Tom Van Overbeek’s proposal to ban camping in Chico Parks

Good idea, wrong approach

During the final city council meeting of January, Tom Van Overbeek suggested the Council ban camping under emergency powers in Bidwell Park, Lindo Channel, and Teichert Ponds.

5.3. COUNCILMEMBER VAN OVERBEEK REQUEST - EMERGENCY ORDINANCE

At its meeting of 1/28/25, the Council voted to waive its rules and agendize a discussion regarding Chico Municipal Code 2.68.030 which allows the Mayor to declare an emergency. This would happen just before the vegetation dries out, and to permanently close Bidwell Park, Lindo Channel, and Teichert Pond to people camping, and to have the City Attorney explore this further.

I wrote a summary of the recent homeless history recently, here: https://robberry.substack.com/p/a-review-of-the-homeless-issue-in?r=qy2lv

Let’s consider how this proposal fits into that historical context.

Emergency Powers

Title 2 of our Municipal code deals with Emergencies, including the powers to declare them and establish an emergency operations center.

This section implements the California Emergency Services Act, which defines a local emergency in Section 8558 of the Calif. Gov. Code as follows:

“Local emergency” means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the territorial limits of a county, city and county, or city, caused by such conditions as air pollution, fire, flood, storm, epidemic, riot, drought, sudden and severe energy shortage, plant or animal infestation or disease, the Governor’s warning of an earthquake or volcanic prediction, or an earthquake, or other conditions, other than conditions resulting from a labor controversy, which are or are likely to be beyond the control of the services, personnel, equipment, and facilities of that political subdivision and require the combined forces of other political subdivisions to combat, or with respect to regulated energy utilities, a sudden and severe energy shortage requires extraordinary measures beyond the authority vested in the California Public Utilities Commission.

Our local ordinance, Title 2.68.020 F, defines a local emergency as follows:

“F. Emergency-Local (Local Emergency). The duly proclaimed existence of an emergency within the city pursuant to this chapter, the conditions of which are, or are likely to be, beyond the control of the services, personnel, equipment, facilities and resources of the city and which will require, or are likely to require, the assistance and resources of other public or private local, regional or state agencies to combat.”

Emergencies are of a relatively short and immediate duration, and they are beyond the capacity of the City’s own resources to manage.

Section 2.68.030 gives the power to declare such an emergency to the Mayor or Director of Emergency Services, and a chain of command should the Mayor be unavailable. This was done during the Camp fire, Covid plandemic, and Park fire. The City Manager becomes the Director of Emergency Services.

The problem is not whether the Mayor has the power to declare an emergency, but whether the conditions Tom wishes to address constitute an actual emergency as defined by law, and what “outside” services are contemplated to deal with the declared emergency.

Is this an emergency?

The problem of people commandeering our parks for encampments has been with us for decades. It first involved the suspension of enforcement under the Brown New Deal, then the consequences of the lawsuit filed to halt enforcement under Warren v. Chico, and finally, the Warren Settlement, which resolved that case. The city has recently petitioned the court under Rule 60 of the Federal Rules of Procedure for limited relief from that settlement, currently pending the judge’s decision.

Emergencies are “exigent circumstances” because there is little time for planning and preparation. A wildfire that threatens Chico homes is an emergency. Proactively banning certain activities to lower the fire risks is not a response to an emergency. It is a rational management plan to mitigate a potential risk.

Assuming we could get over the “emergency” hurdle, what outside resources or services does the City require to enforce a ban on camping in these locations? Will they require state police, the National Guard, CDF, CalFire, etc.?

No. Only the Chico PD, and perhaps our local fire marshal (yes we have one), and code enforcement are needed to implement such a ban. Contacts will presumably be made on a non-emergency basis since the presence of an actual fire is not necessary to affect the removal. Ongoing presence in the prohibited area would be sufficient.

If enforcement is carried out, despite the binding Warren Settlement terms, the city will face legal challenges arguing emergency powers are being misused to skirt the settlement. That challenge is very likely to prevail.

Are emergency powers needed to accomplish what Tom proposes?

Fire prevention by banning camping in certain areas is a proactive measure to reduce the notorious “warming fires” accompanying almost all illegal encampments. This is a legitimate concern. This community has suffered more than most from the consequences of fires.

Two of the most directly devastating to Chico have been the most recent Park Fire, started in Bidwell Park (not from a warming fire, but an intoxicated felon who at the very least acted with gross negligence), and the destruction of the Bidwell Mansion, which we now know was an act of arson by someone who was not homeless.

But fires (and other impacts of encampments) are a legitimate matter of public safety. All three of the parks mentioned by Tom—Bidewell, Lindo Channel, and Teichert Ponds—have had multiple incidents of fires that were associated with encampments or facilitated by the presence of encampments. Because “warming fires” are such a common occurrence, citizens are sometimes reluctant to report them.

We know that several squatters themselves have been seriously injured in encampments from fires. There have been many “close calls” where fires burned fences and other private property that could have easily spread to homes if they were not successfully extinguished quickly by the Chico Fire Department.

This is the basic argument made in the Rule 60 petition, that failure to relieve certain enforcement restrictions imposed by the settlement negatively impacts public health and safety.

What does the Warren Settlement say about public safety issues?

Not much. The word “safety” appears in the settlement 10 times: four dealing with O&E’s right to ask for police presence if they feel unsafe, three times to give the city the right to destroy property if it poses a health and safety risk, one dealing with the storage of personal property at the Pallet shelter, one excusing pallet residents from eviction for unsafe practices outside the shelter, and once in the dispute resolution section.

