Berkeley has been attempting to address the problem of homelessness within its city boundaries, for quite some time. This Berkeleyside article sums up the history of Berkeley’s homeless issue and the city’s attempt to come up with solutions for it. As well, this Berkeleyside article explores more of the city’s work with homelessness over the years.
This study done by the Homeless Task Force on HOmelessness in Berkeley helps put into context the problem. Homeless Task Force study on Homelessness in Berkeley 2009
Note from page 3 of the study, 41% of homeless had serious mental illness and 40% were chronic substance abusers.
In recent years the problem of homelessness has increased dramatically in Berkeley as in other Bay Area cities, and around the nation. In 2016, Jesse Arreguin, who ran on a campaign saying that homelessness was his first priority, was elected Berkeley’s mayor. In 2016, a group of homeless people calling themselves the “Poor Tour” or “First They Came for the Homeless” began setting up homeless camps in very prominent places, such as in public parks or on street medians, to draw attention to the problem, as well as to simply insist on taking for themselves what they felt the city was not doing enough to provide — decent shelter. Arguably, when a city has not been designed with the homeless in mind (as is the case with most cities), there is really no “appropriate” place for a homeless encampment. However, the Poor Tour would choose some of the most inappropriate of places — such as in the middle of a street between two lanes of traffic.
Hence the Poor Tour’s camps were subject to serial eviction, 17 times in all. This website documents those evictions. In later 2016, the Poor Tour settled in at a camp at the Here/There sculpture on the Berkeley/Oakland city border, and was permitted to remain there for nearly a year. Then, in October 2017, a woman was found dead in a tent at this camp, as related in this article and in this article. Very soon after this, BART which owned the land the camp was set up upon, moved to evict the campers from this area. As is now unfortunately too often the case with homeless camps, and with the Poor Tour camp in particular, the denizens of these camps are getting free legal representation, which means that any entity or agency’s attempt to remove them becomes more expensive and frought with difficulty. Their attorney filed to prevent the eviction, and the federal judge granted a stay. They were permitted to remain for another week. They sued the city and BART, as stated in this article. Eventually BART was allowed to evict the homeless encampment. One wonders how any other result could have been possible — would BART have been forced to allow the camp to remain there for the next, oh, dozen years or the next century? The judge in this case, however, ordered the city of Berkeley to submit a plan about how it would house “substantially all of its homeless” by November 28th 2017.
When this news was presented in an article on Berkeleyside, many of the astute commenters noted the problem here — why was Berkeley being asked by the judge to house substantially all of its homeless, while other cities in the county had far fewer or even no homeless people? Why should this burden be placed on Berkeley? The judge in essence seemed to be making the same kind of unreasonable demand that the Poor Tour had made — the judge seemed to demand shelter, for all of them, while the Poor Tour demanded free permanent housing for all — and apparently for everyone who happened to show up in the city demanding this. The problem being highlighted by both the judge’s and the Poor Tour’s demands, in essence can be seen as a kind of bullying. Apparently the nicest kid on the block gets the most bullying — Berkeley has been so very tolerant and supportive to its homeless population, that the thanks it gets comes in the form of an ever higher ratched up set of demands.
The fact that the homeless are in fact homeless, without residence, and the fact that some cities are overburdened with homeless while other cities have none…as well as the fact that the homeless can travel around– all will eventually point ever more strongly for a need to resolve these issues at a federal or at least state level. No one city can be expected to provide for everyone who has a whim to go and plop down there and hold out their hand asking for help. It’s been said several times, for instance, that it would be ridiculous to think that people have a right to just show up in Beverly Hills and demand free permanent housing, or threaten to extort the city to get that by making a nuisance of themselves if they aren’t given everything they want. People deserve help and I believe everyone deserves adequate shelter, — in fact I think the point many make that “housing is a human right” is very well made. However, even if housing is a human right, doesn’t mean indigent people have a right to dictate exactly what type of housing they will be given and where it will be. The old saying “beggars can’t be choosers” is quite relevant here, and this is the common sense being rejected by many homeless and their advocates, who often are being quite choosy indeed — in particular by demanding housing in one of the areas with the most expensive housing in the nation.
I think we are in the very beginning stages of having to come to understand the need for federal/state organization of homeless services, nationally. It will take more time as cities continue to observe the problem grow worse. As well, I think we will have to accept that the housing that many will get, is going to be very basic and rudimentary. The equivalent of refugee camps is on the horizon, I think. One Berkeleyside commenter pointed to the United Nations Refugee Agency as an agency which should take up this task.
On November 28th the City of Berkeley submitted its response to the judge’s order, as described in this article. Their 17 page response to the judge summarized the problem and the city’s response. An article about Berkeley’s intentions for doing winter shelter for the homeless is here.
Their data about the homeless is peer reported — they relied upon statements made by the homeless themselves — which leaves this data open to question. For instance the city states, ” Seventy six percent of people reported that they were last housed somewhere in Alameda County at the time they lost their housing; an additional 20% were housed somewhere else in California, while only 4% were last housed out of state.”
The city did pertinently note that its tolerance of the homeless and its degree of support of the homeless may factor into the reason why there are more homeless in Berkeley than in, for instance, Hayward or Fremont, or other Alameda county cities which have NO homeless people.
