What Now for Communities and the Unhoused?

July 2, 2024

By Daniel C. Vock

Before the Supreme Court agreed to review the city's anti-camping law that allowed police to fine unhoused people sleeping on public property, planners in the southern Oregon city of Grants Pass grappled several times with ways they could make it easier for the 600 people experiencing homelessness in that city to get shelter.

Bradley Clark, AICP, the community development director, says efforts by local nonprofits to find a place to stay for people with no home prompted planners there to examine various types of shelters and how they fit into the city's land use rules. Advocacy groups wanted clarification about the rules for "basic needs facilities" like food pantries where people could gather to get supplies or to eat a hot meal. They were also interested in providing supportive housing, emergency shelters, or permanent shelters.

"The zoning ordinance was pretty ambiguous about land uses related to the unsheltered," he said in an interview with Planning. Advocates wanted the ability to build, for example, temporary facilities that would give residents a living area without a bathroom or kitchen, and include those features in a common area, instead.

Although Clark says those requests were "sporadic," they have taken on more significance during the legal fight that led to the Supreme Court. One of the central questions was whether homeless people can be ticketed or arrested for "camping" on public property even if there is no other legal place for them to go, like a shelter.

In its June 28 ruling on City of Grants Pass, Oregon v. Johnson, the Supreme Court said that the ordinance in Grants Pass and its enforcement measures, including fines and orders to move, do not constitute "cruel and unusual punishment," which is barred by the constitution's Eighth Amendment.

Grants Pass, an old logging town of nearly 40,0000 residents that now attracts outdoor enthusiasts, has experienced a growth in its unhoused population over the last decade or so. But a series of anti-camping ordinances passed in 2013 — which apply to places such as parks, sidewalks, and parking lots — eventually led to the city becoming synonymous with the effort by cities and other local governments to clear encampments that they often describe as unsanitary or unsafe.

But for planners in Grants Pass and throughout the country, the justices' decision likely will do little to affect the day-to-day challenges of planners. Whether people experiencing homelessness can be forcibly removed temporarily, they will still need a place to stay in the long term. Or, as Justice Neil Gorsuch said during oral arguments in April, "You end up in jail for 30 days, then you get out, you're not going to be any better off than you were before in finding a bed."

While other agencies usually take the lead on homelessness outreach, planners play an integral role in local efforts to find shelter for the unhoused, whether through changing land use regulations to allow new types of shelters, coordinating the work of other public agencies, or even addressing the needs of people without shelter in long-term planning work.

Western cities respond

Oregon has one of the highest rates of homelessness in the country, with more than 42 people without a permanent home for every 10,000 residents. Its rate trailed only those of Washington, D.C., California, and Vermont in 2022, according to data from the U.S. Department of Housing and Urban Development.

But homelessness nationwide has been on the upswing, setting a record in 2023 for the highest level since the federal government started tracking that figure two decades ago. Roughly 653,100 people were experiencing homelessness during a nationwide count on a January night in 2023. That was a 12 percent increase from the year before.

Of the people counted, six in 10 lived in a temporary shelter, while the remaining people were living in places not meant for habitation, such as sidewalks, bus shelters, or vehicles.

Federal officials said the surge was the result of a confluence of factors, including rising housing costs, the lack of affordable housing, the continuing opioid epidemic, migrants seeking asylum, and the expiration of federal support programs that helped people remain in homes during the pandemic.

Many Western states, where housing prices have skyrocketed, however, have been experiencing a very visible homelessness crisis for a decade or more. Encampments of people without homes have sprouted up in Los Angeles' Skid Row, under bridges in Portland, in the Tenderloin district of San Francisco, and in an area known as "The Zone" near downtown Phoenix.

So, it's no surprise that the legal fights over city efforts to clear those areas have also been concentrated in the West.

"As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter," the court ruled in the case of Martin v. Boise.

The debate in the Grants Pass case goes back to a previous decision by a San Francisco-based federal appeals court, which has jurisdiction over nine Western states. In 2018, a panel of the 9th Circuit U.S. Court of Appeals ruled that the government cannot "criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying, or sleeping on the streets."

"As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter," the court ruled in the case of Martin v. Boise. The Supreme Court declined to hear an appeal in the case, so it became binding in the nine states covered by the 9th Circuit. The Supreme Court ruling in Grants Pass invalidates the lower court's decision.

