BROOKE WEITZMAN SBN 301037 WILLIAM WISE SBN 109468 …€¦ · g. Food scarcity 18 h. The lack of...

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BROOKE WEITZMAN SBN 301037 WILLIAM WISE SBN 109468 ELDER LAW AND DISABILITY RIGHTS CENTER 1535 E 17th Street Santa Ana, California 92705 t. 714-617–5353e. [email protected]. [email protected]

CAROL A. SOBEL SBN 84483 MONIQUE ALARCON SBN 311650 LAW OFFICE OF CAROL SOBEL 725 Arizona Avenue, Ste 300 Santa Monica, ca 90401T. 310 393 3055E [email protected]. [email protected]

PAUL L. HOFFMAN SBN 71244 CATHERINE SWEETSER SBN 271142SCHONBRUN, SEPLOW, HARRIS &

HOFFMAN11543 Olympic BoulevardLos Angeles, California T. 310 396-0731E. [email protected]. [email protected]

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

HOUSING IS A HUMAN RIGHT, et al.,

Plaintiffs,

Case No. 8:19-cv-00388 PA JDE

MEMORANDUM IN SUPPORT OF EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER

v.

COUNTY OF ORANGE, et al. Date: None Time: None Ctrm: 9A

Defendants.

Case 8:19-cv-00388-PA-JDE Document 69-1 Filed 06/30/19 of 76 Page ID #:996

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TABLE OF CONTENTS

I. INTRODUCTION 1

II. THE CITY’S PAST HISTORY OF NONCOMPLIANCE WITH SB2 2

III. THE EMERGENCY ORDINANCE 2

A. The Urgency Ordinance 2

B. The Community Safety Plan Standard Operating Procedures 3

C. Other Applicable Ordinances and Regulations 3

1. The ban on overnight use of a park 3

2. The ban on camping or living in a vehicle 3

IV. THE SEWAGE PLANT LOT 4

V. CONFINING PLAINTIFFS TO A BARREN LOT WITHOUT SHADE 6OR WATER VIOLATES FOURTEENTH AMENDMENT RIGHTS

A. Defendant Knowingly Placed Plaintiffs in Significant Danger 6

B. The Risk of Hyperthermia is Substantial 6

C. Shelter and Shade are Basic Human Needs 8

D. The State Recognizes the Threat of Heat Exposure 8

1. The Center for Disease Control (“CDC”) 9

2. Occupational Health and Safety Act Guidelines (“OSHA”) 9

3. The Orange County Public Notices on Heat 10

VI. DEFENDANT VIOLATES BASIC DISABILITY PROTECTIONS 10

A. The Sewage Plant Lot Violates Disability Protections 10

1. The sewage plant camp is a “facility” under the ADA 10

2. The sewage plant lot is required to be accessible 11

3. The site disproportionately burdens people with disabilities 11

a. The test for an ADA violation 12

b. Plaintiffs are “Qualified” individuals” with disabilities 12

4. A facially neutral policy may unduly burden disabled persons13

5. The Disability Violations at the Sewage Plant Lot 15

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a. The physical topography 15

b. The lack of shade 16

c. The lack of water 16

d. The lack of adequate sanitation 16

e. The lack of disability accessible parking 17

f. The impediments to medical continuity 18

g. Food scarcity 18

h. The lack of qualified personnel on site 19

B. The City Denies Meaningful Access By Failing to 19Provide Reasonable Accommodations

C. There is No Emergency Plans for Disabled Persons at the Site 20

VII. PLAINTIFFS ARE ENTITLED TO EMERGENCY RELIEF 21

A. The Standard for a Temporary Restraining Order 21

B. Plaintffs Have Shown a Likelihood of Success on the Merits 22

C. Plaintiffs Have Shown They Will Suffer Irreparable Harm 22

D. The Balance of Equities Tips Sharply in Plaintiffs’ Favor 23

E. A Temporary Restraining Order is in the Public Interest 23

CONCLUSION 23

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TABLE OF AUTHORITIESFEDERAL CASES:

Allen v. City of Lake, 71 F. Supp. 3d 1044 (ND Ca. 2014) 23

Alexander v. Choate, 469 U.S. 287 (1985) 14,20

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) 22

Armstrong v. Mazurek, 94 F.3d 566 (9th Cir. 1996) 21

Bassilios v. City of Torrance, 166 F. Supp. 3d 1061 (C.D. Cal. 2015) 11,17

Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 13179 F.3d 725 (9th Cir. 1999)

Bolter v. Jacques, No. C 09-04587 CW (PR), 82010 U.S. Dist. LEXIS 61716 (N.D. Cal. June 1, 2010)

California Found. for Indep. Living Centers v. Cty. of Sacramento, 20142 F. Supp. 3d 1035 (E.D. Cal. 2015)

Clark v. Cal., 739 F. Supp. 2d 1168 (N.D. Cal. 2010) 16

Crowder v. Kttagawa, 81 F.3d 1480 (9th Cir. 1996) 14

Dare v. California, 191 F.3d 1167 (9th Cir 1999) 13

Duvall v. Cty. of Kitsap, 260 F.3d 1124 (9th Cir.2001) 14

Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486 (9th Cir. 1996) 21

Farmer v. Brennan, 511 U.S. 825 (1994) 9,17

Fortyune v. City of Lomita, 766 F.3d 1098 (9th Cir. 2014) 11,17

Helling v. McKinney, 509 U.S. 25, 32 (1993) 8

Henry A. v. Willden, 678 F.3d 991 (9th Cir. 2012) 8

Hernandez v. Cty. of Monterey, 110 F. Supp. 3d 929 (N.D. Cal. 2015) 18

Honig v. Doe, 484 U.S. 305 (1988) 22

Hope v. Pelzer, 536 U.S. 730 (2002) 11

Hubbard v. SoBreck, 554 F.3d 742 (9th Cir. 2009) 14

Jeremiah v. Sutter Cty., 2018 WL 1367541 (E.D. Cal. Mar. 16, 2018) 6

Justin v. City of Los Angeles, Case No. CV-0012352 LGB - AIJx, 212000 WL 1808426 (CD CA 2002)

Kennedy v. Ridgefield City, 439 F.3d 1055 (9th Cir. 2006) 8

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Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993) 11

Kirola v. City and Cty. of S.F., 860 F.3d 1164 (9th Cir. 2017) 11

K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088 (9th Cir. 2013) 13 League of Wilderness Defenders/Blue Mtns Biodiversity Proj. v. Connaughton, 23752 F.3d 755 (9th Cir. 2014)

Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) 12

Leiva-Perez v. Holder, 640 F.3d 962 (9th Cir. 2011) 21

Los Padres Forestwatch v. U.S. Forest Service, 22776 F. Supp. 2d 1042 (N.D. Cal. 2011)

Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002) 13

L.W. v. Grubbs, 92 F.3d 894 (9th Cir. 1996) 6

McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004) 13,19

Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) 23

Monterey Mech. Co. v. Wilson, 125 F.3d 702 (9th Cir. 1997) 22

Munger v. City of Glasgow Police Dep't, 227 F.3d 1082 (9th Cir. 2000) 6

Nelson v. Nat’l Aeronautics & Space Admin., 530 F.3d 865 (9th Cir. 2008), 22rv’d on other grounds and remanded, 562 U.S. 134 (2011)

Olmstead v. Zimring, 527 U.S. 581 (1999) 19-20

Orange County Catholic Worker (“OCCW”), et al. v. County of Orange, et al., 2Case No.:18-cv-00155 DOC KES

P.P. v. Compton Unified Sch. Dist., 135 F. Supp. 3d 1098 (C.D. Cal. 2015) 19

Reese v. Barton Healthcare Sys., 606 F. Supp. 2d 1254 (E.D. Cal. 2008) 13

Rodde v. Bonta, 357 F. 3d 988 (9th Cir. 2004) 13,18

Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281 (9th Cir. 2013) 21

Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415 (9th Cir. 1984) 22Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002)

Steffel v. Thompson, 415 U.S. 452 (1974) 22

Stuhlbarg International Sales Co. v. John D. Brush Co., 21240 F.3d 852 (9th Cir. 2001)

Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) 22

Vivid Entm’t, LLC v. Fielding, 774 F.3d 566 (9th Cir. 2014) 21

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Weinreich v. Los Angeles County Metropolitan Trans. Auth., 12114 F.3d 976 (9th Cir. 1997)

West v. Rahr, 2009 U.S. Dist. LEXIS 87818 (W.D. WA 2009) 16

Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) 21

Wong v. Regents of Univ. Of Cal., 192 F.3d 807 (9th Cir. 1999) 19

Wood v. Ostrander, 879 F.2d 583, 589 (9th Cir. 1989) 6

Yeskey v. Pa. Dep’t of Corr., 118 F.3d 168 (3d Cir. 1997), 12aff’d, 524 U.S. 206 (1998)

STATE CASES:

Hankins v. El Torito Restaurant, Inc., 63 Cal.App.4th 510, 523 (1998) 14

FEDERAL STATUTES:

24 C.F.R. § 576.403(b)(6) 16

28 C.F.R. § 35.104 11

28 C.F.R. § 35.130(b)(7) 19

28 C.F.R. 35.133(a) 16

28 C.F.R. § 35.151(a)(1) 11

28 C.F.R. § 35.151(b)(1) 11

28 C.F.R. § 35.151(c)(3) 11

28 C.F.R. § 35.151(b)(4) 11

28 C.F.R. § 35.402 11

42 U.S.C. § 12132 12

42 U.S.C. § 12131(2) 14

CALIFORNIA STATUTES:

Cal. Civil Code §54(c) 14

Ca. Gov. Code §65454 2

Ca. Gov. Code §65580.5 2

Ca. Gov. Code §65860 2

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LOCAL ORDINANCES:

SCMC §1.16.010 3

SCMC §9.12.060H 3

SCMC §9.04.100 3

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I. INTRODUCTION

Plaintiffs bring this motion for a temporary restraining order to end grave

conditions that imperil the immediate health and safety of homeless persons in San

Clemente. Under threat of arrest, the City forced unhoused people to move to a

barren piece of land previously found unfit for human or animal habitation. The

crucial, unremediable feature is that it is only accessed by going up a hill, creating an

illegal impediment for those with mobility and visual impairments, or who are older.

There is no nearby disability parking. Compounding the situation, the portable toilets

are filled with human waste, there is no potable water, the terrain is unsafe and

Plaintiffs face unrelenting exposure to the elements. The site should be closed.

These inhumane conditions are the City’s response to a sharp increase in the

number of unhoused persons in the City and South Orange County to 538 in the 2019

Point in Time Count (“PIT”), nearly double the 286 in the 2017 PIT. See Everyone

Counts, County of Orange 2019 Point in Time Summary, April 2019, at:

www.everyonecountsoc.org/2019-pit-info. Emergency shelter beds did not increase

at all. See https://www.211oc.org/images/PIT-Fl-Report-2017-072417.pdf. The only

emergency shelter in the region is the ASL in Laguna Beach, with space for seven

percent of unhoused persons in South County on any night, if they can get there and

the beds are not taken by Laguna Beach residents. While more than half of homeless

persons in Laguna Beach are sheltered, only one-third of San Clemente’s are.

Everyone Counts, p.11, www.everyonecountsoc.org/2019-pit-info.

On its website, the City links to homeless services.1 All the emergency shelters

listed are outside of the City, including the Laguna Beach ASL and the now-closed

winter shelters in Fullerton and Santa Ana. The third, Laura’s House, is a domestic

violence shelter in South County. The City also lists three transitional and supportive

housing resources, all for families with children, and the Rescue Mission, a sectarian

1 www.san-clemente.org/home/showdocument?id=45276

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facility in Tustin, 28 miles and several hours away by public transit. The Friendship

Shelter’s Henderson House in San Clemente serves only severely mentally ill youth.

