment - First Reading of Ordinance 2024-09 amending Chapters 12.32 and 12.52 of the Visalia Municipal Code relating to conduct in City Parks, Recreation Areas and other Public Property.
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Deadline for Action: 8/5/2024
Submitting Department: Administration
Contact Name and Phone Number: Ken Richardson, City Attorney, 559-372-2400
Department Recommendation:
It is recommended that the City Council approve the First Reading of Ordinance 2024-09 amending Chapters 12.32 and 12.52 of the Visalia Municipal Code relating to conduct in City Parks, Recreation Areas and other Public Property.
Background Discussion:
The ordinance presented for Council consideration will bring full circle a comprehensive update to the Visalia Municipal Code provisions regulating activities in the City’s parks and recreation areas that started back in 2017. At that time, Chapter 12.32 regulating the activities in the City’s parks and recreation areas did not reflect current practices, most notably it did not include provisions related to the reservation of certain park spaces and facilities. Nor did Chapter 12.32 address the prohibition of an increasing number of different activities that were incompatible with the traditional park and recreation activities for which these spaces were created. While this latter category was largely related encampments of unhoused persons in City parks and along trails that were occurring at that time, it also included things such as the use of inflatable bounce houses in the parks. In response, staff formed a working committee that included select members of the Parks and Recreation Commission and the Waterways and Trails Committee to develop proposals, and in some cases specific language, for various code revisions to address those challenges and otherwise bring Chapter 12.32 up to date.
The committee’s revisions and proposals culminated after several months of study and discussion. Their evaluation included review of public contacts documented in the City’s own Park Ranger Reports as well as park ordinances from several other agencies. In July 2018, the committee’s proposals and revisions were transmitted to various City Departments and the City Attorney’s office for review and further input. In the course of legal review and the development of the ordinances to implement the committee’s proposals, the 9th Circuit Court of Appeals decision in the case of Martin v. City of Boise (the “Boise case”) was issued in September, 2018, necessitating additional research, review and analysis to understand its implications on the proposed code revisions being developed to address the impacts of unhoused person activities on park uses and resources.
The core holding in the Boise case was that public agencies could not criminalize the act of an unhoused person sitting, lying or sleeping on public property so long as there is no low barrier shelter available. The court devoted considerable discussion as to why it believed that the ”condition of being homeless” should not be criminalized, but did concede generally that public agencies did not have to allow homeless persons to sit, lie or sleep in all public places at all times, and that certain time, place and manner restrictions could be legally defensible.
In consideration of maximizing the limited amount of control afforded the City under the Boise case, revisions to the draft ordinances for the comprehensive update were modified to account for the Boise case as noted in italics below, and moved forward for City Council consideration and approval in August, 2019. The comprehensive update as presented and ultimately approved included all of the following:
• A comprehensive and detailed definition section was developed to add depth and detail to the description of activities to be regulated and/or prohibited.
• The permitting process for the exclusive reservation and use of certain park areas and facilities was updated to reflect current practices codified.
• Regulations pertaining to closure of parks and designated hours were updated, including limited exceptions for unhoused persons to comply with the Boise case.
• Provisions were added allowing for the temporary closure of any park or recreation facility, or designated part thereof, by the City Manager or designee, for purposes of construction and maintenance activities, or when it is determined that a hazardous condition or threat to public safety exists.
• The existing provisions on the prohibition on alcoholic beverage use in parks was updated to comport with current practices and policies.
• New detailed and comprehensive provisions prohibiting camping activities in parks and along trails, as well as prohibitions on the use of tents or temporary enclosed structures, were added to specifically prevent the formation of encampments, while still also including a narrowly tailored exception for unhoused persons to comply with the Boise case.
• New provisions expressly prohibiting the storage of personal belongings in parks were added, with detailed regulations relating to notice of impoundment, ability to reclaim impounded personal belongings and City’s storage of same, and ultimate disposal where items have been abandoned, including a limited exceptions for unhoused persons to comply with the Boise case.
• New provisions prohibiting fires in parks, use of fireworks, possession of firearms or weapons, prohibitions on certain commercial activities, littering and dumping, swimming, bathing, washing and fishing in water features, nudity, smoking were added.
• New provisions prohibiting bounce houses and the like without a permit were added.
• Existing prohibitions and regulations related to operation of vehicles in parks, vandalism of park amenities, animals in parks, golfing, use of hazardous games and devices, glass containers, amplified music, use of generators, and use of sports courts were updated and strengthened.
• Existing provisions related to removal and suspension of a person from the use of park and recreation facilities for disorderly conducted or repeated violations of the municipal code have been updated and strengthened.