In Oregon, which is one of the nine states, advocates challenged Grants Pass' anti-camping ordinances on behalf of homeless individuals six weeks after the 9th Circuit handed down its decision. The plaintiffs said the city's public-sleeping, public-camping, and park-exclusion ordinances violated the Eighth Amendment's prohibition on cruel and unusual punishments, just like Boise's did. Grants Pass's ordinances allowed police to give out civil citations, not criminal fines or jail terms, for breaking the law.

But as the legal fights continued, cities in the Western U.S. took different approaches to limit encampments but still abide by the Martin decision.

A sharply divided San Diego city council, for example, passed an ordinance last year that prohibits camping near schools, shelters, transit stops, and parks at all times. It also bans staying on public sidewalks, if there are shelter beds available. The city also opened two "safe sleeping" sites that together can accommodate more than 500 tents for San Diego residents with nowhere else to go.

Since enforcement began in July 2023, the number of people camping in downtown San Diego has dropped by more than half. But tents line highway on- and off-ramps in the city, because that land is owned by the state, not the city, and the number of people who camp along the San Diego River has doubled, reported CalMatters, a local news site.

Mayor Todd Gloria, who has criticized the Martin decision, has touted his city's approach to complying with it. "The first thing is we need to build a lot more housing, and in exchange for that I don't think it's unreasonable for them to want streets to be safe and hygienic," Gloria told Politico. "If people don't see the progress, they'll increase their opposition to the interventions that help solve this problem."

'United, courageous leadership'

Back in Oregon, in a community west of Portland, officials focused on creating a more efficient system for connecting homeless people with the services and the shelter they need, says Jes Larson, the assistant director of housing services for Washington County.

"There's been a lot of thinking about how we manage all these people flooding our public spaces," she says. "You need a system that meets people where they're at, connects them to available shelter, and then moves them out of shelter into stable housing."

The county decreased the population of people experiencing homelessness by more than a third from 2021 to 2023, while eliminating seven medium and large encampments.

To do so, it sent outreach teams to people experiencing homelessness to figure out their individual needs. The county also added 440 shelter beds to help specific populations, including families, youth, couples, individuals, and their pets. The area also provided 2,000 formerly unhoused people with housing and support services. Plus, it helped people avoid homelessness altogether by using funds to prevent evictions or to pay deposits, as well as to help people in their housing searches.

During the early days of the pandemic, the county adhered to public guidance that the danger of contracting COVID-19 outweighed the health risks of living in encampments, Larson says. So, the county helped mitigate those health risks by providing portable restrooms and trash service to people living in encampments. By 2023, many of the camps had become entrenched, with 50 people staying in one of the larger gatherings on county-owned land.

But several things happened that helped the county — and its local communities — push the people staying in those encampments to find shelter elsewhere.

First, voters in three Portland-area counties passed a ballot measure in 2020 to raise $250 million a year for homelessness support services. The revenue came from an increase in income taxes for high-earners and on businesses.

Meanwhile, Oregon state lawmakers passed a law in 2021 to codify some of the key points of the Martin decision. The law required cities and counties to update their camping ordinances by 2023. They could still regulate "where, when, and how" people could camp on public land. But if they regulated how people could sit, lie, sleep, or keep warm and dry outside on public property, they had to make sure those rules were "objectively reasonable." Of course, cities could still not punish a person experiencing homelessness if they had nowhere else to go.

So, when Washington County built out its shelter system, it made sure to reserve emergency beds for law enforcement, Larson says. If a police officer found someone camping in a public place, they could offer that person a spot in the shelter. If the person who is camping refuses, they have to move on. And the shelters have never yet run out of emergency beds, she adds.

Larson says the county's progress is a good reminder for other communities that have been divided over how to take care of their unsheltered residents.

"In Washington County, until this measure passed, we did not have year-round shelter for single individuals. We only had shelter for families and youth," Larson says. "Now, we have over 400 year-round shelter beds because of this measure, because of those partners and their political courage.

"One thing we like to highlight is that in Washington County, there's united, courageous leadership on this issue. It has not devolved to finger-pointing and blaming. There's a lot of coming together."

A national challenge

Milwaukee is a long way from Oregon, not just in terms of miles, but also in the size of its unhoused population. But when an encampment of nearly 100 people cropped up under a highway interchange near downtown several years ago, local leaders relied on the same type of collaborative approach as their counterparts in Washington County did to find help for those living there.