In July 2018, the City contracted with Mercy House to help unhoused residents

but only offered shelter at The Courtyard in Santa Ana, 31.5 miles away. Then, as

now, the Courtyard was over capacity. In April 2018, the Court in Orange County

Catholic Worker (“OCCW”), et al. v. County of Orange, et al., Case No.:18-cv-

00155 DOC KES (C.D. Cal. 2018), stopped other cities from sending people to The

Courtyard so Santa Ana could move hundreds camped at the Civic Center, across the

street from The Courtyard. Santa Ana moved for and was granted intervenor status

in OCCW and named all the other cities as cross-defendants. [Doc 124,130,158].

II. THE CITY’S PAST HISTORY OF NONCOMPLIANCE WITH SB2

San Clemente was successfully sued a few years ago for failure to meet

California Government Code, requiring the City’s General Plan to provide for special

needs groups, including seniors, disabled and homeless persons. See e.g., Ca. Gov.

Code §§65580.5, 65860. All local land-use decisions, including site specific plans,

must conform to the adopted General Plan. §65454. The City now decided that the

only place an unsheltered person may put up a tent, and then only at night, is a barren

lot repeatedly rejected as a shelter site. The City’s Planning Committee Agenda for

September 21, 2016 contains an analysis of each possible shelter site then being

considered.2 The report also describes geological threats at the site and notes that the

previous Animal Services shelter was moved because of these concerns. Id.

III. THE EMERGENCY ORDINANCE ON CAMPING

A. The Urgency Ordinance

On May 21, 2019, the Council approved an agenda item titled “Consideration

of Ordinances Relating to the Prohibition of Camping on Public Property.” Exhibit

2 See Amber Gregg, Staff Report San Clemente Planning Commission 62, 68 (Sept.21, 2016), http://www.san-clemente.org/Home/ShowDocument?id=30052. Figure 4, p. 62,depicts the lot. Exhibit 1 is a true and correct copy of Figure 4.

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1u9, Urgency Ordinance No. 1673. It removed homeless persons from North Beach

and other areas to the “Designated Camping Area,” asserting “exigent circumstances

relating to immediate threats to the public health, safety, and welfare.” Id. The

Ordinance recited the “risk of death and injury [to homeless individuals] due to

natural disasters such as landslides, floods, ... exposure to weather, lack of adequate

sanitation and debris services, and other conditions detrimental to their health and

safety,” stressing harm to unhoused individuals from “unsanitary conditions.” Ex.1,

pp.6,7 (edit supplied). It restricts unhoused people to the sewage plant lot, “the sole

public area in the City available for camping purposes by those persons experiencing

homelessness or otherwise unable to obtain shelter.” Ex.1, p.16, Sec. 4. On May 24,

2019, with the Orange County Sheriff’s Department, the City enforced the ban. All

the harms listed to rationalize the Urgency Ordinance are magnified at the camp.

B. The Community Safety Plan Standard Operating Procedures

With the Urgency Ordinance, the City posted a list of rules for the lot. Exhibit

2. While most are similar to the rules usually applied at shelters and supportive

housing facilities – no violence, no weapons, no drugs, etc. - the sewage plant site

rules include a ban on tents between 10 a.m and 5 p.m. Id. On June 4, 2019, the

Council voted to codify these “Transitional Camp” rules in the Municipal Code,

increasing the penalty for an offense. A Municipal Code violation is a misdemeanor

unless otherwise stated in the ordinance. SCMC §1.16.010.

C. Other Applicable Ordinances and Regulations

1. The ban on overnight use of a park

SCMC §9.12.060H,“Municipal parks and trails,” provides that:

No vehicle will remain parked in any City park parking lot past theposted curfew set forth in this section, or said vehicle shall be removedpursuant to California Vehicle Code Section 22651 sub.(n).

2. The ban on camping or living in a vehicle

SCMC §9.04.100 - “Trailers, Mobilehomes, etc.—Occupancy Outside

Mobilehome Parks,” provides that:

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Except as provided in Title 17, no person shall occupy or use anymobilehome, trailer, camp car, vehicle or other conveyance, tent ortemporary structure of any kind as a dwelling or for living or sleepingpurposes upon any public or private property within the city, exceptwithin a mobilehome park or campground which is operating under alicense or other permit from the city, or operating under jurisdiction ofthe state.

IV. THE SEWAGE PLANT LOT

In the City’s zoning plan, the lot is listed as the San Clemente Sewer Plant City

Corporation Yard.3 The City previously tried to designate the property, the former

site of the City’s animal shelter, as a shelter location in its SB 2 Emergency Shelter

Overlay Zone. The City Planning Commission deemed the area too geologically

unstable. As one Planning Commission member stated: “because the site was deemed

too hazardous to house animals, it seems to follow that it would be too hazardous for

the homeless as well.”4 Previously, it was used for waste and parking.5

Most critically, the site is not disability accessible. There is no way to go to

and from the camp without climbing a hill no matter which direction a person walks.

To get to Pico Park across the street from the camp, where there is access to potable

water, clean bathrooms and cooking areas, a person has to walk about a quarter of a

mile down the incline on Avenida Pico to Camino El Real, and then back up the hill

on the other side of Avenida Pico, with another incline to get from the sidewalk to the

facilities in the park. Nichols Decl. ¶¶13,15; Scheyer Decl. ¶¶6-7, 9-11 and Ex. A, B.

Before opening the camp, the City fenced off the lot, leaving only a narrow

gate to enter and exit. Two other gates are chained and padlocked. Mikulec Decl. ¶15

and Ex. L-1, L-2. The City brought in two portable toilets, one of which is disability

accessible. They are located in the far corner of the lot, above a ravine, along with

two dumpsters and a handwashing station. Scheyer Decl. ¶15 and Ex. E. Below the

3 See http://www.san-clemente.org/home/showdocument?id=24929

4 Remarks of Comm. Ruehlin, Planning Commission Minutes, May 7, 2014.

5 Ex. 3: Google Satellite image of sewage plant lot taken June 8, 2018.

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toilets is a storm drain channel that leads to the ocean. Id. ¶12 and Ex. F, G. A third

toilet on site is locked and reserved for the security guard. Sobel Decl. ¶4 and Ex. C.

The toilets are a public health crisis. Within a few days of the camp opening,

they were full of human waste. Mikulec Decl. ¶¶9-11 and Ex. E-G; Sobel Decl. ¶3

and Ex. A and B; Nichols Decl. ¶8-9; Brown Decl. ¶¶4,6; Weitzman Decl. ¶5 and Ex.

B. A notice is posted on the outside of one of the toilets, listing service dates.

Mikulec Decl. ¶9 and Ex. E. Even a day after the toilets were supposedly cleaned,

they were intolerable. The stench of the toilets is strong, as are noxious fumes from

the sewage plant. Nichols Decl. ¶¶8,14; Scheyer Decl. ¶15. Also, one of the

dumpsters was starting to overflow with trash. Mikulec Decl. ¶11 and Exhibit H.

There is no shade, no potable water and no electricity on the site, so there is no

way to get out of the heat, store medications or charge a cell phone, and there is no

easy way for those with disabilities to get to a location where electricity is available

because, if they travel from the park, they have to climb the hill to return. A cell

phone is a lifeline for an unhoused person who needs to make contacts for services

and medical treatment and emergency services. Nichols Decl. ¶11.

There is no parking at the site. Disabled individuals with vehicles are unable

to park at the camp and there is no accessible disability parking nearby. Ponce Decl.

¶¶5,7; O’Malley Decl. ¶16; Mikulec Decl. ¶¶18-20 and Ex. M,N,O-1, O-2, P,Q. A

bicycle lane abuts the sidewalk next to the only entrance to the campsite. Mikulec

Decl. ¶ 19 and Ex. O-1. The area is posted as a bicycle land with “No Parking Any

Time.” Weitzman Decl. ¶3 and Ex. A. Pico Park is the closest place to the camp to

park, but there is no access from there to the camp without walking up and down a

hill to get to the camp entrance on the other side of Avenida Pico. Scheyer Decl. ¶¶6-

7. Disability parking is only available at Pico Park during the day. SCMC

§9.12.060H. See Sec. III C, supra. For disabled homeless persons with a car, such

as Monica Ponce and Michael O’Malley, it is a hopeless situation. They cannot park

overnight near the camp and risk arrest if they sleep in their cars. SCMC §9.04.100.

In addition to excluding disabled persons with cars from getting to the

campsite, the lack of parking seriously impacted the donations that many of San

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Clemente’s homeless community depend on to survive. Unable to park at the site to

drop off food and supplies, volunteer efforts have dwindled. Nichols Decl. ¶12;

Weitzman Decl. ¶4. Maura Mikulec was issued a citation when she stopped to unload

supplies. Mikulec Decl. ¶20 . Finally, while the City claimed the site would hold the

entire all homeless people, within a week it was full and people were turned away and

told there was a waiting list. O’Malley Decl. ¶¶9-11,15; Nichols Decl. ¶19.

Plaintiffs want a place where they can sleep, rest and live safe from harassment

and threats of arrest as they have no choice but to live in public places. However, it

must be disability accessible, accommodate individual disabilities and not put

unhoused people at greater healthy and safety risks. A barren lot repeatedly deemed

unfit for human habitation, with intractable disability barriers, no shade, no potable

water, no access to electricity, and inadequate sanitation is not healthy, safe or lawful.

V. MOVING PEOPLE TO A BARREN LOT WITHOUT SHADE, WATER,OR SANITATION VIOLATES THE FOURTEENTH AMENDMENT A. Defendant Knowingly Placed Plaintiffs in Significant Danger

Forcing Plaintiffs to move to the camp, devoid of basic services, protection

from the elements and disability access, places them in an inherently dangerous

situation, threatening their health and safety. The City forced Plaintiffs to move to

the lot or face arrest for violating the anti-camping law. This placed Plaintiffs in

direct and imminent peril from the same harms the City recited as the reasons for the

Ordinance, including unprotected exposure to the elements. Wood v. Ostrander, 879

F.2d 583, 589 (9th Cir. 1989); Munger v. City of Glasgow Police Dep't, 227 F.3d

1082, 1086 (9th Cir. 2000); Jeremiah v. Sutter Cty., 2018 WL 1367541, at *4 (E.D.

Cal. Mar. 16, 2018). The City acted with deliberate indifference to the risk to

Plaintiffs as it knew of “(1) an unusually serious risk of harm, … (2) defendant [had]

actual knowledge of (or, at least, willful blindness to) that elevated risk, and (3) ...

fail[ed] to take obvious steps to address that known, serious risk.” L.W. v. Grubbs,

92 F.3d 894, 900 (9th Cir. 1996) (bracketed edits supplied).

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B. The Risk of Hyperthermia is Substantial

The conditions at the camp increase the risk of hyperthermia. Hyperthermia

occurs when the body is unable to dispel excess heat. With heat stroke, the body

temperature is more than 103°F to 104°F, depending on normal body temperature.

The Center for Disease Control (“CDC”),advises “[h]eat stress ranges from milder

conditions like heat rash and heat cramps, to the most common type, heat exhaustion.

The most serious heat-related illness is heat stroke, which can cause death or

permanent disability if appropriate and immediate emergency treatment is not

provided.” https://ephtracking.cdc.gov/show ClimateChangeExtremeHeat.action.

Heatstroke can result in serious mental impairments and, in more severe cases,

coma or death. It is often marked by nausea and vomiting, rapid breathing, and

headache. If heatstroke is suspected, immediate medical attention should be sought

and the person moved into shade or indoors and cooled with water and ice, none of

which is available at the camp. Id. The risk of heatstroke is greater for those with

disabilities and certain medical conditions. Some medications, including calcium

channel blockers for high blood pressure, heart medicine, tricyclic antidepressants

and common over-the-counter drugs such as antihistamines, diuretics and laxatives

add to the risk, ad does climbing a hill to a campsite without shade. Id.

