Loading...
Ordinance No. 11875 ORDINANCE NO. 1187 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CYPRESS, CALIFORNIA, RETITLING AND AMENDING, IN ITS ENTIRETY, SECTION 17-4 OF CHAPTER 17 OF THE CYPRESS MUNICIPAL CODE RELATING TO THE PROHIBITION OF CAMPING AND THE STORAGE OF PERSONAL PROPERTY IN PUBLIC AREAS WHEREAS, the public areas within the City should be accessible and available to residents and the public at large for their intended uses; WHEREAS, the unauthorized use of public areas for camping and the storage of personal property interferes with the rights of other members of the public to use public areas for their intended purposes and can create a public health or safety hazard that adversely affects residential and commercial areas; WHEREAS, the purpose of this Ordinance is to maintain public areas in clean, sanitary and accessible condition to prevent the misappropriation of public areas for personal use, and to promote the public health and safety by ensuring that public areas remain readily accessible for their intended uses; WHEREAS, this Ordinance is intended to comply with the holding in Martin v. City of Boise (9th Cir. 2018) 902 F.3d 1031, but only to the extent that the case of Martin v. City of Boise (9th Cir. 2018) 902 F.3d 1031 is applicable law within the jurisdiction of the Ninth Circuit; WHEREAS, the City entered into a settlement agreement for the action filed in the United State District Court, Central District of California, Southern Division entitled "Orange County Catholic Worker, et al., v. Orange County, et al." with Case No. Case No. 8:18-cv-00155 DOC (JDE) ("Settlement Agreement"); WHEREAS, this Ordinance is intended to be consistent with the Settlement Agreement, but only to the extent that the Settlement Agreement is in effect and applicable to the City; THE CITY COUNCIL OF THE CITY OF CYPRESS, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Recitals set forth above are incorporated herein by this reference. Section 2. Section 17-4 of Chapter 17 of the Cypress Municipal Code is hereby retitled and amended in its entirety to read as follows: "Section 17-4 - Camping and Storage of Personal Property (a) Purpose and Intent. (1) Public areas within the City should be accessible and available to residents and the public at large for their intended uses. The unauthorized use of public areas for camping and the storage of personal property interferes with the rights of other members of the public to use public areas for their intended purposes and can create a public health or safety hazard. The purpose of this section is to maintain public areas in clean, sanitary and accessible condition to prevent the misappropriation of public areas for personal use, and to promote the public health and safety by ensuring that public areas remain readily accessible for their intended uses. (2) This section shall be interpreted in a manner that is consistent with applicable state and federal law. (3) This section shall be interpreted in a manner that is consistent with the Settlement Agreement to the extent that it is effective. 6 (b) Definitions. The following terms used in this section shall have the meanings indicated below: "Abandoned personal property" means personal property that the owner surrenders, relinquishes, or disclaims. Indicia of abandoned personal property shall include, but not be limited to, personal property that its owner has indicated he or she does not want. "Camp" or "camping" means to pitch or occupy camp facilities and/or to use camp paraphernalia for living accommodation or habitation purposes. Pitching or occupying camp facilities and/or using camp paraphernalia for living accommodation or habitation purposes includes, but is not limited to, sitting, lying, or sleeping within such camp facilities and/or upon such camp paraphernalia for living accommodation or habitation purposes. "Camp facilities" include, but are not limited to, tents, huts, or temporary shelters. "Camp paraphernalia" includes, but is not limited to, tarpaulins, cots, beds, sleeping bags, hammocks, blankets, or non -City designated cooking facilities and similar equipment. "Chief of police" or "police chief' means the Cypress Chief of Police or designee. "City" means the City of Cypress, a charter city in the State of California, in its present incorporated form or in any later reorganized, consolidated, enlarged or re -incorporated form. "City manager" means the Cypress City Manager or designee. "Highway" means a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. "Parkway" means the area of the street between the back of the curb and the sidewalk that typically is planted and landscaped. "Personal property" means any and all tangible property, and includes, but is not limited to, goods, materials, merchandise, tents, tarpaulins, bedding, sleeping bags, hammocks, personal items such as luggage, backpacks, clothing, and household items. "Public area" means all property that is owned, managed or maintained by the City, and shall include, but not be limited to any public street, building, grounds, lot, parcel, park, plaza or parking lot dedicated to the authorized use and enjoyment of the public, and any other public property owned, maintained or controlled by another government agency within the City where the City is authorized to can enforce its police powers as described herein. "Public street" means and includes but is not limited to any City right-of-way, street, road, highway, alley, sidewalk, parkway, bridge, culvert, drain, and all other facilities or areas necessary for the construction, improvement, and