Hi Neighbor,
After nearly two months under the new federal administration, I know I share the concerns of many in our community about the public programs and services abruptly halted and government workers let go. When federal funds for public programs were abruptly frozen in late January, our City staff began preparing a report for the Council that itemizes all of our federal funding sources. The City receives a total of about $27 million in direct funding from the federal government, and we must be prepared for possible cuts to federal programs on which our most vulnerable residents rely. Any loss of federal funding will require us to make even tougher choices about how to prioritize our scarce resources.
Many of you have written to the Council sharing your concerns about homeless encampments—at Civic Center Park, Ohlone Park, and in West Berkeley. I have read your messages, and in this newsletter I want to clarify City policies related to homeless encampments in our parks and the City’s approach to addressing them. Signage in our parks cite rules related to park hours from 6 a.m. to 10 p.m. (Berkeley Municipal Code Section 6.32.020) as well as rules promulgated under Berkeley Municipal Code Section 6.32.030 that it is unlawful to set up a structure greater than 10 square feet without a City-issued permit.
Taken together, these two rules amount to a ban on overnight camping in all City parks. The primary reason that the encampments at Civic Center Park and Ohlone Park have persisted is because our City has had limited staff capacity to enforce the no camping policy in our parks at the same time that they were conducting a significant operation to close dangerous encampments in West Berkeley—on Second Street and on Harrison Street.
BACKGROUND ON HARRISON AND SECOND STREET ENCAMPMENTS IN WEST BERKELEY.
Harrison encampment residents received a Notice of Health Hazard and Public Nuisance and Order to Abate on January 7. The abatement order was issued due to the health hazards and public nuisances documented by the City, including loose and scattered syringes, rodent harborage conditions and evidence of extensive and active rodent burrows, unmitigated human and animal waste, and open/rotting sources of food. Obstruction of sidewalks and vehicular lanes of traffic was also a contributing factor. The notice stipulated that the City would be closing the Harrison encampment on or after February 10.
This timeline was established to allow for due process for encampment residents, as required under the Berkeley Municipal Code. The City must always abide by the Fourth Amendment protecting individuals against unreasonable search and seizure, the Fifth Amendment guaranteeing due process and the Fourteenth Amendment guaranteeing equal protection under the law.
The City’s policies and procedures related to temporary storage of belongings is one aspect of ensuring compliance with these Constitutional law requirements.In September 2024, the City Council adopted an encampment policy I authored that gives our City staff greater ability to close an encampment when it poses a health and safety hazard. The policy prioritized the closure of dangerous West Berkeley encampments on Second Street and Harrison Street. Last fall, the City was also awarded a state Encampment Resolution Fund grant which enabled us to lease the 26 rooms at the Howard Johnson Motel to offer 24-7 transitional housing to residents of the Second Street encampment, with 35 individuals (some couples) accepting a room.
STATUS OF HARRISON ENCAMPMENT CLOSURE.
On February 11, the Berkeley Homeless Union and three Harrison encampment residents filed a federal civil suit alleging that they were improperly denied accommodations under the Americans with Disabilities Act (ADA) as part of the closure of the Harrison encampment. The court has issued a temporary restraining order of the closure and scheduled the hearing on the plaintiffs’ request for an injunction on April 29. The current temporary restraining order will remain in place through April 29, meaning the order to vacate the Harrison encampment cannot currently be enforced.
The court order granting the temporary restraining order stated that the plaintiffs have raised “serious questions” as to whether the City had taken enough steps to complete an interactive process to address each individual plaintiff’s request for a reasonable accommodation as required under the ADA. This does not mean the City has violated the ADA, but it indicates that more work can be done to demonstrate compliance to the court’s satisfaction.
The additional time between now and the new hearing date on April 29 will allow City staff to work with plaintiffs to identify ways in which the City may be able to reasonably assist them in complying with the order to vacate the Harrison encampment. A negotiated resolution would avoid protracted litigation with an uncertain outcome. Even if the parties cannot resolve their differences between now and April 29, the efforts to do so will help the City demonstrate to the court that it has complied with the legal requirements to engage in a good faith interactive process.
To put this situation into context, it is common for encampment closures to be legally challenged in Berkeley and elsewhere, and we simply have to wait for the legal process to play out. Given the temporary restraining order for the Harrison encampment, City staff have shifted their attention to Civic Center Park, where we have identified all individuals residing in the park and begun to make shelter offers that have been accepted.
I have spoken to our City Manager about the need to address the encampment at Ohlone Park as soon as staff resources are available to do so. I understand this is a complex issue and you may have questions or wish to share your perspective. If you’d like to schedule time to talk, please feel free to contact me: rkesarwani@berkeleyca.gov or 510-981-7110.