In recent years, unseasonably high temperatures increase the risk of

hyperthermia. In July 2018, there were 25 days where the basic temperature was at

or above 80 degrees Fahrenheit in San Clemente and 3 days where it reached above

90 degrees.6 On one day in July 2018, it surpassed 100 degrees Fahrenheit, higher

than the previous record high of 96 degrees. Id. When the heat index is calculated

taking into account humidity, there were six days last July when the heat index

6https://www.timeanddate.com/weather/@5391791/historic?month=7&year=2018;heat index and Scheyer Decl. ¶¶2-5.

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surpassed 91 degrees.7 Again, there is no shade at the sewage plant lot. “Since heat

index values were devised for shady, light wind conditions, exposure to full sunshine

can increase heat index values by up to 15°F.” National Oceanic and Atmospheric

Administration (“NOAA”); https://www.weather.gov/safety/heat-index.

C. Shelter and Shade are Basic Human Needs

The right to shelter is a basic human need. See Helling v. McKinney, 509 U.S.

25, 32 (1993). Defendant moved Plaintiffs to a barren lot where tents are banned in

the heat of the day from 10 a.m. to 5 p.m. “Involuntary exposure to the elements” as

a result of affirmative government action is a recognized danger under Fourteenth

Amendment substantive due process analysis, Munger, 227 F.3d at 1089-90, because

it “‘creates or exposes an individual to a danger which he or she would not otherwise

have faced.’” Henry A. v. Willden, 678 F.3d 991, 1002 (9th Cir. 2012) (quoting

Kennedy v. Ridgefield City, 439 F.3d 1055, 1061 (9th Cir. 2006)). Bolter v. Jacques,

No. C 09-04587 CW (PR), 2010 U.S. Dist. LEXIS 61716, at *5 (N.D. Cal. 6/1/10).

The question is whether a state actor “left the person in a situation that was more

dangerous than the one in which they found him.” Kennedy, 439 F.3d at 1062

(internal quotation marks omitted) (quoting Munger, 227 F.3d at 1086). By ordering

unhoused persons to move to the barren campsite on threat of jail, Defendant put

Plaintiffs in a far more dangerous place than before the move. Prior to the new

ordinance, Plaintiffs erected tents during the day and in areas of the City with access

to other sources of shade and water.8 Mikulec Decl. ¶12. Now, with no running

water or shade, Plaintiffs are in a dangerous environment with greater risk of

heat-related illnesses. Nichols Decl. ¶16.

7 https://www.timeanddate.com/weather/@5391791/historic?month=7&year=2018;

heat index calculator available at https://www.weather.gov/epz/wxcalc_heatindex; Dec ofScheyer at ¶¶ 2-5.

8 The City allows tents and shade structures during the day at the beach, the Farmer’sMarket and for its own promotional activities. Mikulec Decl. ¶¶13-14; Ex. I,J,K.

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D. The State Recognizes the Threat of Heat Exposure

The concept that unnecessary prolonged exposure to the heat of the sun is

unlawful is common sense. Hope v. Pelzer, 536 U.S. 730, 734-35; id. at 738 (2002).

Pelzer held that officials acted with “deliberate indifference” to health or safety of an

inmate kept in the sun for seven hours, inferred “from the fact that the risk of harm is

obvious.” Id., citing Farmer v. Brennan, 511 U.S. 825, 842 (1994). While Hope

involves a prison case, the risk of harm to Plaintiffs is equally obvious from the ban

on tents for seven hours during the heat of the day at a barren, unshaded lot. Multiple

public warnings about the risks of dehydration, sunburn and heat illness are issued by

government agencies. Uniformly, they stress the risk of coma or death, the need for

shade, water, access to emergency care and strongly urge available cooling space.

1. The Center for Disease Control (“CDC”)

As Plaintiffs’ declarations evince, many unsheltered people in San Clemente are

older. Ponce Decl. ¶2; Gustafson Decl. ¶4; Nichols Decl. ¶2; Riley Decl. ¶2. This

puts them at greater risk of illness from exposure to extreme weather events, especially

heat.9 For example, the CDC cautions that older adults do not adapt as readily as

younger people to spikes in temperature and are far more likely to suffer from chronic

medical conditions that alter normal body responses to heat. These include conditions

such as heart disease, mental illness, and poor blood circulation for which they are

more likely prescribed medications that impair responding to changes in temperature.

See https://www.cdc.gov/disasters/extremeheat/older-adults-heat.html.

2. Occupational Health and Safety Act Guidelines (“OSHA”)

Federal and California OSHA agencies also warn that prolonged exposure to

heat and humidity without shade and water may result in serious illness and even

9 The CDC publishes an “Infographic” on Extreme Heat. It advises people, if possible,to “[s]tay in an air-conditioned area during the hottest hours of the day. ... Drink water often.Don't wait until you are thirsty. ... [and] Avoid unnecessary sun exposure.”https://ephtracking.cdc.gov/showClimateChangeExtremeHeat.action.

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death. OSHA requires preventive measures to avoid such events. See e.g.,

http://osha.gov/SLTC/heatillness/heat_index. In May 2015, Cal/OSHA published

guidance for employers on new requirements to implement Heat Illness Prevention

Regulation Amendments published in the California Code of Regulations, Title 8,

Section 3395. These cover a range of precautionary measures, including requiring

shade availability even before the temperature reaches 80 degrees Farenheit. Id. at p.4.

Significantly, the Regulations stresses that “[s]hade is not adequate when heat in the

area of shade defeats the purpose of the shade, which is to allow the body to cool.”

The regulations also require “access to potable drinking water” that is “fresh, pure,

[and] suitably cool[.]” Id. at p. 3. Cal/OSHA stresses that heat illness can progress

rapidly and is an emergency. Id. at p.6. These regulations underscore the need to

reach emergency medical services quickly when heat illness is suspected. Id.

3. The Orange County Public Notices on Heat

Orange County 2-1-1, an emergency services agency, republishes CDC

warnings for County residents on how to avoid heat-related illness in extreme heat.

See https://www.211oc.org/get-help/disaster-services/extreme-heat-resources.htm.

The Orange County Sheriff’s Department, the contract law enforcement agency for

San Clemente, also republishes heat warnings issued by the County Health

Department. www.ocsd.org/news/details?NewsID=1918&TargetID=88. OC 2-1-1

also provides a list of cooling centers in the County. In San Clemente, the library is

listed as a resource. It is located on Avenida Del Mar, with the Senior Center,

approximately 1.6 miles from the camp. Neither is easily reached from the campsite.

See www.city-data.com/orange-county-ca-restaurants/san-clemente-senior-center.htm.

VI. DEFENDANT VIOLATES BASIC DISABILITY PROTECTIONS

A. The Sewage Plant Lot Violates Disability Protections

1. The sewage plant camp is a “facility” under the ADA

The sewage plant camp is a “facility” under the ADA. In addition to physical

structures, a “facility” includes “all or any portion of sites, ... roads, walks,

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passageways, parking lots, or other real or personal property, including the site where

the building, property, structure, or equipment is located.” 28 C.F.R. § 35.104 (edit

supplied). It also includes outdoor facilities with no physical structures, even if it is

just “real property.” See, Fortyune v. City of Lomita, 766 F.3d 1098, 1102-03; 1102

fn 3 (9th Cir. 2014) (on-street parking); and, Kirola v. City and Cty. of S.F., 860 F.3d

1164, 1179 (9th Cir. 2017) (public rights-of-way, parks, and playgrounds).

2. The sewage plant lot is required to be accessible

“Any facility or part thereof constructed by a public entity must be designed and

constructed so as to be readily accessible to and usable by individuals with disabilities,

if the construction was commenced after January 26, 1992.” 28 C.F.R. § 35.151(a)(1).

Starting on or after March 15, 2012, any construction or alterations to a “facility” are

subject to the 2010 Standards. 28 C.F.R. § 35.151(c)(3). An “alteration” occurs when

a facility or part of a facility is “altered by, on behalf of, or for the use of a public

entity in a manner that affects or could affect the usability of the facility or part of the

facility.” 28 C.F.R. § 35.151(b)(1).

Analysis of the parallel provision in 28 C.F.R. §35.402 in Title III (public

accommodations) offers guidance on how this term should be applied under Title II.

28 C.F.R. §35.402 defines alteration as “a change to a place ... that affects or could

affect the usability of the ... facility or any part thereof[.]” Cf. Bassilios v. City of

Torrance, 166 F. Supp. 3d 1061, footnote 11 (C.D. Cal. 2015) (painting curb and

installing sign next to it is not an alteration since it did not affect usability of the curb

or street), with Kinney v. Yerusalim, 9 F.3d 1067, 1073-74 (3d Cir. 1993) (resurfacing

streets is an alteration as it “makes driving on and crossing streets easier and safer”).

Here, the City made graded and fenced the site, triggering disability guarantees.

However, no thought was given to whether the site met disability requirements, or if

it was even possible to make it accessible, which would require leveling the hillside.

3. The site disproportionately burdens people with disabilities Title II of the ADA provides that “no qualified individual with a disability shall,

by reason of such disability, be excluded from participation in or denied the benefits

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of the services, programs, or activities of a public entity, or be subject to

discrimination by any such entity.” 42 U.S.C. § 12132. It covers “‘anything a public

entity does.’” Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001), quoting

Yeskey v. Pa. Dep’t of Corr., 118 F.3d 168, 171 (3d Cir. 1997), aff’d, 524 U.S. 206

(1998). The camp is a “public program or services” under Title II.

a. The test for an ADA violation

To establish a violation of the ADA, “a plaintiff must show: (1) he is a

‘qualified individual with a disability’; (2) he was either excluded from participation

in or denied the benefits of a public entity’s services, programs or activities, or was

otherwise discriminated against by the public entity; and (3) such exclusion, denial of

benefits, or discrimination was by reason of his disability.” Weinreich v. Los Angeles

County Metropolitan Trans. Auth., 114 F.3d 976, 978 (9th Cir. 1997); see also Lovell

v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002); Rodde v. Bonta, 357 F.3d 988, 995

(9th Cir. 2004). The City’s Ordinances and the camp are “programs” and “activities”

subject to Title II, which includes “all of the operations of a qualifying local

government.” Bay Area Addiction Research and Treatment, Inc. v. City of Antioch,

179 F.3d 725, 731 (9th Cir. 1999).

b. Plaintiffs are “Qualified” Individuals with a Disability

A “[q]ualified individual with a disability” is a person “with a disability who,

with or without reasonable modifications to rules, policies or practices, removal of

architectural barriers, or the provision of auxiliary aides and services, meets the

essential eligibility requirements for the receipt of services or the participation in

programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). Many of

those forced to move to the lot under threat of arrest are “qualified individuals” with

a disability. See Brown Decl. ¶3; Gustafson Decl. ¶¶4-5; Nichols Decl. ¶15.

This action is brought on behalf of “[a]ll persons who are experiencing

homelessness in South County and are unable to access a shelter offering a reasonable

accommodation for their disabilities, if any.” FAC ¶73:l.2–9. The putative class

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members include all disabled individuals in San Clemente who are affected by the

Ordinance. See Nichols Decl. ¶15 (COPD, blood clots); Riley Decl. ¶¶1–2, 5 (physical

and visual disabilities; difficulty walking up the hill); Ponce Decl. ¶¶2–4 (cannot stand

for long periods of time or stay in direct sunlight); Brown Decl. ¶¶2–3 (legally blind);

Gustafson Decl. ¶¶ (hernias and knee surgery). As homeless people with disabilities,

Plaintiffs are eligible and qualified for services and programs operated by Defendant,

including but not limited to the sole site open to them.

The City is on notice of the need to provide reasonable accommodations

because the disabilities of many of the class members are obvious, including mobility

impairments. See also Brown Decl.¶ 4 (the security guard has to help Brown get in

the camping area because he is legally blind). Where the need for accommodation is

obvious, the public entity is on notice that one is required. See Duvall v. Cty. of

Kitsap, 260 F.3d 1124, 1139 (9th Cir.2001); see also Reese v. Barton Healthcare Sys.,

606 F. Supp. 2d 1254, 1261 (E.D. Cal. 2008) (shoulder injury that substantially limited

the plaintiff’s major life activities of lifting, sleeping, and reaching is sufficient to put

the defendant on notice of the disability).

