Knowing the Waters- September 2020 column by WPPA Counsel Frank Chmelik
This month’s column discusses homelessness, camping on port property, in port parks, car camping on port streets, liveaboard boaters and the COVID-19 pandemic. The common thread here is people living on port district property without permission and what, if anything, can and/or should be done about it.
We first consider port district involvement in providing shelter for homeless people. There is general agreement that homelessness is a societal problem that must be addressed, and from that common perspective views concerning causes and solutions seem to diverge rather dramatically. Some port districts have indicated a willingness to become involved in this issue and perhaps create or host a shelter for the homeless. Other port districts have determined that this is an issue best left to county and city health departments that possess the statutory authority and responsibility. The caution here is that a port district, as a limited purpose municipal government, must have statutory authority to act. Chapter 53.08, the port powers chapter of the Revised Code of Washington, is pretty skinny on addressing social issues like homelessness, but a port commission may determine that action will promote economic development or protect tourism in the port district. A better approach may be to partner, through an interlocal agreement or lease, with a county or city that has the direct statutory authority to address the issue. If a port is considering involvement the best practice would be to hold a public hearing and carefully outline port district statutory rationale for port district involvement.
Now we turn to uninvited campers on port district property that is generally open to the public--think of port parks and sidewalks as opposed to port shipping terminals. The former are public spaces and the later are akin to private property. In these public spaces, local police and sheriffs may be reluctant to act citing the case of Martin v. City of Boise, 902 F.3d 1031 (2019). In that case the United States Ninth Circuit Court of Appeals (the 9th Circuit includes Washington) held that a citation for sleeping on public property could be a violation of the 8th Amendment’s prohibition on cruel and unusual punishment when those people have no home or other shelter to go to. Therefore, while port districts may prohibit overnight camping and may desire local law enforcement to take action, it may depend on the availability of an alternative location to sleep.
The analysis gets even more complex with unauthorized liveaboard boaters in port marinas and car campers on port district owned streets. Not only should port districts consider the Martin v. Boise case, but add to that the City of Seattle v. Gregory Long 13 Wash.App.2d 709 (2020) decided by Division I of the Washington State Court of Appeals. This case determined that the “Homestead Act”, which provides protection for the first $125,000 of the value of one’s home from a forced sale, applied to a truck that Gregory Long called home. The context of the case was an attempt by the City of Seattle which threaten to sell Mr. Long’s “home” unless Mr. Long paid the towing and impound charges. Importantly, the Court noted that the City could ticket, tow, and impound Mr. Long’s truck but that the City could not threaten to sell the truck for failure to pay the tow and impoundment charges. One can see the application to a boat in a marina where the owner fails to pay for moorage and claims the boat is a “home”. Applying City of Seattle v. Long one would assume that a port could impound the boat and/or require it to leave the marina. But the ability to auction the boat under RCW 53.08,320 is in doubt for a claimed “home”.
Then along comes COVID-19 and Governor Inslee’s Proclamation 20-19.3 and the Centers for Disease Control Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19. Both bar residential evictions for failure to pay rent. The Governor’s Proclamation 20-19.3 expires October 15th (look forward to an extension) and the CDC order expires December 31, 2020. There are limited exceptions for dangers to public health caused by the renter. Some ports have argued that a particular boat was not used as a home and therefore a sale under RCW 53.08.320 for failure to pay moorage charges is possible. Legal advise and careful analysis should be undertaken prior to seizing or auctioning any boat claimed to be a “home”.
Where does this leave port districts at least until the end of 2020? Well, I think the following best practices ought to be considered.
1. If a port wants to get involved in providing a homeless shelter consider an interlocal or lease with the county or a city. Always develop a clear record of the statutory basis for the action.
2. If a port district wants to limit camping in its parks, consider physical barriers (fence and gates) around the parks that are closed at night to deter camping. Do not count on local law enforcement support unless there is alternative shelter in the port district.
3. Clearly post signage on port streets limiting evening parking or overnight parking. Discuss enforcement options with local law enforcement.
4. For marinas, keep a close eye on unauthorized liveaboards and keep a close eye on past due moorage. Analyze each situation carefully to determine if eviction is possible and/or seizing a boat is advisable.
5. If there are folks who are protected by the Governor’s Proclamation or the CDC order begin an internal discussion now on the appropriate course of action once these restrictions are lifted – likely the Spring of 2021.
As always, please contact your port counsel with any questions regarding this topic. If you have a particular question or topic for a Knowing the Waters , please e-mail me at fchmelik@chmelik.com.