MEMORANDUM
VIA E-MAIL (CHAVE@CI.EDMONDS.WA.US)
DATE:
February 17, 2010
TO:
Planning Board, City of Edmonds
CC:
Rob Chave, Planning Director
FROM:
Bio F. Park, Office of the City Attorney
RE:
Permanent Regulations of Temporary Homeless Encampments
I.
INTRODUCTION
The City Council recently adopted an interim ordinance regulating temporary homeless
encampments. Temporary homeless encampments, commonly referred to as “tent cities”, are
itinerant groups of homeless persons which relocate to a new site every few months. The
encampments are typically comprised of tents and other temporary shelters. The sponsors of
these encampments are often advocacy groups, which attempt to use the controversy generated
by tent cities to raise social awareness about homelessness. Although there is no indication of a
temporary homeless encampment coming to Edmonds, it is good policy to be ready and to have
regulations addressing substantive standards and permitting procedures specific said
encampments. The City Council has directed the Planning Board to consider, review and
recommend the adoption of permanent regulations addressing temporary homeless
encampments.
II.
DISCUSSION1
Religious Sponsorship.
The legal controversy surrounding the siting of tent city encampments stems largely from
the religious nature of the hosting landowner. Municipal zoning authority over churches,
1
This following portion of the discussion is borrowed from a memorandum previously prepared for the City
in December 2009 by J. Zach Lell of Ogden Murphy Wallace, PLLC.
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Planning Board, City of Edmonds
February 17, 2010
Page 2
synagogues and other religiously-dedicated property is constrained by the state and federal
constitutions and by the federal Religious Land Use and Institutionalized Persons Act
(RLUIPA)2, each of which protects freedom of religion by limiting the extent to which cities
may zone or otherwise regulate religious property.
The federal constitutional standard is fairly deferential. As long as the zoning
requirement at issue does not overtly discriminate against religious land use and was not
motivated by any animosity towards religion, churches must comply fully with local regulations
in the same manner as other affected landowners. Washington’s state constitution, however, is
construed as providing greater protection of religious freedom than its federal counterpart.
Although municipalities may generally impose reasonable, nondiscriminatory permitting and
zoning requirements upon religious land uses3, the Washington Supreme Court’s most recent
opinions reaffirm that assisting the homeless is a fully protected exercise of religion and may not
be unreasonably hindered by municipal regulatory power.4
RLUIPA was enacted in order to ensure a higher degree of religious protection from local
zoning requirements than afforded under the United States Constitution. Where applicable, the
statute prevents local governments from enforcing land use regulations in a manner that imposes
a “substantial burden” on religious exercise. Where a substantial burden exists, the use in
question must be allowed unless the government can demonstrate a compelling interest and show
that the challenged regulation is the least restrictive option available.
The sponsors and religious hosts of homeless encampments have often challenged
municipal zoning and permitting requirements for tent cities on these grounds. The threat of
such challenges can be serious; violations of federally protected rights can result in significant
monetary damages and attorneys’ fee awards to a prevailing plaintiff.
The desirability of a clear permitting process.
It is desirable for local jurisdictions to adopt standards and procedures governing the
permit process for homeless encampments. The City’s regulatory authority with regard to
temporary encampments is strongest when its codified regulations establish a clear, efficient and
defensible administrative process to this effect. It is weakest where the applicability of the City’s
code to land uses of this type is uncertain.
A wide range of regulatory options exist for this purpose. Temporary encampments may
be regulated through a temporary use permit process, a conditional use permit approach, or by a
permit type specific to encampments themselves. There is no requirement under state law that
the review procedure must involve a public hearing, although providing for one in the City’s
regulations would afford an opportunity for testimony by affected neighbors of the encampment
site. Regardless of the method ultimately selected, it should contain clear standards for permit
issuance and denial, establish a definitive durational limit on each encampment, allow for the
2
3
4
42 U.S.C. §2000cc-2000cc-5.
Open Door Baptist Church v. Clark County, 140 Wn.2d 143, 995 P.2d 33 (2000).
City of Woodinville v. Northshore United Church of Christ, 166 Wn.2d 633, 211 P.3d 406 (2009).
{BFP764982.DOC;1\00006.900150\ }
Planning Board, City of Edmonds
February 17, 2010
Page 3
imposition of mitigation conditions, and clarify the appropriate appeal process. It should also be
based upon a detailed legislative record demonstrating the City’s legitimate interest in regulating
encampments.
III.
CONCLUSION
Pursuant to the City Council’s direction to the Planning Board to consider, review and
recommend the adoption of permanent regulations addressing temporary homeless
encampments, the Office of the City Attorney has prepared as a starting point for discussions and
consideration of options a draft ordinance based on the interim ordinance adopted by the City
Council. As noted above, the regulations should contain clear provisions governing the review
process (both procedural and substantive) and permissible locations for said encampments.
Enacting a coherent permitting and zoning framework should enhance the defensibility of any
future administrative action in this area.
BFP
Attachment
{BFP764982.DOC;1\00006.900150\ }