4. A facially neutral policy may unduly burden disabled persons

Time and again, the Ninth Circuit has recognized that facially neutral policies

may violate the ADA when such policies unduly burden disabled persons. McGary v.

City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004). A facially neutral government

policy may be challenged on the ground that it has a disparate impact on people with

disabilities if it has the effect of denying meaningful access to public services. K.M.

ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1102 (9th Cir. 2013). See

also Dare v. California, 191 F.3d 1167, 1171-71 (9th Cir 1999) (court must decide

whether public entity discriminated against persons with disabilities by denying

“meaningful access” to services, programs or activities).

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A denial of “meaningful access” occurs when persons with disabilities are

disproportionately burdened due to their unique needs, or a public entity fails to

provide reasonable accommodations. The discriminatory acts need not be

unintentional. The ADA addresses both “intentional exclusion” and “discriminatory

effects” from the denial of “meaningful access” to services, programs or activities.10

Crowder v. Kttagawa, 81 F.3d 1480, 1484 (9th Cir. 1996), citing Alexander v. Choate,

469 U.S. 287, 302 (1985).

Crowder held that disabled individuals were disproportionately burdened by a

requirement that all carnivorous animals entering Hawaii be quarantined because it

impacted visually-impaired persons. 81 F.3d at 1485. In Rodde, the closure of a

County hospital that disproportionately served individuals with disabilities was held

to violate the ADA because, while the general population could find adequate services

at other facilities, people with disabilities could not. 357 F.3d at 998.

Both Crowder and Rodde involved government programs that provided benefits

to disabled and non-disabled persons. The disproportionate burden on those with

disabilities resulted in reduced benefits because the government did not consider the

needs of disabled persons. The same is true here. The disabilities of the Plaintiff class

create unique needs and make them especially dependent on shelter. See, e.g. Brown

Decl. ¶5 (needs to stay in familiar places to accommodate vision disability); Riley

Decl. ¶5 (difficulty walking up hill to the camping area). Defendant bars them from

camping in areas that can accommodate their disabilities and, instead, under threat of

arrest, mandates camping only on a lot the City long ago found unsuitable for human

habitation. As in Crowder and Rodde, Plaintiffs are denied meaningful access to

public services because the Ordinance and the lot impose disproportionate burdens.

10 A violation of the ADA is, per se, a violation of the California DisabledPersons Act (“DPA”). Cal. Civil Code §54(c). See also Hubbard v. SoBreck, 554F.3d 742, 745 (9th Cir. 2009). The DPA guarantees persons with disabilities “fulland equal access” to places of public accommodation. It applies to programs as well.See Hankins v. El Torito Restaurant, Inc., 63 Cal.App.4th 510, 523 (1998).

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5. The Disability Violations at the Sewage Plant Lot

a. The physical topography: To access the sewage plant lot,

a person has to walk up a significant hill. This presents a barrier for those with

mobility impairments. For class members who have a car and need it to assist with

their disability, there is no place to park that does not create mobility barriers for the

person as they try to reach the sewage plant lot. O’Malley Decl. ¶¶8,16; Ponce Decl.

¶7. For people with visual impairments, the sewage plant lot is especially difficult

because the entrance is not easily found and there are no “guide rails” to find the

toilets, the handwashing station, the assigned storage bin and the designated camping

location. Decl. of Brown at ¶¶4-5. Also, immediately at the entrance/exit to the camp,

the land dips several inches and there is a divot. Weitzman Decl. ¶¶8-9 and Exhibits

D-G. The dip and divot are unmarked and visually indistinguishable because of the

color of the ground. It is a peril for those with vision or mobility disabilities, and even

able-bodied individuals. Mikulec Decl. ¶16; Scheyer Decl. ¶13.

b. The lack of shade: Many disabled individuals are vulnerable

to extreme weather elements such as sun, heat, rain, and wind. Monica Ponce is one

and she cannot stay in direct sunlight due to her medical condition. Ponce Decl. ¶¶3-4.

Duane Nichols needs cooler temperatures because of the medication he takes. Nichols

Decl. ¶16. Without shade, or any protective structure at the camp, they are forced to

an environment that exacerbates their disability. See also, Mikulec Decl. ¶¶ 8,10. As

discussed above, the Operational Plan for the site bans tents during the heat of day,

when it is most critical to have shade. Before the Ordinance passed, the Plaintiffs

could use structures to protect themselves from sun, rain and wind. Riley Decl. ¶3,

Ponce Decl. ¶¶3–4. This is critical since, even during milder weather, sustained

exposure to the sun raises the effective temperature by 15 degrees Farenheit.11 So, a

bearable 75 degrees Farenheit becomes 90 degrees for a person who must sit in the

baking sun without protection.

11 https://www.osha.gov/SLTC/heatillness/heat_index/pdfs/all_in_one.pdf

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c. The lack of water: As it gets hotter, Plaintiffs are at risk of

dehydration but there is no source of potable water at the camp. Mikulec Decl. ¶9;

Nichols Decl. ¶9. Plaintiffs with mobility or vision disabilities cannot readily travel

elsewhere for drinking water. For example, Mr. Nichols, whose disabilities require use

of a tricycle for mobility, must travel down and up the hill to North Beach to access

drinking water. Nichols Decl. ¶9. In multiple ways, the needs for access to water has

been incorporated into federal law. For example, 28 C.F.R. § 35.151(b)(4) requires

drinking fountains be readily accessible to and usable by individuals with disabilities.

Similarly, in the prison context, courts have emphasized that “[a]dequate water and

sanitation are basic human needs.” See e.g., West v. Rahr, 2009 U.S. Dist. LEXIS

87818, *12, Case No. C08-1619-TSZ-BAT (W.D. WA 2009).

d. The lack of adequate sanitation: The portable toilets on site

are a health hazard because they are not serviced and were full of human waste just a

few days after the forced relocation to the sewage plant lot. Mikulec Decl. ¶ 9, Nichols

Decl. ¶ 8. This violates the minimal standards set in many circumstances under federal

law. For example, the HUD regulations for emergency shelters require, at minimum,

that “[e]ach program participant in the shelter must have access to sanitary facilities

that are in proper operating condition, are private, and are adequate for personal

cleanliness and the disposal of human waste.” 24 C.F.R. § 576.403(b)(6). Similarly,

28 C.F.R. 35.133(a) requires a public entity to maintain the “facilities” in operable

working condition for the use of disabled individuals.12 See Clark v. Cal., 739 F.

Supp. 2d 1168, 1229–1230 (N.D. Cal. 2010) (right to sanitary bathrooms for disabled

individuals). Sanitation is among the basic necessities of life. See Farmer, 511 U.S.

at 832. When Mr. Brown asked the onsite security guard to call for service of the

12 Rain and water run-off from powerwashing the toilets flows downhill behindthe camp to the Segunda Deshecha Creek. Scheyer Decl. ¶¶12,14 and Ex. D and E. The creek is listed as impaired for five pollutants on California’s 303(d) list,including Indicator Bacteria (enterococci and fecal coliform). About 0.3 milesdownstream, it empties into the ocean after crossing several local beaches that aresimilarly impaired for Indicator Bacteria. See https://www.waterboards.ca.gov.

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porta-potties because they were overflowing and presented a major impediment for

Brown because of his vision disability, the security guard said he his phone did not

work so he could not call. Brown Decl. ¶¶6-7. The portable toilets are also

inaccessible for people with a vision disability. Id. ¶4.

e. The lack of disability accessible parking: The sewage

plant lot is located on a piece of property that has no street parking on either side.

There is no area for vehicle parking at the camping area, making access to the area

more isolated. Mikulec Decl. ¶9; Nichols Decl. ¶12. Disabled individuals such as Ms.

Ponce, who need their car for mobility, would have to park at the parking lot across

Avenida Pico and walk a long distance to the nearest place to cross safely and then

walk up the hill to the only entrance to the fenced sewage plant lot.13 Mikulec Decl.

¶9. See Ex. A. No matter which direction they go, ultimately they will have to go up

an incline to reach the entrance to the site.

The ADA requires local governments to maintain accessible on-street public

parking, even absent specific regulations to that effect. See Fortyune, 766 F.3d 1098.

See also Bassilios, 166 F. Supp. 3d at 1076–77. In Bassilios, the Court held that the

defendant City discriminated against the plaintiff by denying her request for a

disabled-only parking space in front of her apartment. The plaintiff was forced to park

farther away and walk to her apartment along unleveled and unpaved terrain, all of

which was difficult and hazardous in light of her disability. There is no way that the

City can comply with this ADA requirement at this site because there is no parking on

the streets on either side of the fenced lot.

13The lack of accessible parking also makes it impractical for people to bringcritical donations to the site. There is no food access at the sewage plant lot. ThePlaintiffs, many who have no income, depend upon donations. Volunteers whopreviously delivered fresh fruit and food to plaintiffs when they were at North Beachhave done far less at the new site because of the access difficulty. Nichols Decl. ¶12.

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f. The impediments to medical continuity: The camping area

also poses difficulty for the disabled individuals to access medical services and their

prescribed medications. Nichols Decl. ¶ 5; Mikulec Decl. ¶ 16. In Hernandez v. Cty.

of Monterey, 110 F. Supp. 3d 929, 942-59 (N.D. Cal. 2015), the Court granted a

preliminary injunction under both the ADA and the Rehabilitation Act against prison

officials when they failed to provide inmates with medication continuity. The

isolation of this lot, with no access to electricity, makes it difficult for those forced to

be there to maintain their medical treatments. The lack of access to electricity

exacerbates this situation. Plaintiffs have no place to store medications or other

supplies, and no way to charge their cell phones to maintain contact with their medical

providers and case workers, or to call for emergency services when needed. Mikulec

Decl. ¶ 6; Brown Decl. ¶7; see also Rodde v. Bonta, 357 F. 3d 988, 998 (9th Cir. 2004)

(affirming preliminary injunction against hospital closure that would have reduced or

eliminated access for disabled Medi-Cal patients but not other Medi-Cal recipients).

In an emergency, the security guard is instructed to call a non-emergency police

voicemail line and leave a voicemail. Mikulec Decl. ¶¶ 16, 22.

g. Food scarcity: Plaintiffs are prohibited from cooking at the

sewage plant lot. Nichols Decl. ¶¶ 9–13. In order to cook, they must travel to the park

across the street. Nichols Decl. ¶ 9, Mikulec Decl. ¶ 20. Given the distance to the

nearest crosswalk, this requires a trek of .35 miles each way, including a challenging

and unavoidable uphill climb, with an elevation of 26 feet, to get into the park and to

get back to the camp site. Scheyer Decl. ¶ 10 and Ex. A. This is especially hard for

Plaintiffs with mobility or vision disabilities, who must now try to cross a busy

roadway to get to a place where they can prepare food. Nichols Decl. ¶ 15.

h. The lack of qualified personnel on site: The City has hired

security guards to be present on the site 24 hours a day. The individuals hired are not

trained adequately, if at all, to work with the special needs of individuals with

disabilities, including training on trauma-informed care and recognizing and

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responding to various disability conditions. O’Malley Decl. ¶¶ 9, 12-15a. See Clark

v. Cal., 739 F. Supp. 2d 1168, 1229–1230 (N.D. Cal. 2010) (prison discriminates

against inmates with developmental disabilities when staff training regarding such

disabilities is insufficient). See also, P.P. v. Compton Unified Sch. Dist., 135 F. Supp.

3d 1098, 1113-16 (C.D. Cal. 2015) (denying school district’s motion to dismiss where

students alleged that the district failed to provide trauma-sensitive accommodation and

thereby denied plaintiffs’ meaningful access to public education based on their

trauma-induced disabilities). By creating unwritten policy, the security guards violate

Plaintiffs’ rights as disabled individuals because compliance with municipal code

enforcement is itself a benefit under Title II. See McGary, 386 F.3d at 1269.