maintenance of streets and roads. "Roadway" means that portion of a highway improved, designed or ordinarily used for vehicular travel. "Settlement Agreement" shall mean the settlement agreement in that certain action filed in the United State District Court, Central District of California, Southern Division entitled "Orange County Catholic Worker, et al., v. Orange County, et al." with Case No. Case No. 8:18-cv-00155 DOC 7 (JDE) entered into between the plaintiffs in such case and the City. "Sidewalk" means that portion of the public right-of-way provided for the primary use of pedestrians along or adjacent to a street. "Store" or "storing" or "storage" means to put aside or accumulate for use when needed, to put for safekeeping, and/or to place or leave in a location; which does not include any personal property that clearly has been abandoned or discarded and which clearly has no value. "Tent" means any tarp, cover, structure or shelter, made of any material that is not open on all sides and which hinders an unobstructed view behind or into the area surrounded by the tarp, cover, structure or shelter. "Unclaimed personal property" means personal property that has been turned in to the chief of police pursuant to Section 17-4(d), and that has not been claimed within a period of 90 days by its true owner or finder pursuant to Section 17-4(d). (c) Unlawful camping. It shall be unlawful for any person to camp, erect or occupy camp facilities or use camp paraphernalia in any public area within the City, except as otherwise provided in Section 17-4(e), as may be permitted under Section 17-72(c) or Section 17-72(e), or as mandated by applicable law. (d) Storage of personal property in public areas. (1) Prohibition. It shall be unlawful for any person to store personal property, including camp facilities and camp paraphernalia, in any public area within the City, except as otherwise provided in Section 17-4(e), as may be permitted under Section 17-72(c) or Section 17-72(e), or as mandated by applicable law. (2) Chief of Police to Receive Stored/Unattended Personal Property. Except as provided in Section 17-4(d)(8), the chief of police shall make provisions for receiving and safekeeping of personal property found unattended on any public area and coming into their possession by an employee of the city in the course of employment pursuant to Section 17- 4(d)(3). The police department shall notify the owner, if their identity is reasonably ascertainable, that it possesses the personal property and where it may be claimed. The police department may require the owner to pay a reasonable charge to defray the costs of storage and care of the personal property. (3) Notice and Removal. (i) In the event that personal property is found in the course of employment by an employee of the city on any public area without authorization from the City (examples of "authorized employees" include, but are not limited to, City police officers, City code enforcement, employees or contractors of City Public Works Department, and other City employees properly trained to carry out this section), such employee shall leave notice with the owner of the personal property or in a prominent place and which notice shall contain all of the following information: (a) The personal property needs to be relocated. (b) The timeframe that the property owner has to relocate the personal property. Such timeframe shall not be Tess than 24 hours unless there is an immediate threat to the public health, safety, or welfare. Further, if the personal property obstructs and actually interferes with a public area or 8 the intended use of the public area, then this timeframe may be shorter than 24 hours, provided that, if the property owner is present, they are first advised to cease the interference and/or to move the personal property causing the obstruction and they decline to do so. (c) A statement that, if the personal property is not removed within the timeframe, then the City will remove and store the personal property consistent with this section. This statement shall also provide the location that the personal property will be stored. (d) If applicable, the nature and purpose of the clean-up; (e) The date, time, and locations of the scheduled clean-up and/or removal of the personal property (f) A citation to the applicable section of the Cypress Municipal Code or any other applicable law. (g) A statement of how the personal property may be reclaimed. (h) A statement that, if personal property is removed pursuant to this section, then such personal property may be subject to disposal by the City pursuant to this section after 90 days from the date of removal. (i) If applicable, a list of local facilities and shelters where homeless persons may relocate. (j) A phone number that the person may call for more information. (k) Any other additional information as determined by the chief of police. (ii) After the timeframe in the notice provided pursuant to Section 17-4(d)(3)(i), the personal property in the public area may be removed, inventoried, stored, and disposed of by the City pursuant to this section. To the extent possible, the inventory list shall be provided to the property owner(s). For any personal property removed, a notice shall be provided in a prominent place in the removal area advising where the personal property is being kept and when it may be claimed by its rightful owner; containing the information pursuant to Sections 17-4(d)(3)(i)(f) through 17- 4(d)(3)(i)(j); and containing any other additional information as determined by the chief of police. This