Vanessa Koster, the deputy commissioner of Milwaukee's Department of City Development, says her involvement in the project started with garbage pickup at the site. She was the city's planning manager at the time and taking care of that problem fell under "other duties as assigned."

"Initially, I thought I could call up public works, and they'll go over and clean it up," she says. But quickly she started working with social workers from the county, city police officers who had teamed up with the local prosecutor's office, the state transportation department that owned the land, and leaders from the downtown business improvement district.

"It was very calculated that we had multiple layers of government working together... My role was not like the planner leading the effort but more like acting as a glue and trying to bring everybody together."

—Vanessa Koster, deputy commissioner of Milwaukee's Department of City Development

"It was very calculated that we had multiple layers of government working together. I brought many of these individuals together. My role was not like the planner leading the effort but more like acting as a glue and trying to bring everybody together," Koster says, noting that many had already been collaborating beforehand.

"My task was looking at a sustainable model for cleaning up under the freeways, but it really grew into, 'How do we provide shelter for the homeless individuals?'" she explains.

For example, she couldn't just organize volunteers to clean up the trash under the highways, because there were dirty needles there. That meant she needed to bring along the health department. The public works department didn't want to just leave dumpsters near the encampments, because it might encourage more people to join the camp. On the other hand, Koster discovered the state transportation department had money she could tap for freeway cleanups.

Eventually, the government and nonprofit agencies found new homes for the 93 people living in tents under the highways. More than half ended up in their own apartments. Another 25 went to transitional housing. The rest went to live with family members.

"The other positive thing, in terms of a planner's role, is that the space under the freeway had been a dead space. It was not programmed. We wondered how you stitch the neighborhoods together," Koster says.

"One way we hopefully prevent repopulation under the freeway is that we programmed the space. We did stormwater management. We did landscaping. We have bike trail... so, it's not dead space anymore. It's this massive stormwater management project where we're dealing with water runoff from the freeway and snow melting, but it also really beautified the area, too."

Meanwhile, officials in other cities are reconsidering long-standing rules about housing developments as they search for low-cost ways to give people who camp on their streets a more permanent home. The mayors of both Denver and Atlanta, for example, are pushing "micro communities" with housing units built out of shipping containers.

"Housing is a ladder. You start with the very first rung. Folks that are literally sleeping on the ground aren't even on the first rung," Denver Mayor Mike Johnston told The Associated Press as he sat in one of his city's new micro communities. Getting residents who are not experiencing homelessness to accept the new developments can be challenging, he said, but only because they are not familiar with the new approach.

"What they are worried about is their current experience of unsheltered homelessness," Johnston said. "We had to get them to see not the world as it used to exist, but the world as it could exist, and now we have the proof points of what that could be."

Clark, the planner from Grants Pass, has seen it, too. Although it doesn't use shipping containers, a development called Foundry Village opened in Grants Pass in 2021. It has 17 "little houses" with no plumbing but with electricity and heat. Residents share a common building that has a kitchen, laundry, bathrooms, and a recreation area. The accommodations are meant to be temporary — up to six months — and the facility limits pets.

But getting that development up and running required the city to adopt new building code regulations that the state made optional, Clark says. "We have laid the foundation in terms of the regulations that would allow for the development of shelters that would cover any demand we would see."

Those kinds of options are important, he says, because housing supply in Grants Pass hasn't kept up with growing demand, particularly as retirees from California sell their homes and move to the Oregon city. Homebuilding labor is difficult to find, and the lots where new homes would go are scarce.

"We're situated in a bowl, where we have quite a bit of steep slopes in the city, not a ton of flat land. Building on slopes adds to the cost of the house," he explains. "Getting sewer to it, getting water to it, building drainage systems, all of that is expensive."

If there's a benefit to being in the spotlight on issues of homelessness, Clark says, it's that the experience has driven home the focus on equity that the American Planning Association (APA) has promoted for more than two decades.

"When we're talking about low-income people of diverse races and gender, certainly the unhoused are falling into that. Rather than seeing them as an 'issue,' we are seeing them as members of the community," Clark says. "It gets easy to get lost in the politics of the unhoused. But we need to think about some of the planning work that needs to happen."

That means including residents experiencing homelessness when getting community feedback, and addressing their needs when doing long-term planning, he says. "I think it really has raised some awareness for us and opened up our eyes. We need to hear what their needs are, and we need to provide that channel for them to have input into the city's long-range plans."

The awareness level in general, he says, "has just made us better planners."

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