B. The City Denies Meaningful Access By Failing to ProvideReasonable Accommodations

Unlawful discrimination occurs when a public entity fails to make reasonable

modifications to a program to accommodate persons with disabilities. 28 C.F.R. §

35.130(b)(7).14 “The purpose of the ADA’s reasonable accommodation requirement

is to guard against the facade of ‘equal treatment’ when particular accommodations

are necessary to level the playing field.” McGary v. City of Portland, 386 F.3d 1259,

1267 (9th Cir. 2004). “A public entity shall make reasonable modifications in

policies, practices, or procedures when ... necessary to avoid discrimination on the

basis of disability, unless [it] can demonstrate that making the modifications would

fundamentally alter the nature of the service, program or activity.” 28 C.F.R. §

35.130(b)(7) (edits supplied). By itself, failure to provide reasonable accommodations

is a denial of meaningful access. See Alexander, 469 U.S. at 301. There need not be

a “comparison class” that was treated differently. McGary, 386 F.3d at 1266, citing

14 “Reasonable modifications” and “reasonable accommodations” are the same. Wong v. Regents of Univ. Of Cal., 192 F.3d 807, 816 n.26 (9th Cir. 1999).

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Olmstead v. Zimring, 527 U.S. 581, 598 (1999).15

C. There is No Emergency Plans for Disabled Persons at the Site

Defendant moved Plaintiffs to a geologically unsafe lot, with only one narrow

gate to enter and exit. The two larger gates are chained and padlocked. Mikulec Decl.

¶ 15. Disabled individuals need adequate exits and trained stuff to help them evacuate

in the case of an emergency. In addition to physical disabilities, two individuals at the

campsite are legally blind. They cannot navigate the campsite in a non-emergency

environment. Brown Decl. ¶5. They cannot figure out the location of the toilets

across the open space. Id. ¶ 4. They trip over the uneven ground at the single

unlocked gate to enter and exit. Mikulec Decl. ¶ 16; Brown Decl. ¶4.

The danger of a single exit is compounded by the lack of training for the onsite

security guard on how to meet the needs of disabled people. Brown Decl. ¶ 7. See

California Found. for Indep. Living Centers v. Cty. of Sacramento, 142 F. Supp. 3d

1035, 1062–63 (E.D. Cal. 2015) (emergency evacuation plan disproportionately

burdened disabled individuals by requiring evacuation through paths inaccessible

without aid, absent evidence staff were trained to assist in evacuating mobility-

impaired persons). The City has no plan to deal with the needs of disabled persons in

an emergency at this site. Natural disasters are unpredictable but part of the history of

this site, which is why the animal shelter was not rebuilt here after a landslide

damaged it. If the shelter could not survive this geological event, a tent will not.

An “emergency preparedness program” requires planning to respond to, and

mitigate the effects of, an emergency. Defendant has done nothing to identify needs

and resources in case of an emergency, a plan to assist people to move to shelters or

15 McGary rejected the claim that a request for extra time to comply with anuisance abatement law did not show disability discrimination where there was noshowing that a non-disabled person got extra time to comply. Here, too, even if somepeople do not need modification, the City must allow reasonable accommodations toothers with disabilities and, if it cannot, close the camp.

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another evacuation point, a plan to organize mass evacuation of disabled individuals

from the area, and a provision for temporary housing until people can return to a safe

location. The failure to consider the safety of an already vulnerable population is

especially reckless as this site is geologically precarious.

VII. PLAINTIFFS ARE ENTITLED TO EMERGENCY RELIEF

Even before a class has certified, an injunction may extend beyond the named

plaintiffs “if such breadth is necessary to give prevailing parties the relief to which

they are entitled.” Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486,

1501–02 (9th Cir. 1996) (internal citation and emphasis omitted).

A. The Standard for a Temporary Restraining Order

The standard for a temporary restraining order is the same as for a preliminary

injunction. Stuhlbarg International Sales Co. v. John D. Brush Co., 240 F.3d 852, 839

n.7 (9th Cir. 2001). The harm an injunction might cause a defendant is weighed

against the injury to a plaintiff. Justin v. City of Los Angeles, Case No. CV-0012352

LGB - AIJx, 2000 WL 1808426 (CD CA 2002), at *11 (citing Armstrong v. Mazurek,

94 F.3d 566, 568 (9th Cir. 1996)).

Four factors are applied: “(1) whether the plaintiff has shown a likelihood of

success on the merits; (2) whether the plaintiff has shown a likelihood of irreparable

harm in the absence of preliminary relief; (3) whether the balance of equities tips in

the plaintiff’s favor; and (4) whether preliminary relief is in the public interest.” Vivid

Entm’t, LLC v. Fielding, 774 F.3d 566, 577 (9th Cir. 2014). Plaintiffs need only show

that they are “likely” to prevail. See Winter v. Natural Resources Defense Council,

Inc., 555 U.S. 7, 20 (2008); Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011).

Alternatively, Plaintiffs must show “serious questions going to the merits[,]”

that the “balance of hardships tips sharply in [their] favor, and the other two Winter

factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291

(9th Cir. 2013) (internal quotation marks omitted); see also Alliance for the Wild

Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011) (same). A“serious question”

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is one with “a fair chance of success on the merits.” Sierra On-Line, Inc. v. Phoenix

Software, Inc., 739 F.2d 1415, 1421 (9th Cir. 1984). All four factors support an

injunction and there is more than a “fair chance” to succeed on the merits.

B. Plaintiffs Have Shown A Likelihood of Success on the Merits

Plaintiffs have shown a likelihood of prevailing. They have shown that the sole

location where camping is permitted constitutes a danger under the Fourteenth

Amendment and violates fundamental disability protections.

C. Plaintiffs Have Shown They Will Suffer Irreparable Harm

Absent the Court’s intervention, Plaintiffs will suffer irreparable harm because

Defendant will continue to violate their rights. “An alleged constitutional infringement

will often alone constitute irreparable harm.” Monterey Mech. Co. v. Wilson, 125 F.3d

702, 715 (9th Cir. 1997) (internal citation omitted). “Unlike monetary injuries,

constitutional violations cannot be adequately remedied through damages and

therefore generally constitute irreparable harm.” Nelson v. Nat’l Aeronautics & Space

Admin., 530 F.3d 865, 882 (9th Cir. 2008), rv’d on other grounds and remanded, 562

U.S. 134 (2011). Plaintiffs have shown actual and threatened injury. They “need only

establish that there is a reasonable expectation that his conduct will recur, triggering

the alleged harm; he need not show that such recurrence is probable.” Honig v. Doe,

484 U.S. 305, 318 & n.6 (1988). See also, Susan B. Anthony List v. Driehaus, 573

U.S. 149, 158 (2014), (citing Steffel v. Thompson, 415 U.S. 452, 459 (1974)).

No countervailing interest of the City outweighs the dire impact on Plaintiffs,

who are homeless, destitute and suffer from psychological, medical and physical

disabilities. The harm to Plaintiffs is not merely speculative and is likely to continue

absent the requested injunction. Alliance for the Wild Rockies, 632 F.3d at 1135.

D. The Balance of Equities Tips Sharply in Plaintiffs’ Favor

Where the likelihood of success on the merits and irreparable harm exist, “the

balance of equities and public interest tip in favor of Plaintiffs.” Los Padres

Forestwatch v. U.S. Forest Service, 776 F. Supp. 2d 1042, 1052 (N.D. Cal. 2011). The

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balance depends on the potential harm to each side. Allen v. City of Lake, 71 F. Supp.

3d 1044, 1056–57 (ND Ca. 2014). The more lasting Plaintiffs’ harm if relief is not

granted and the more limited Defendant’s harm if it is, the greater the balance tips

toward Plaintiffs. League of Wilderness Defenders/Blue Mountains Biodiversity Proj.

v. Connaughton, 752 F.3d 755, 765 (9th Cir. 2014). “[P]rotection of constitutional

rights is a strong equitable argument” for the injunction.” Id.

E. A Temporary Restraining Order Is in the Public Interest

The fourth factor looks at how the grant or denial of an injunction may impact

non-parties. Connaughton, 752 F.3d at 766. This also tips in Plaintiffs’ favor as “[i]t

is always in the public’s interest to enjoin actions that violate an individual’s

constitutional rights, all the more so when this is being done in the name of their own

government.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012). Without

emergency relief, Plaintiffs face the untenable choice of jail or the camp. They are

confined to a site that puts their health and safety at serious imminent risk.

CONCLUSION

For all of the foregoing reasons, the requested relief should be granted because

of the imminent threat to the health and safety of Plaintiffs.

Dated: June 30, 2019 Respectfully submitted,

LAW OFFICE OF CAROL A. SOBELELDER LAW & DISABILITYRIGHTS CENTERSCHONBRUN, SEPLOW, HARRIS & HOFFMAN

/s/ Carol A. Sobel By: CAROL A. SOBELAttorneys for Plaintiffs

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EXHIBIT 1


EXHIBIT 2


EXHIBIT 3


EXHIBIT 4


CSC000315

These minutes were.:amende_d and appro.ved atthe Planning Commission meeting of 05-21-14.

MINUTES d.F THE ADJOURNED .REGULAR MEETING OF THE CITY OF SAN. CLEMENTE

PLANNING COMMISSION May 7, 2014@ 6:00. p.m. City Council Chambers 100 Avenida.Presidio

San Clemente, CA

1. CALL TO ORDER

Chair Darden called the Reg·ular Meeting of the Planning Commission of the City of San Clemente to order at 6:.07 p.m.

2. PLEDGE OF ALLEGIANCE

Commissioner Eggleston led the Pledge of Allegiance.

3. ROLL CALL

Commissioners Present: Wayne Eggleston, Michael Kaupp, Jim Ruehlin, and Kathleen Ward; Chair pro tern Barton Crandell, Vice Chair Donald Brown and Cha'ir Julia Darden

Commissioners Absent: None

Staff Present: Jim Pechous, City Pl~nner Jeff Hook, Principal Planner Amber Gregg, Associate Planner Denise Obrero, Housing Progriams Planner Zachary Ponsen, Senior Civil E:ngineer AJit Thind, Assistant City Attorney Eileen White, Recording Secretary

4. · SPECIAL ORDERS OF BUSINESS - None

5. MINUTES

A. Minutes from the Planning Commission_ Regular Study Session of April 1·6, 2014

IT WAS MOVED BY VICE CHAIR BROWN, SECONDED BY COMMISSIONER RUEHLIN, AND UNANIMOUSLY CARRIED to receive and file the minutes of the Regular Study Session of April 16, 2014, as submitted by staff.


CSC000316

M.inutes of.Adjourned Regular.Commission Meeting of May 7, 2014 Page2

B. Minutes from .>the Planning Commission Regular Meeting of April 16,·r2014

IT WAS MOVED BY COMMISSIONER RUEHLIN, SECONDED BY COMMISSIONER KAUPP, AND UNANIMOUSLY CARRIED to receive and file the minutes of the Regular Meeting of April 16, 2014, as submitted by staff.

6. ORAL AND WRITTEN COMMUNICATION - None

7. CONSENT CALEND~R- None

8. PUBLIC HEARING

A. SB 2 Emergency She.lter Ordinance (Obrero)

The Planning Commission will consider alternative strategies for complying with :a State law, "SB 2" the Emergency Shelter Act. This is a continued it~m from the March 19, 2014 Planning Commission meeting. At this. meetitfg, 't_he Commission is expected to review SB 2 requirements, locational criteria for identifying areas or zones where shelters could be allowed, possible development and operation standards, and alternative strategies for meeting SB 2.