notice shall include the date that the removed personal property will be disposed by the City pursuant to this section. (iii) The city may determine what, if any, areas of the city suffer from blight due to storage of personal property in any public area, and erect signs in those areas containing the applicable information specified in Sections 17-4(d)(3)(i) and 17-4(d)(3)(ii) so as to provide additional notice. (4) Holding and disposal of stored personal property. Except as provided in Section 17-4(d)(8), found personal property shall be deposited and inventoried in a safe place for a period of at least 90 days and found money shall be deposited with the director of finance for a period of not less than 90 days, unless sooner claimed by the true owner. In the event the property or money is not claimed within 90 days, it shall be deemed to be 9 unclaimed personal property and subject to disposal as provided in this section. Any personal property coming into the possession of the chief of police may be immediately disposed without notice, in a manner that the chief of police determines to be in the public interest, when such personal property is trash, perishable, contraband pursuant to state or federal law, or constitutes an immediate threat to the public health, safety, or welfare. Additionally, the City shall not be obligated to store personal property in excess of the City's current overall storage capacity, which is estimated at 2,400 cubic square feet. (5) True owner may claim personal property. During the time that found personal property is held by the city, it may be delivered or paid to the true owner as follows: (i) The personal property shall be delivered upon proof of ownership satisfactory to the chief of police after 10 days' notice by mail to others who have asserted ownership, at any address given by such persons, provided that the City may charge such true owner the reasonable costs of delivery, or, upon written request from the true owner, the chief of police may authorize such true owner to pick up such personal property during regular business hours from the location at which it is stored. If the personal property consists of money, it shall be paid to the true owner upon order from the chief of police to the director of finance. (ii) If ownership cannot be determined to the satisfaction of the chief of police, the police department may refuse to deliver the personal property or order the payment of such money to anyone until ordered to do so by a court of competent jurisdiction. (6) Unclaimed personal property. (i) If the reported value of the personal property is $250.00 or more (as determined by the chief of police), and the true owner does not appear and prove their ownership of the personal property within 90 days, the chief of police shall cause notice of the personal property to be posted or published pursuant to the City Charter and, if the property owner's identity known, mailed notice to the last known address of the property owner . If, after 10 days following the posting or publication and, if applicable, mailing of the notice, no owner appears and proves his or her ownership of the personal property, then the personal property shall be disposed pursuant to Sections 17-4(d)(7). (ii) In the event the reported value of the personal property is less than $250.00 and no owner appears to prove their ownership of the personal property within 90 days, then the personal property shall be disposed pursuant to Sections 17-4(d)(7). (7) Unclaimed personal property to be used by city or sold at auction -Notice. (i) Upon expiration of the 90 -day period and the applicable notice period, any personal property received by the city and not delivered to the true owner or finder may be appropriated to the use of the City of Cypress upon order of the city manager on their finding that the personal property is needed for a public use, and any personal property not appropriated to city use may be sold at public auction to the highest bidder. (ii) All unclaimed money received by the chief of police, and not delivered to the true owner or the finder during the 90 -day period and applicable notice period, shall thereafter be deposited in 10 the general fund. (iii) Notice of the sale at auction of unclaimed personal property shall be given by the city clerk at the direction of the city manager at least 10 days before the time fixed therefore posted or published pursuant to the City Charter and, if the property owner's identity known, mailed notice to the last known address of the property owner. (iv) Conduct of auction. An auction for the sale of unclaimed personal property shall be conducted by the city manager or designee. (v) Proceeds to be deposited in general fund. After any auction for unclaimed personal property is completed, the proceeds of the auction shall be deposited in the general fund. (vi) Unsalable and unusable personal property. Any personal property advertised and offered for sale but not sold and not suitable for appropriation to city use shall be deemed to be of no value and shall be disposed of in such manner as the city manager deems appropriate. (vii) The city manager may establish administrative policies and procedures to carry out this Section 17-4(d)(7) consistent with this section and state and federal law (8) Trash, dangerous, or perishable personal property. Any personal property coming into the possession of the chief of police may be immediately disposed without notice, in a manner that the chief of police determines to be in the public interest, when such personal property is