Durango city councilors approved a draft ordinance Tuesday that would allow overnight sheltering on city property only with approval by the city manager or other designated official.
The proposed rules, which must receive at least one more approval before they become law, prohibit camping and sheltering on all city-owned property unless the city manager finds there is no adequate shelter. The proposed code does not specify the definition of adequate shelter.
The decision to allow people to camp would be made in “consultation with staff, city advisory boards and other interested parties,” the proposed rules state.
The proposed rules do not specify a location where sheltering may be allowed and instead identify city-owned property where staying overnight is illegal.
Campers would be allowed to set up their shelter an hour before sunset and would have an hour after sunrise to pack up their gear.
City councilors unanimously approved the proposed rules without comment.
The American Civil Liberties Union and National Law Center on Homelessness and Poverty have criticized the rules as violating constitutional and federal law, putting the city “at risk of legal liability.”
The ACLU and National Law Center said in a letter to the city after the rules were proposed in November that the policy, if adopted, would violate the Eighth Amendment, which guarantees the right against cruel and unusual punishment; the 14th Amendment, which, in part, guarantees the right to due process; and the Americans with Disabilities Act, which prohibits discrimination based on disability.
The decision to revisit the rules came after the city put a moratorium on its camping ban in the wake of a 9th Judicial Circuit Court decision that found it unconstitutional to make it illegal for people to sleep on public property when they have nowhere else to go.
“The current proposal misses the opportunity to pursue real policy solutions to homelessness and instead adopts a punitive and rigid policy approach cut from the same cloth as those that landed Durango in its current predicament,” lawyers for the ACLU and National Law Center wrote in a letter to city councilors.
The ACLU and National Law Center argue that the city, with these proposed rules, is not providing a permanent path to housing for individuals and, in permitting the “act” of sleeping only through “written consent,” would create a rule that could work as a proxy for criminalizing homelessness as a status.
“Rather than crafting policies that approach homelessness with compassion, ingenuity and resources, the new proposal sets up homeless residents for continued unnecessary involvement with the criminal justice system simply because they lack permanent housing,” lawyers for the ACLU and National Law Center wrote.