SB 2 requires that cities allow homeless shelters py right in at least one land use zene. The ordinance does noLrequire cities to build or provide funding for such uses. It allows cities to esfablish standards to regulate emergency shelters' location, size, parking, and proximity to other

· emergency shelters, length of stay, lighting, security and management. The City cmmpleted an evaluation of possible sites and zones to meet SB 2 requirements and', based on that evaluation, has. identified six sites and two zones that may meet SB 2 criteria. The Planning Commission will also consider the possibility of allowing churches to provide seasonal or year around .shelter for homeless persons to help meet SB 2 requirements. Frequently asked questions about SB 2 and a map showing possible sites or areas being considered are available on the City'swebsite at www.san-clemente.org/SB2Homelessshelter.

Chair Darden welc.omed all. attendees to the meeting and explained that the purpose of tonight's meeting is to review potential sites for a homeless shelter and provide input to staff. Under Senate Bill 2 (SB 2) the City is required to identify a land use zone in which homeless shelters will. be allewed by right. She clarified thaf at this time there are no applications submitted to the City for an emergency shelter or ~plans to construct a shelter in the foreseeable future. In addition, under SB 2, the City is not required to actually build an emergency shelter; just identify a zone that would allow its existence by right. Staff will make a presentation followed by Commission question and answer period. The public will theh have an


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Minutes of Adjourned Regular Commission Meeting of May 7, 2014 Page 3

opportunity to speak. She requested that those present refrain from clappir::ig, :speaking out of turn, or disrupting the. meeting in any way in orc:Jer to show respect for all speakers and allow the meeting to .continue in orderly fashibri. She encouraged members of the public to indicate agreemer:lt With previous speakers rather thc:fn, come lJP to the podium and repeat tb.e same comments. In addition, she requested the public respect staff for the hours .spent seeking solution.s and. preparing reports for the public, and n.oted that the three-minute time limit for individual public testimony wo.uld,be strictly enforced in fairness te> all. She advised that the Planning Commis.sion's final recommendation will go to City Council for their consideration, and asked for the public's cooperation in finding a solution that will meet the needs ef the homeless as well as the community.

Commissioner Kaupp established from the Commission that at a prior meeting, there was no consensus of Gommissioner support for including

- the former K-Ma'rt/Big Lots Shopping Center as a potential SB 2 location. He asked staff tp 1tH=ike a brief presentation on that study site to determine if it were possible to eliminate the site from consideration. In this way, property owner~ p·resent for that specific site can be assured of the Commission's intention and not have to remain in Council Chambers for the entire meeting.

Ajit Thind, Assistant City Attorney, sugge'sted the Commission consider bifurcating the K-mart/Big Lots Shopping Center segment from the staff report, hear the staff report on that issue as well. as public testimony, and take action on that study site separately from the other SB 2 study sites and areas.

IT WAS MOVEr.> BY VICE CHAl.R BROWN, SECONDED BY COMMISSIONER KAUPP, AND UNANIMOUSLY CARRIED TO DIRECT STAFF TO BIFURCATE CONSIDERATION OF THE K-MART/BIG LOTS SHOPPING CENTER AS POTENTIAL ZONE FOR EMERGENCY HOMELESS SHELTER FROM THE STAFF REPORT.

K-Mart/Big Lots Shopping Center Consideration

Jim Pechous, City Planner, reviewed the staff r·eport with regard to potential inclusion of the K-Mart/Big Lots Shopping Center as a zone where emergency homeless shelters would be allowed by right. While discussing the State criteria for potential sites, he noted that the KMart/Big Lots site is adjacent to residential zones; ?dvised the site does not meet the City's primary goal of separating potential shelter locations from residential zones; recommended the Commission consider removing this location from consic:Jeration.

Chair Darden opened the public hearing.


CSC000318


Norma Rhue, Capistrano Beach resident,. supported welcoming a homeless shelter in the community that would ·provide shelter for adults, singfe ,parents, and families, as well as providing Tehabilitation, job skills instruction, medical assistance, and giving h0meless people back their dignity. Although a homeless shelter would be awonderful addition to the community, she expressed concern about this site as it is located near at least three liquor stores.

Marika Segal, resident, stated that she recognizes that there is a need for a homeless sbelfer and would have no objection to a homeless shelter at the K-Mart/Big Lots Shopping Center.

Bill Sandre, Los Angeles, representing the K-Mart/Big Lots Shopping Center property owner, opposed rezorJiqg/applying an overlay to the property to allow emergency homeles.s shelter by right, noting that the owners' vested rights in the property may be cmrnpromised, including the ability to attract/retain existing tenants and/or the imposition of restrictions, if the property is. rezoned or an overlay is applied. He advised that the property owner is currently in negotiations with major national retailers to subdivide the site for new uses.

Naomi Segal, resident, commented that the existing K-Mart/Big Lots Shopping Center ,site has deteriorated since jts last tenants moved out arid is not cUtrerjtly an asset to the City. She acknowledged adjacent residents' concern$ regarding locating a homeless shelter adjacent to their homes", but co.mmented that the community . as a whole has a responsibility to, address the homeless living in their city. As a mother of sons with drug dependency, she understands the frustration of finding help/shelter/rehabilitation services nearby. She tried. for years to get her sons into a nearby .homeless shelter in .Laguna Beach, and was repeatedly told that the center was full of Laguna Beach residents and had no room for others from outside Laguna Beach. She occasionally called the police to arrest her sons to remove them from their drug sources and force them into rehab while in jail. The homeless and drug dealers are everywhere in San Clemente; which puts a stress on the police department and the City's taxpayers . .She implored the commL1nity to do the Jightthing for its homeless population and address them lovingly and compassionately for the sake of all.

Chair Darden closed the public hearing.

IT WAS MOVED BY COMMISSIONER KAUPP, SECONDED BY VICE CHAIR BROWN, AND UNANIMOUSLY CARRIED TO REMOVE THE KMART/BIG LOTS SHOPPING CENTER SITE FROM DELIBERATIONS.

[DECISION FINAL SUBJECT TO APPEAL OR CALL UP BY COUNCIL]


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Chair Darden suspended the meeting at thistime to allow rn.er:nbers of the public attending the meeting for that singular issue to exit the meeting room if they desired. She re-adjourned the meeting approximately 15 · minutes afterwards.

SB 2 Emergency Shelter Ordinance

Chair Darden described the format of the ,remainder of the meeting. The Commission will hear information presented by the various staff members, pose questions following each segmerit of the staff report, hear public testimony, and then take straw votes for each of the potential options identified by staff. The agenda item will be .co.r:1tinued to a date certain, at which time· staff will present the reyised plans for Planning Commission action, which will be a recommendation to City Council.

Jim Pechous, City Planner, outlined the staff report; introduced staff members doing presentations; introduced specialists also present to provide information. Staff recommended the Commission hear the presentations, take public testimony, discuss options, and take straw votes for each of the alternatives presented.

Denise Obrero, Hpusing Programs Plant1er, narrated portions of the PowerPoint Presentation, entitled, "SB 2· Emergency Shelter Ordinance, dated May 7, 2014:" summarized the progress of .the proposal to date; described Senate Bill 2 (SB 2) which sets fo.rth requirements for all cities and cour:ities to designate at least one zone where emergency shelters are allowed by right; summarized the Co.uncil Subcommittee formation, process, and direction; described the purpose of tonight's meeting; discussed how .adjacent communities have addressed SB 2 and listed the consequen·ces the City would face if it does not comply with SB 2.

Amber Gregg, Associate Planner, described each. of the sites/areas being reviewed for p'otential sites, and reviewed how each site met State criteria, including ptJbllc transport within % mile, proximity to services, prescribed distance away 'from· residential zones, proximity to a job center, and freedom from environmental constraints.

J.eff Hook, Principal Planner, reviewed the process used to estimate the number of r:e.sidents living in San Clemente; recommended the Commission use the number established using data supplied by San Clemente Police Services, local homeless service·s providers, and County social services providers, which is an estimate of between 65 to 70 homeless persons. He clarified that SB 2 addresses the need for "emergency .shelter for homeless persons" and as such, is intended to allow an overnight homeless shelter by right in at least one specific zone.

Jim Pechous, City Planner, reviewed the alternative strategies to meet SB 2 requirements as identified by staff. He described the specific tools that


CSC000320

Minutes of Adjourned .Regular Commission Meeting of May 7, 2014 Page6

can :l:>e ,osed to accomplish this goal, and listed 3 alJernative solutions that would meet the required goals for th·e.ir consideJ:8,tiO,n. In addition, he encoqra·g~d th.e Commi~sion to use the lnforrnati0n contained in the staff report, review the models adopted by nearby cities, and study the potential sites _identified in the staff report to develop a solution unique to San Clemente .. He recommended the Commission 1) consider the Draft SB 2 DeveJopm.ent Standards and provide direction on Draft Standard 17.08.11 O (0) regarding the number 0f beds per facility, 2) provide direction to staff [egarding SB 2 sites or zenes where homeless shelters shall be allowed by right, subject to development standards, and 3) Continue this item .to a· specific Planning Commission meeting date vvith direction to staff to prepare a draft Zon·ing Ordinance and Map Amendment to meet SB 2 requirements. In their deliberations, he advised the Comrnissi0n to consider from a rea_sbnc;\ble point of view whether the amount of propert~l:in the form of zoned/overlaici areas designated by the city for establfsh_ment of shelters could co:nce'ivably meet the emergency shelter needs for tlie estimated 65 to 70 hot:neles$ persons in the City. The "reaso11aple r:nan standard" will be the standard by which the SB 2 plans in the HoµSirig Element will be reviewed. Once the· Housing Element has been revised to .meet SB 2, the City's new General Plan will be deemed compiete. and legally adequate.

In response to comments from the Commissioners regarding the excellent GlS maps· that clearly show location .criteria for each site, Mr. Pechous noted that staff planner Christopher Wright had prepared the maps for Commissien review.

In response to ~uestions from the Commissioners, various staff advised that approximately half of the Saddleback Church property is located within 500 feet of residential homes, with the other h'alf of the property outside that boundciry; provided estimation that 10,000 square foot of property Wol.ilo .be needed to accomrtlodale a two-story emergency homeless shelter large enough to accommodate 65 to 70 homeless persons; assured. t~e Commissioners th.at:residents/businesses in the Pier One Shopping Plaza, Talaga, and Calle de lhdustrias ;areas were properly .notified about tonight's meeting; advised that With regard to churches, maximum number of bed limits can be set on a case by case basis.

Deputy Joel Bull, Orange County Sheriff's Department, advised that as much security as possible should be . installed on site; noted calls/disturbances may be more common in the areas a·ro.und any shelter, :as the presence of homeless people traveling to and from the shelter in nearby businesses may generate calls.

Karen Williams, OC Homeless Partnership, explained how the 2013 "point in time" homeless persons count was taken, including regulations that must be followed in order for the County to continue to receive HUD · money to fund programs for the homeless. She described the process to


CSC000321

Minutes of Adjourned Regul~rCommission Meeting of May 7, 2014 Page 7

physically countthe homeless, noted the next c.ounlwill be on January 24, 2015, and a_dvised that the homeless people· hired to help with the last ceunt were excellent and dependable workers that were delighted when they were given references following termination of their employment with the County. For the upcoming count, the Gounty hepes to double the amount of volunteers to go out there, and run a parallel job training program at th·e same time. With the County as a whole, the focus is now on rapid re-housing, a program intended to help homeless persons back on their foet. At .emergency shel~ers in FuJle_rton and Santa Ana, single homeless adoffs are housed in the emergency shelters, and families are directed to churches. She noted extensive arid thorough searches must be done in order to ensure an accurate cour:lf; the count should be performed at night to reflect an accurate number of homeless without a place to sleep. Heat sensing equipment may also be used for the next count to increase .odds that none are missed; results of the next count should be available in May or June . of next year. Regulations and methodologies regarding the count must adhere to Federal rules. In response. to· questions, she noted that an iofusiorci of Federal money in 2009 for homeless veterans, plus imprevements in the local economy have improved the. homeless situation; advised no dramatic increases or decreases have been. seen based on seasonality; advised original documents or information from the last count are not available, and would have to rem_ain confidential even if they were. During the last count, she speculated that pockets of homeless were counted at Trestles, the State park, and the Beach Trail. The homeless at Doheney State Park were not included in the Sal1 Clemente counts as it i$ part of Dana Point. It is important to establish ·a county-wide cout1t bf beqs c:md central information point to ensure that homeless advocates/w.orkers are aware of where empty beds are located. Within the County there. are many programs for mothers and families with children, but not so many for individual adults. Because the ra~id re-housing program has .shown a significant success rate, the County is: considering ways to expand that program in lieu of the more tradition·a1 2-year program.