In December, 2019, the City Council considered and approved corresponding revisions to Chapter 12.52 which included many of the same detailed definitions included in Chapter 12.32, and ensured that camping activities were prohibited in all other public places outside of the parks, with a narrowly tailored exception to allow camping at night in certain areas along trails in order to comply with the Boise case holding.
In short, the comprehensive updates to the Visalia Municipal Code described above were crafted to walk right up against the line drawn by the Boise case, and with an eye towards providing staff with the most effective tools possible without exposing the City to costly legal challenges. By utilizing narrowly tailored exceptions to very robust prohibitions, it was intended that only nominal modification of Chapters 12.32 and 12.52 would be needed for full enforcement as envisioned in 2018 should the Boise case holding one day be overturned.
That day has now come. The United States Supreme Court reviewed the Ninth Circuit’s holding in the Boise case during its most recent session in the case of City of Grants Pass v. Johnson (the “Grants Pass case”). In its decision issued on June 28, 2024, the United States Supreme Court overturned the Ninth Circuit’s holding that issuing criminal citations to unhoused persons camping in public places was a violation of their 8th Amendment right against cruel and unusual punishment. In doing so, it cleared the way for public agencies to once again enforce prohibitions on camping on public property.
It is worth noting that Governor Newsome signed on to an amicus brief in the Grants Pass case supporting the city’s argument that the Boise case holding should be overturned. In response to the recent decision, he issued Executive Order N-1-24 on July 25, 2024, directing state agencies to begin the process of clearing unhoused encampments from state property, and directing the California Interagency Council on Homelessness to develop guidance and provide technical assistance for local governments to follow in implementing their local homelessness programs.
As noted above, the ordinance presented for Council consideration brings the City full circle by eliminating the exceptions in Chapter 12.32 and Chapter 12.52 for camping, use of tents and enclosed structures, and storage or personal property in parks and on trails that were noted above. By doing so, under those Chapters, camping and the use of tents, as well as the storage of personal property, on any and all City property at any time will be prohibited and subject to citation under the Visalia Municipal Code. When the parks and trails close in the evening, they will be closed to all, no exceptions.
It is important to note that the Grants Pass case is not necessarily about providing public agencies with new tools so much as it is about returning tools that were taken away in 2018. Reinstating the ability of City personnel to issue administrative citations, as well as infraction and misdemeanor citations, while important, is but one of many tools to address the exceedingly complex issues and challenges facing City personnel in their interactions with the unhoused population in the City of Visalia. There remain a number of impediments within the various processes and stages of the local criminal justice system that can and do limit the effectiveness of this particular tool, and expectations should be tempered accordingly.
In addition to the changes discussed above, staff is taking this opportunity to propose minor amendments to Section 12.32.045 and 12.32.070 related to the manner and location of signage for park hours and warning signage regarding prohibition on alcohol use in the parks. Staff has found the present language requiring signage every 300 feet to be too restrictive insofar as it can result in an over proliferation of signage beyond what is needed to provide the public with adequate notice. The proposed revisions provide staff with the discretion to locate such signage in a common-sense manner that preserves the aesthetic features of the parks and trails while also providing legally defensible notice to the public.
This ordinance is also proposed to be processed as an “urgency” ordinance, which if approved by a 4/5ths majority of Council would take effect immediately upon adoption, rather than the 30 day period required by Article VI, Section 7 of the Charter of the City of Visalia and Government Code Section 36937. Consistent with the Charter and Government Code subsection 36937(b), as well as Executive Order No. N-1-24, the City Council can and should find that due to the amount of dangerous and unlawful activity presently occurring in parks and public spaces related to camping activities occurring in those spaces, sufficient urgency exists such that this ordinance should take effect immediately upon adoption in order to ensure the immediate preservation of public peace, health and safety.
Fiscal Impact:
N/A
Prior Council Action: Approve Ordinance 2019-07 amending Chapter 12.32 of the Visalia Municipal Code relating to City Parks and Recreation Areas on August 5, 2019. Approve Ordinance 2019-17 to update Visalia Municipal Code Chapter 12.52, Sections 12.52.010-12.52.050 which regulates conduct on public property on December 3, 2019.
Other: N/A
Alternatives: The City Council may, in lieu of the recommended motion specified above, consider any of the following alternatives: 1. Refer all or parts of the ordinance back to staff and City Attorney for further review; or, 2. Direct staff and City Attorney not to process any amendments; or, 3. Continue the matter to a future City Council meeting for additional information.
Recommended Motion (and Alternative Motions if expected):
recommendation
I move to approve the First Reading of Ordinance 2024-09.
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Environmental Assessment Status: N/A
CEQA Review: N/A
Attachments: Ordinance 2024-09, Existing Text Chapter 12.32 and Chapter 12.52, Newsome Executive Order N-1-24