trash, perishable, contraband pursuant to state or federal law, or constitutes an immediate threat to the public health, safety, or welfare. (9) Applicability. The provisions of this Section 17-4(d) shall not apply to the following: (i) Real or personal property or money subject to confiscation pursuant to state or federal law. (ii) Personal property that constitutes evidence in an ongoing criminal investigation and/or civil proceeding pursuant to state or federal law. (iii) Personal property that has been abandoned by its owner. Abandoned personal property shall be disposed of forthwith. (iv) Personal property received by the chief of police or police department pursuant to Article II of Chapter 20 of this Code. (e) Exceptions. (1) This section shall not apply to any person camping, occupying camp facilities or using camp paraphernalia, or to any person storing personal property, including camp facilities and camp paraphernalia, in any public area designated by the City for such purposes. The City Council may, by resolution or ordinance, establish specified public areas for such purposes. (2) Absent exigent circumstances relating to immediate threats to the public health, safety, or welfare, the provisions of this section will not be enforced against homeless persons sitting, lying, or sleeping on public 11 property when no alternative shelter is available in accordance with the holding in Martin v. City of Boise (9th Cir. 2018) 902 F.3d 1031, and only during the timeframe that the case of Martin v. City of Boise (9th Cir. 2018) 902 F.3d 1031 is applicable law within the jurisdiction of the Ninth Circuit, unless the following procedures are followed: (i) Definitions. For the purpose of this Section 17-4(e)(2), the following definitions apply: (a) "O&E Personnel" shall include, but not be limited to, any organization that the City has contracted with for homeless outreach and engagement services (e.g., Orange County Health Care Agency, City Net, Mercy House). Outreach and Engagement Personnel may include City employees, homeless liaisons and police officers. (b) "Navigation Center" or "Navigations Centers" shall mean (1) the feasible, low barrier homeless shelters within the boundaries of the North SPA, created pursuant to the Settlement Agreement and (2) shelter facilities that are open and operating within the North SPA prior to August 6, 2019. (c) "North SPA" shall mean the area designated by the County of Orange as the "North Service Planning Area," as it may be amended from time to time by the County of Orange, which includes the geographic limits of the Cities of Anaheim, Brea, Buena Park, Cypress, Fullerton, La Habra, La Palma, Los Alamitos, Orange, Placentia, Stanton, Villa Park, and Yorba Linda, and any successor thereof, provided that nothing herein shall obligate the City to provide services after the expiration of the same. (ii) Procedures. Prior to any citation or arrest for unlawfully camping, occupying camp facilities or using camp paraphernalia, storing personal property in public areas, a person shall be referred to O&E Personnel to determine appropriate shelter placement for the person in question as follows: (a) The City shall work with O&E Personnel to offer an appropriate immediately available Navigation Center placement that is located within the North SPA. If no Navigation Center is available in the North SPA, but an alternative appropriate and immediately available placement within the County of Orange is identified by O&E Personnel, then the City may offer the homeless person placement at that facility with the consent of such person (such placements outside of the North SPA include, but are not limited to, countywide Behavioral Health and Healthcare placements). This offer of placement shall be considered available alternative shelter for the purposes of this Section 17-4(e)(2) and enforcement so long as the placement does not unreasonably impede the homeless person's ability to access medical appointments and/or outpatient programs in which he or she may be enrolled and work and other support systems in or near the North SPA. (b) If the homeless person accepts the offered placement outside of the North SPA, then O&E Personnel will provide for transportation to the placement outside of the North SPA and assist the individual in finding necessary transportation to and from scheduled appointment or work, including, but not limited to, bus passes, when such 12 transportation is necessitated by placement outside of the North SPA. (c) If the homeless person declines the offered placement, then this exception under Section 17-4(e)(2) shall not apply and the City may proceed with enforcement of this section after giving such person a warning and an opportunity to immediately leave the location where unauthorized camping is occurring, or an opportunity to voluntarily decide to relocate outside of the jurisdiction of the City, before engaging in citation and/or arrest. If such person relocates upon warning, he or she will not be cited or arrested for violating this section. If the homeless person fails to relocate as directed, then he or she may be issued a citation or, subject to the dispute resolution process under Section 17-4(e)(2)(iii), placed under custodial arrest for such violations. The City shall advise the homeless person of the availability of Section 17-4(e)(2)(iii) and will provide such person the contact information for the Plaintiff's attorneys in that certain action filed in the United State District Court, Central District of California, Southern Division entitled "Orange County Catholic Worker, et