In response to questions from the Commissioners, Deputy Bull noted there was a very small number of homeless persons in Sari Clemente with small children;· stated he was unaware if homeless people that must be · registered as sex offenders were unable to live in the San Clemente area due to Megan's Law restrictions. He is u171able to speculate as to just what percentage of hor;rieless persons would p[E§fer to stay where they are rather than stay in an emergency shelter af night. Those. abusing drugs or alcohol are aware they will not be allowed in the shelter·, and semetimes choese not to use. shelters or take advantage of other available homeless resources. With regard to security for a homeless shelter, he recommended fencing, lighting, security staff, and surveillance video cameras. He speculated that there may be more homeless in the City during the summer months because they come here to vacation and enjoy


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the beaches and parks. Consequently, they are more visible 'in the parks and beaches and their presence increases call vol'ume te Police Services.

Commissioner VVard asked Deputy Bull, 'Did you encounter people that were horneless that you deemed to be new to our town that told you that they were here because of IHope services? Did you ,ever encounter that, (and how often)?' Deputy Bull responded, 'Yes, wh¢n IHope came to town, we did see an influx. I don't have thos·e he1ra numbers, but in polling my feilow,deputies and being approached bY flJem, they told me there is a new one in town, here is his name, date of bjtth, and he states he was frnm another location outside the city and he got word of IHope and he wanted to utilize 'these services that they offered. I've come in contact personally with people who came to our city specifically because they heard of IHope and were also utilizing their addre.ss to receive mail.'

In response to qµesJions from the Commissioners, Jeff Hook, Principal Planner, noted tt;;at as 'the Commission agreed' at its March 19th meeting, the draft SB 2 Development Standards require one parking space for every five hornel~ss clients. He added that although this is on the high end of homeless shelter parking requirements among OC cities, he believes it is, necessary as there are many homeless that are still in possession of their cars. He advised that Commissioners could set a different stanc:Jard if they so desire; noted fhat although SB 2 requires the shelter to have a management plan, he doubted that requiring homeless persons to arrive and depart only by shuttle (as part of the management plan) would meet SB 2 requirements. ,

Ajit Thind, Assistant City Attorney, advised that SB 2 states that the City can only apply the sarne standards to homeless shelters as the ones that are required by other uses in the same zone. He cautioned against establ_ishing standards or requirements for homeless shelters that are not applied to other uses ,in the same zone.

Jeff H.ook, Principal Planner, explained that SB 2 requires cities to zone sufficient iand to fl'.1eet their estimated homeless need; that is, the total estimated average number of unshelterec:I homeless persons residing there. Each jurisdiction must show in its housing element that it has z0ned ·land to allow the development of an emergency shelter t>y right in an amount to meet or exceed the number of homeless living 'there. Cities can accomplish this several ways: they can centralize home.less services by allewing up to the estimated total number of homeless in one shelter,, or disperse homeless services by setting a lower maximum number of beds per sh·e1ter. If and when the City allows enouglJ shelter capacity to be built by right to meet its estimated ne·ed, any further homeless shelter facilities may be subject to discretionary approval (i,e. conditional use permits).


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Minutes of Adjourned Regul?r Commission Meeting of May 7, 2014 Page 9

Jim Pechous, City Planner, advised it would be prudent for the City to overestimate the number of homeless rather th.an underestimate it. The City shouJc;j have more zoned capacity than tbe 'rT)ihimum ,re.quired in order to comply With State law and to be able to a.ccomn;iodate additional shelter beds if need.ed,, The number of beds required may fluctuate annually, as indicated, 'in part, by the County's "point in time'' count.

Chair Darden opened the public hearing.

Public Testimony:

Letters from three residents opposed to rezoning K-Mart/Big Lots Shopping Center to allow an emergency homeless shelter; letter from resident urging the Commission tc:> follow reco,mmendations in the staff report.

Bob Adams, pr13.sident of the Rancho San Clemente Business Park (RSCBP) opposed zoning the entire busjhess park to allow emergency homeless shelters due to potential loss in business property values, presence. of an element of society generally rejected by the majority, and potential ·loss of safes tax revenues for the City. He supported establishment of a facility in the triangle area because it is a more suitable location and the homeless are already camping there.

Lee Miller, Lake Forest resident, supported allowing an emergency homeless shelter at the triangle site. As a civil engineer and general contractor, he .believes there are reasonable solutions to the topographical challenge·s to· the site, including constructing a pervious parking lot to handle the drainage, and additionally ro·om on site for a community garden. In addition, he supported a "local preference" policy to give preference to San Clemente residents to. use the shelter, similar to Laguna Beach's policy.

Jack Kulp, Dana Point resident, read a letter des_cribing how he built his business from the .ground up in RSCBP.

Tom Mauriello, resident, is the attorney for HSCBP, supported allowiqg the homeless shelter on the triangle site as it is legally viable, meets all criteria, 'and is isolated from the community in a geed way, whereas the remainder of the entire business park is isolated in a .bad way.

Tom Alexander,. resident, opposed rezoning the business park because allowin·g a hom·e1ess shelter to be built there would put an undue burden on businesses and cr:eate problems for the surrounding community, whereas constructing it in the triangle area sounds ideal to meet the needs of the community with minimal negative impacts.


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Sandra Weaver, resident, commented that it is sad that the City has to be forceq by legislation to provide compassio1;1 a.nd morality to those less fortu,r:fate in the community; noted the h0mele.ss are humans like us just down ·on their luck, with potentially no family or friends to help them or take them in. IHope does a wonderful job helping the homeless get back on their feet. Jesus said, "Whatever you do to the least of me, you do to me."

Ed Connor, San Juan Capistrano resident and !Hope Board member, supported allowir;lg the homeless shelter on the triangle site and requested the Commission allow !Hope to work With the RSCBP to construct the homeless shelter in that location. He warned the Commission that if they do not allow them to put 6!? homeless in this one location, he will go to sa·cramento and ch:allenge the Housing Element. lhope has no desfre to be in the business park, and would prefer this site. He believes th~ §ite is workable and that' oQstacJes associated with it can be overcome; commented that existing churche_s qo not seem to be equipped to shelter the homeless overni@ht, eve.o it if is only 10 beds; requested the Commission support the triangle site.

Nancy Mcintyre; resident, commended the Commi.ssion and staff for their efforts to do the right thing for·the entire community and support the most vulnerable. She sapported the City working with a coalition of people to find the most reasonable and logical solution; commented that with the management plan, .it will be possible to come up with a win-win solution that will provide a safe environment for the homeless with the least negative impacts on the surrounding community.

Robelit Searle, resident, thanked the homeless shelter advocates for all their hard work on behalf of the homeless; cautioned there may be unintended .consequences. As a retired police· officer, he volunteered his time in the past to help those less fortunate, until he was cautioned by an administrator at the Los Angeles Downtown Mission that he was incurring personal liabiljty due to shady lawyers filing tawsuits. He cautioned that increasing numbers of the homeless on the street will lead to increased crime, piummeting· property values, and l0ss of quality of life. He ree9mmended ·the City work with homeless advocates to establish the best locations for emergency homeless shelters.

Vonne Barnes, resident and president of the Ranch.a San Clemente Homeowners Association, advised that the triangle site, Which is not irrigated, is in a very high fire hazard severity zone. She displayed photos · of existing encampments in and around the triangle site, as well as discarded propane tanks and other flammable materials scattered throughout. She speculated that allowing the h.omeless shelter in the triangle site will lead to more camp sites as well as chronic alcohol and drug issues.


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Minutes of .Adjourned RegularCommission Meeting of May 7, 2014 Page 11

Lindy O'To0le, . .resident, suggested staff add additi.onal buffering around the fire danger areas that could be dangerous to res[dents as well as significant bpffer around Richard Steed Mem0r:ial Park and the skate park in order to protect area ehildren. As a fi(efighter's wife, she has seen firsthand what can happen with fast moving fires, and taken in victims whose homes have been destroyed.

Reverend Patrick Crerar. resident, stated a preference that the City allow 65 to 70 beds in one location because there are economies of scale; it is harder to run h1c:ir1y .shelters with small numper of oeds than it is to run just one shelter WiJb a la~rger number of beds. The triangle location would be advantageoqs if by sheltering the homeless_ in a shelter it would eliminate the need fo'r the homeless to light fires to cook food or stay warm in a high fire danger area. As a pastor with experience in running a shelter, he supported allowiog ·larger -shelters to be built In areas that meet the State criteria, with churches ;in the area providing overflow temporary bed space with perhaps a meal. Churches cannot do the same thing that IHope can do out of a large faCility, which is help people regain their self sufficiency, address substance abuse, provide mental health support, and partner with social services, In response to questions, he speculated that maybe 10 to 20 percent of the homeless he has dealt with in the past prefer not to go into established shelters.

Georgette Korsen, resident, supported establishing a shelter away from schools, parks and homes; questioned why RSCBP was opposed to having a shelt_er within. the park itself but willing to allow it in the triangle area; advised those in shelters must be willir:ig to abide by its rules: i.e. no drugs or alcohol, Willingness to take mental health medications, etc., to ensure it does, not promote enabling. In addition,. the ideal program should support and provide kennel space for pets.

Alan Korsen,_ resident, opposed allowing the h_omeless shelter in the triangle site a~ itis too close to the high school, adjacent shopping center which is frequented by high school students and near housing traets. Using the site for a homeless shelter will req_uire. a citywide vote to change its zoning from open space, its grassy canyon loc~le will always be subject to fire hazards, and it would require access from Pico. The

· Rar1cho San Glernente Homeowners Association GC&R's clearly state that it is intended to be a passive area. The site is not suitable for engineering,. fire safety, and access reasons, and is too close to adjacent residences and schools.

Tamara Perras, resident and former RSCBP property manager for many years, supporting allowing the triangle site an emergeney homeless shelter; noted proactive leadership from RSCBP board members will help ensure· that it will happen.


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Thomas O'Keefe, resident, former Mayor and Councilmember, submitted a c,ard read alot1d by Chair Darden. He suggested· the use of the old Miram.ar Theater .as a potential property for the homeless. F1,.1nds available for housing the homeless could be used to help restore and preserve this historical landmark. The use should not require much parking, and the theater location . is convenient for local tra.nsients and the homeless without having fo provide transportation anywhere else.

Chair Darden dosed the public hearing.

Commission Discussion Regarding City's Estimated Number of Homeless Persons

The Commissioners discussed the best number to use as the City's estimated homeless need and concurred that the· high of 70 persons was appropriate because it was derived from multiple sources, which helps validate it.

IT WAS MOVED BY VICE CHAIR .BROWN, SECONDED BY COMMISSIONER RUEHLIN AND UNANIMOUSLY CARRIED TO SET THE CITY'S HOMELESS AT A COUNT OF 70.

Commission Discussion Regarding Strategy Determination:

Commissioner K;;:iupp supported allowing churches to have a prescribed number of beds .available for the homel~ss ~s a.11 a.nGillary use; supported the triaflgle sjte ar:i~q commended RSCBP boarp tn.embers for their support and efforts to encourage its use as an SB 2 site. He commented that the site has challenges such as a required pubiic vote before it can be changed to a non...:open space use, as well as expensive topographical and engineerirng issues to develop it. If the property .is donated for the use, the absence of site purchase costs might heip defray its development costs. In .addition, he· suggested there ·may be public and institutional parcels that may emerge as favorable a.fter further study ar:id supported the Heritage Oht:irch site as a potential stand-alone homeless shelter site.