The mention of safety in the dispute resolution section is interesting. Here is what it says:

If the Dispute involves an emergency situation that presents a threat to the immediate health and safety of an individual, the parties may seek expedited review by Judge Newman.

Imagine! Even when faced with a health and safety emergency, the negotiators of this agreement agreed to first make an appointment with the Magistrate before taking any action. Some “emergency”.

This is unconscionable. Why any City Attorney or City Manager would agree to this list of restrictions and its broad sweeping language, is another question we may never have answered.

As we see, CMC 12.18.430 12R.04.370, the park ordinances and regulations, prohibit camping and closure even if directed by the Parks Director. Once again, our City Attorney Ewing inserted the following exception to the enforcement of this ordinance:

“This section is not applicable to unsheltered individuals when there is no available shelter space, as defined in Section 9.20.020, for the unsheltered individual otherwise in violation of this section.”

This power to ban camping and close parks cannot be exercised if the public health and safety activity being addressed happens to be illegal camping, thanks to Warren. Even our primary city ordinance to ban camping on public lands has this unconstitutional exception:

“This section is not applicable to unsheltered individuals when there is no available shelter space, as defined in Section 9.20.020, for the unsheltered individual otherwise in violation of this section.” CMC 9.20

This clause establishes a “protected class” under the law and directly violates the Equal Protection Clause of the 14^th Amendment. This is the burden Ewing and Orme, both now fired, left us with.

The ordinances listed in the Warren Settlement bring them expressly under the control of the settlement terms. They are:

C.M.C. Chapter 9.20

(CAMPING; §§ 9.20.010 – 9.20.070), including §§ 9.20.020 and 9.20.030 (Citywide Camping Prohibition), § 9.20.050 (Storage of Personal Property in Public Places), and § 9.20.055 (Property Removal);

C.M.C. § 9.50.030 (B)-(E)

(Waterways Ordinance – Camping, Staying, Storage of

Personal Property, Entering and Remaining);

C.M.C. § 12.18.430

(Park Ordinance – Camping);

C.M.C. § 12.18.450

(Park Ordinance – Closure)

C.M.C. § 12R.04.340

(Park Regulation – Camping);

C.M.C. § 12R.04.370

(Park Regulation – Closure);

California Penal Code § 647(e)

State trespassing law (this is probabably illegal. Parties to an agreement cannot nullify state law.)

Another troubling phrase appears at the beginning of this list of ordinances. It reads:

Anti-Camping Ordinances and Regulations” means the following provisions of the Chico Municipal Code (“C.M.C.”) and State law and any analogous provision(s) of local or State laws as applied against homeless Persons on Public Property:

What is the meaning and extent of what enforcement gets caught up by the words “analogous provisions?” That has not been tested because we have not bothered to test it in court. We may never understand why any attorney would agree to be bound by such ambiguous and sweeping language.

We also don’t know the impact this phrase has had on our unwillingness to address other laws not expressly listed in the settlement. Many ordinances exist that are not barred by the settlement. Furthermore, nothing prevents the city from enacting new ordinances to regulate nuisance conduct. We also have the tools of code enforcement provisions with the weight of law.

Here are a couple of examples, one specifically addressing fires in parks.

Ordinances addressing fire in parks:

C.M.C. 12.18.230 Fires - Restrictions.

A. Except as herein otherwise provided, it is unlawful to make any fire at any point in any park, greenway, or open space, in the city, except at regularly established places for such purposes. "Regularly Established Places" are defined to be masonry, concrete or metal constructed fireplaces, pits or grills in designated city parks. Only charcoal briquettes from manufactured sources shall be used in Regularly Established Places. The use of portable propane barbecue devices is also allowed in Regularly Established Places only.

This ordinance is not barred by the Warren Settlement. Nowhere in the Warren Settlement is “fire” mentioned.

While we’re at it, neither is the following Ordinance:

C.M.C. 12.18.220 Control of Animals.

Except as otherwise provided under Article IV of this Chapter as related specifically to dogs, no person shall bring any wild or domesticated animal into any park or playground in the city unless the animal is penned, caged or kept and maintained on a leash under the effective control of the owner or handler and restrained by a leash not exceeding six (6) feet in length.

There have been at least two dog attacks traced to homeless owners that have caused serious injury. In both cases, the dogs were unleashed and not under the owner’s control.

There are other ordinances like this. We might ask why, the reluctance to enforce public safety laws operating beyond the reach of the Warren Settlement? Is it the “any analogous law” issue? Or would the law firm responsible for representing the city have to throw itself under the bus for creating this situation for the city by proposing such a draconian usurpation of our police powers?

Public Safety is referenced only indirectly in the Dispute Resolution section of the Settlement

If the Dispute involves an emergency situation that presents a threat to the immediate health and safety of an individual, the parties may seek expedited review by Judge Newman.

Imagine! Even when confronted with a health and safety emergency we agreed to postpone any response until we get on the Magistrate’s calendar! This is ludicrous.

If we believe that the Warren Settlement is the law, and no consideration for public safety can prevent its enforcement to the letter, such closures as Tom contemplates would be expressly prohibited, even in an emergency.

There are many ways to attack the unreasonable restraints of the Warren settlement, starting by refusing to concede the point that this settlement controls all city enforcement authority. This is besides the currently pending Rule 60 motion for relief.

We could begin by enforcing existing fire restrictions to the full extent of the law. Citing unleashed and unvaccinated animals is another avenue to greater safety. We make the courts stop us. We make LSNC stop us. We chose public safety over the Settlement wherever we can, starting with the lowest hanging fruit.

Other hazards besides fires should be addressed, but fires are a good start. We don’t need to declare an emergency to accomplish that.