al., v. Orange County, et al." with Case No. Case No. 8:18-cv-00155 DOC (JDE). (d) If any alleged violation arises from the homeless person's presence in a City park outside of the established operational hours of the park and there is no appropriate and immediately available shelter placement for such person, then such person must be advised of a location that he or she may move to and avoid citation or arrest for a violation of this section until an appropriate and immediately available bed is made available to such person. (e) These procedures under Section 17-4(e)(2)(ii) are only mandatory during the timeframe that the case of Martin v. City of Boise (9th Cir. 2018) 902 F.3d 1031 is applicable law within the jurisdiction of the Ninth Circuit. (iii) Alternative Dispute Resolution. Except for violations of law relating to conduct unrelated to a homeless person's homeless status (e.g., possession of illegal substances or weapons, acts of violence, public intoxication), any disputes relating to the appropriate housing of homeless persons, including, but not limited to, disputes regarding the availability or adequacy of any Navigation Center or Navigation Center services offered to a homeless individual pursuant to this Section 17-4(e)(2), shall be subject to the alternative dispute resolution process as provided in the Settlement Agreement to the extent that such alternative dispute resolution process under the Settlement Agreement is in effect. This Section 17-4(e)(2)(iii) shall remain in effect in the event that the case of Martin v. City of Boise (9th Cir. 2018) 902 F.3d 1031 is no longer applicable law within the jurisdiction of the Ninth Circuit, but only to the extent that the alternative dispute resolution process under the Settlement Agreement is in effect. (iv) This exception shall not apply where a homeless person and/or their personal property obstructs and actually interferes with a public area or the intended use of the public area, provided that, absent exigent circumstances relating to immediate threats to the public health, safety, or welfare, the homeless person is first advised to cease the interference and/or to move the personal property causing the obstruction and they decline to do so. However, this Section 17-4(e)(iv) shall not apply if such personal property is 13 unattended. (f) Administrative Procedures. The city manager may establish administrative policies and procedures to carry out this section consistent with this section and state and federal law, including, without limitation, based on new developments in applicable case law. (g) Violations and Enforcement. Subject to Section 17-4(e), any violation of this section may be prosecuted as a misdemeanor or infraction, pursuant to Section 1-7, 1-8, 1-9, 1-10, 1- 11, 1-12, 1-12.1, 1-12.2 of Chapter 1 of this code. Section 3. Section 17-2(c) of Chapter 17 of the Cypress Municipal Code is hereby amended in its entirety to read as follows: "Camp or lodge overnight. No person shall erect tents, shacks, or any other temporary shelter for the purpose of overnight camping in violation of Section 17-4, nor shall any person leave in a park after closing hours any movable structure or vehicle that could be used for such purpose in violation of Section 17-4. The provisions of this section shall not apply when in connection with a city -sanctioned event." Section 4. Section 17-2(e) of Chapter 17 of the Cypress Municipal Code is hereby amended in its entirety to read as follows: "Enter, remain within, or loiter in or upon any park or recreation facility during the hours such park or facility is deemed closed by posted signs except to attend a city sanctioned event or pursuant to an authorization issued by the city and then only in such park area or recreation facility area as designated by the city. This Section 17-2(e) shall not be enforced against homeless persons sitting, lying, or sleeping on any park or recreation facility when no alternative shelter is available in accordance with the holding in Martin v. City of Boise (9th Cir. 2018) 902 F.3d 1031, and only during the timeframe that the case of Martin v. City of Boise (9th Cir. 2018) 902 F.3d 1031 is applicable law within the jurisdiction of the Ninth Circuit unless the procedures in Section 17-4(e)(2) are followed." Section 5. The City Council of the City of Cypress determines that this Ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to pursuant to the California Code of Regulations, Title 14, Chapter 3, Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) because it has no potential for resulting in a physical change to the environment, directly or indirectly. Section 6. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance for any reason is held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional. Section 7. The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published in the manner required by law. This Ordinance shall become effective thirty days from and after its passage. PASSED, APPROVED, AND ADOPTED by the City Council of the City of Cypress at a regular meeting held on the 10th day of May 2021. ATTEST: u Alis a Farnell, City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS I, Alisha Farnell, City Clerk of the City of Cypress, California, DO HEREBY CERTIFY that the foregoing was duly adopted at a regularly scheduled meeting of said City Council held on the 10th day of May, 2021, by the following roll call vote: AYES: 4 COUNCIL MEMBERS: Hertz, Morales, Berry and Peat NOES: 0 COUNCIL MEMBERS: None ABSENT: 1 COUNCIL MEMBERS: Marquez ""--m vuiu Alisha Farnell, Cit Clerk 14