Vice Chai~ Brown supported the triangle site as well cind commented that if it is supported by the Commission, should go to Council with the caveat that it go to a vote of the people. In addition,. he also supported the Calle Industrias (Behind Denny's) site but questioned the vacant parcel adjacent to· the. City's Water Treatment Plant on Pico due to pending · development of Marblehead Coastal. He suggested the Commission consider' a .numb·er of options, including the Calle Jndustrias site, triangle site with caveat that it must be put to a citywide vote, churches in nonresiqential areas with a 10 bed maximum, and use df public and institutional parcels to make up the numbers.


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Commissioner Eggleston acknowledged that although the City has a legal, ethical and moral obligation to care for its homeless', it is important that no decision be made that compromises the City's Mission Statement which.· states that our number orie priority is the 'heqlth and safety of this community' which is my guiding principal. He, questioned whether the Heritage Church site was ·viable, commentin·g that the Commission has not heard from them. He thanked the R$CBP ooard members for stepping u·p to the plate and suggestil'.lg tl]e. triangle site as a viable alternative to the entire business park, but he does not support that site as a viable alte:rnative. He knows many people that supported Measure V, which enacted the vote of the people requirement to approve the use of open space for another use, and he predicts a proposal to turn the triangle space, to a homeless shelter site would be overwhelmingly defeated. Additionally he believes that .constrnction of a homeless shelter at the triangle site may encourage additional campers and turn the site into a hage homeless encampment. He supported the Calle Industrias site, commentililg that many of the existing warehouses could be reasonably turned into homeless shelters, and a maximum of 10 beds in churches that are not in or adjacent to residential areas. He believes those two site choices more than satisfy the required number of beds.

Commissioner Ruehlin commented that there are many advantages co·nnected with the triangle site, including site availability as well as RSCBP and IHop·e support, but he felt that supporting this option would be setting a had precedent and create the perception that the City is receptive to redUcir:ig open space areas .. He i$ concerned with installing a homeless shelJer in the Calle Industrias area, as that area features narrow streets, a lot of retail, and is used by students walking to and from the high school. He believes the Heritage Church site may be viable as there is a large· buffer .around it and Heritage Church officials have supported construction of a hom.eless shelter there at a previous meeting. Using churches located in non-residential areas with limited beds would also be a good overflow option, With regard to the former Animal Shelter site located adjacent to the Water Treatment Facility, he speculated that because th.e site was deemed too hazardous to house animals, it seems to follow that it would be too hazardous for the homeless as well.

Bruce Wagner, one of the pastors at Heritage Church, stated that the Church supports zoning its vacant property for use as an emergency and/or full time homeless shelter. His church and many others .signed .a letter submitted by IHope because they also want to be in partnership with other churches to provide shelter.

Chair pro tern Crandell supported putting an overlay zone on the vacant site next to Heritage Church; speculated that although the triangle site may be viable in many ways, he is doubtful that the City's residents would support changiog the site from open space to homeless shelter use in a citywide vote; noted that although the Calle Industrias site meets all


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cr:iteria, its location in the City's major g~teway and view corridor make it proolematic. Although there is space in the RSCBP, he is concerned abollt protecting the children that visit the studios, gyms, and group teaching facilities etc., which have been approved by this C0mmissi0n to operate in the ·park. He is concerned that locati'ng a shelter may not be as much of a problem as controlling access to and fmm, and making sure the homeless are not out wandering about or ·causing trouble in areas where they should not be. He established from staff that requiring shelter operatbrs to provide shuttle service, or requiring that the homeless are dropped off in the same location they were picked up from may not be workable options in terms of SB 2 law.

In response to questions from Chair pto tern Crandell, Deputy Bull commented th.C!t if the City elects to designate an area for pick up and drop off, ev.entu'311y the homeless seeking shelter will become acclimated to it as a stan.dard procedure. Although tbis may help prevent the homeless from. loitering at the shelter; the pick up/drop off area may attract a crowd miliing about waiting for pick up or loitering after drop off.

Commissioner Ward is opposed to including the HSCBP as a potential homeless shelter location because a homeles$ shelter does not fit in with the goals of a premier business park with its acres of open space, golf course, and safe environment for families. It is also not fair to install a homeless shelter in an area where businesses and landowners have spent years bailding up businesses and weathering downturns, and then have a homeless shelter potentially negatively affect business. She thanked the RSCBP for offering up the triangle site as a potential homeless shel1er location, but questioned whether it is a good idea to continue allowing the homeless in open spate areas where fire danger is of major concern. She .suggested that two to three s_rnaller shelters, rather than· one large 70-bed shelter would be ·preferable because not all the homeles.s peop]e get along, and they thernselves may prefer not to be housed with a la~ge number of homel.ess. In addition, constructing just one large shelter poses on undue burden on a. single area. She supported the Calle Industrias site as the most compatible and tolerant of the other sites. It is in a business area, with fenced off btisinesses, and a secure and fenced off homeless shelter would fit better there. She has some ¢oncerns regarding negative impacts on the retail located in the nearby center, and anticipates swift police action in response to any calls. She believes that previding the homeless with food and lodging may result In less need to panhandle. In addition, she supported designating, the· 13 churches located outside of residential areas as potential overflow, with no more than 10 allowed for each site. She did not support any of the remaining sites.

Chair Darden agreed with Commissioner Ward that a large number of homeless ih one site may result in higher likelihood of problems requiring intervention from Police Services. She favors 35 or 40 for the maximum


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number at one shelter, commenting that a smaller amount would be easier to cox1trol, and result in less impacts to just Olile area than would a larger l)t.Hnoer such as 65 to 70. She ·suppor:tecf 'the Calle lndtJstrias site With the caveat that the amount is controlled. She supported 30 to 35 at the Heritage Church site, and a maximum higher than 10 for non residential .church sites. Although the triangle site is a perfect example of cooperation, with tlile RSCBP willing to donate the land, she is not sure that that is the best use for open space, and is concerned that the community may agree. If the majority df the Cornniission feels it is a good idea to bring tbis idea to Council for further discussion and public input, she can support;that action. She suppotis lirnits to the large shelte·r sites of 30-35 and is, agreeable to reconsid~rihg the r:iWmbers and sites if it is determined rnose beds are needed. She darified that none of the public entities WOLJld t:>e required to sell or iease their property for use as a homeless shelter.

Vice Chair Brown st1pported inCluding the triangle site as a potential location despite the fact that it would need a city.wide vote because it is a win-win proposal He also supported the Heritage Church site, Calle Industrias· site, and churches in non resideotial areas used for overflow. He supported looking at each of the public/industrial sites to determine if they meet ttie criteria outlined in SB 2.

Assistant City Attorney Thind speculated that the triangle site would be brought to the attention of Council for discussion, whether or not the Planning Commission recommends it. In addition, be cautioned against considering requiring CUPs for homele·ss shelters at this point in the process.

Chair pro tern Crandell pointed out that th.ff information provided by staff on what other cities have done to satisfy 'SB 2 regulations indicates that other cities have exceeded their reported homeless need by up to 400%.

Associate Planner Gregg pointed out for the record that although the Saddleback Church site located in Talega is Within 500 feet of a residential are·a, the church itself is outside th·e area.

Assistant City Attorney Thind advised that the Commission has_ the option of establishing one or more overlays to establish how many beds could be allowed on site, and then designating chur,ches according to overlays.

Action on Lois Berg Rule:

Noting that the time was past 11:00 p.m., Commissioner Kaupp moved, CommissionerWard seconded, and it was carried 6-1, with Commissioner Eggleston opposed, to continue deliberations for another 30 minutes.

Straw Votes:


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Churches - Allow by right shelters as ancillary' .uses to ci church up to 30 beds, when located 500 ff away from the nearest residential use (Passed 5-2 with Commissioners Ward and l?ggleston not in favor)

In a preliminary straw vote without the dis.cussion of the number of beds, the Commission Were unanimously in favor of including the church option to addre.ss SB 2 requirements. They then discussed the number of beds that could be provided at .church sites, including discussion of potentially lower nurnb.ers. for those located with 500 feet bf residential areas and higher numbers for those located in non residential areas. It was noted that there were some churches with the capacity and desire to house up to 30 beds, while .others may struggle to provide 10. Additionally, it was pointed out during discussion that allowing several churches with only 10 beds apiece may actually confuse the homeless, and end up with them traveling from church to church looking for one th·at has an available bed. Allowing more beds at fewer churches mignt eliminate some of that confusion. The majority of the Commission agreed that churches in non residential areas should have the option of providing beds for up to 30 homeless on an emergency shelter basis. Planning staff will review the churches and perform more analysis for tbe'ir consideration, including potential that a la,rger number could be allowed with approval of a Conditional Use Permit. Staff will bring options for consideration at their May 28 meeting .. Tt,l_e final vote allowing up to 30 beds at each church site was 5-2, vvitli Gomrnissioner Ward and Commissioner Eggleston not supporting the proposed number of maximt1m be.ds.

Public and Institutional Parcels - Allow by right shelters up to 35 beds in either Pubic- llnstitation Zones (Passed 5~2, with Commissioner Eggleston and Comm'issioner Ruehlin not in favor)

The majority of the Commissioners supported a 35.,bed limit in either the public or· institutional zones, with staff bringing back an inventory of the subject properties for review at the meeting of May 28.

Calle Industrias -Allow by right an emergency homeless shelter with up to ;35 beqs in the area behind Denny's (Passed with 5 in favor, With Commissioner Kaupp and Commissioner Ruehl in nof in favor)

Heritage. Church Lot - Allow by right an emergency homeless shelter at the Heritage Church site with up to 45 beds (Pass-ed with 5 in favor, with .commissioner Ward and Commissioner Eggleston not in favor)

Commissioner Eggleston commented that these votes will allow hundreds of ernergeJ1cy shelter beds to be provided in these areas by right and Assistant City Attorney Thind agreed that that was his understanding as well. Principal Planner Hook and City Planner Pechous stated that their


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understanding was that only 70 beds would be allowed by right in these areas, with any additional beds prqposed subject to discretionary review.

For the record, the Commissioners concurred that they made the preceding votes based on direction from staff indicating that the homeless shelters would, be, allowed by right at the aforementioned locations until the number of available beds actually built re·aches 70. After the City has reached its goal ·of 70 emergency shelter beds by right, any additional beds proposed would require discretional approval. City Planner Pechous agreed to research this understanding and report back.

IT WAS MOVED BY COMMISSIONER F{UEHLIN, SECONDED BY COMMISSIONER KAUPP, AND UNAN"!MdUSL Y CARRIED TO CONTINUE SB 2 EMERGENCY SHELTER ORDINANCE TO THE MEETING dF MAY28, 2-014. -

[ITEM CONTINI.JED. PLANNING COMMISSION DECISION PENDING.]

9. NEW BUSINESS - None

10. OLD BUSINESS - None

11. REPORTS OF COMMISSION_ERS/STAFF

A. Tentative Future Agenda B. Minutes from the· Zoning Administrator meeting of April 16, 2014 C. Staff Waiver 14-145, 704 Calle Puente -D. Staff Waiv~r 14-1'47, 145' and 147 Avenic:la Del Mar E. Staff Waiver 14-15'1, 412 Avenida Victoria F. Staff Waiver 14'" 153, 328 Avenida Santa Margarita G. Staff Waiver 14" 155, 110 Avenida La Pata H. Staff Waiver 14-160, 401 S. El Camino Real I. Staff Waiver 14-161, 267 W. Marquita

12. ADJOURNMENT

IT WAS MOVED BY COMMISSIONER RUEHLIN, SECONDED BY VICE CHAIR BROWN, AND UNANIMOUSLY CARRIED to adjourn at 11 :35 p.m. to the Study Session on May 21, 2014, at 6:00 p.m. in Council Chambers at City Hall located at 100 Avenida Presidio, San Clemente, CA.


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Minutes of Adjourned Regular Commission Meeting ofMay 7, 2014 Page 18


EXHIBIT 5


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