The city wrote: ” The City of Berkeley provides significant support to homeless people, and the community is considered quite tolerant of the challenges associated with homelessness. Both of these are factors in Berkeley’s disproportionately large homeless population. Consider that the cities of Hayward and Fremont, both larger than Berkeley, have fewer than half as many homeless people. There are several Alameda County cities with no homeless people. “
Berkeley pointed out that it is the first city in Alameda County that developed a coordinated system to help the homeless, one which must, according to federal mandates made in conjunction with federal monies given for the cause, prioritize those with highest needs: “The Hub carries out a federal mandate to prioritize homeless resources for those with the highest need; in Berkeley, this means long term homeless people with a disability. The development of the Hub was informed by a series of community meetings
including discussions with homeless people in Berkeley. It is operated by a local nonprofit organization, the Berkeley Food and Housing Project, with funding and guidance from the City of Berkeley. The Hub serves as Berkeley’s single point of entry for housing, shelter and supportive services, and strategically first serves those least able to help themselves. Since it opened nearly two years ago, 101 chronically homeless people – people living on the streets for more than a year and with a disability (often more than one) — have been permanently housed. ”
Additionally, the city summarized its plans to develop an affordable housing project at Berkeley Way which would combine low-cost housing with 89 studio apartments and a shelter with 32 shelter beds. They described their plans to provide winter season shelter, and to develop two city properties (a warehouse on University Ave and the basement at City Hall) into shelters that could house 75 people each.
However the city also expressed its reluctance to devote energy, money or resources toward sanctioned encampments: “City staff have been reluctant to pursue sanctioned
encampments precisely because they distract limited resources, staff time, and nonprofit capacity from the ultimate goal: actually ending people’s homelessness by getting them housed.”
As well, the city pointed out that creation of sanctioned camps would create legal liabilities for them: .” Sanctioned tent encampments do not qualify for tort immunity as they do not meet “minimum public health and safety standards”
In particular, the tents would not qualify as meeting basic health and safety standards, because “HCD advises that an “emergency sleeping cabin” as defined in Govt. Code § 8698.3(h) would meet minimum health and safety standards. Pursuant to Govt. Code § 8698.3(h), an emergency sleeping cabin must have all of the following features: (1) a “relocatable hard-sided structure….with a raised floor area of no less than 120 square feet…for two occupants and a minimum of 70 square feet of interior space for one occupant”; (2) “a minimum of 20 pounds per square foot live load roof structure”; (3) electrical power; (4) at least one interior light fixture; and (5) electrical heating that is GFCI-protected. (Govt. Code § 8698.1). Since outdoor tents have none of these features, a tent encampment would not meet the standards set forth in Govt. Code § 8698, and the City would therefore not be entitled to the immunity from tort liability provided by Govt. Code § 8698.1(a).”
There is potential for change in the latter, because beginning Jan 1 2018, a new government code comes into play which is designed to help cities develop shelter for the homeless in a timely way. In this case the city would be permitted to develop its own health and safety standards, and “If HCD finds that the City’s proposed standards meet “minimum health and safety standards,” then landlord/tenant laws regarding habitability will not apply to any homeless shelters that are constructed pursuant to such standards.”
The city indicated that public parks were not permitted to be used to set up homeless encampments, because “The City may not use parks or open space in Berkeley for non-recreational purposes, including homeless encampments, without voter approval. In 1986, Berkeley voters approved Measure L, later codified as Chapter 6.42 of the Berkeley Municipal Code, which requires that all public parks, playgrounds, school yards and vacant public land being used as open space be “dedicated to permanent recreational use” by the City of Berkeley and “funded for recreational use.” BMC Chapter 6.42.010 and 6.42.020. ” Hence, ” Accordingly, the City is precluded from establishing some or all of a park or open space area as a sanctioned homeless encampment without the approval of the voters. “
The city indicated too that the Berkeley Marina is off limits for use as a homeless encampment: “City lands held in “Trust” at the Berkeley Marina may not be used for a homeless encampment pursuant to the Public Trust Doctrine The Berkeley Marina and waterfront are subject to the common law Public Trust Doctrine and the statutory limitations found in the statute granting these lands to the City of Berkeley in 1913, as amended. See Stats. 193, ch. 347, § 1 and Stats. 1962, ch. 55, § 1. The City of Berkeley’s statutory grant of its tidelands and submerged lands currently requires that such lands be “held in trust” for specified uses in which there is a general, statewide benefit, including wharves, docks, piers, commercial and industrial purposes, aviation facilities, transportation and utility facilities, public buildings, parks, playgrounds, marinas, restaurants and motels. Although courts have recognized that “trust” uses may evolve over time, they have found it to be essential that they be public, water-dependent uses that serve a statewide purpose. Purely municipal facilities such as libraries and hospitals have been held to not be of general statewide interest. Mallon v. City of Long Beach, 44 Cal.2d 199 (1955). By letter of April 18, 2017, the California State Lands Commission advised the City of its opinion that use of any portion of the Berkeley Marina and waterfront for a homeless encampment would be inconsistent with the City of Berkeley’s statutory grant and the Public Trust Doctrine.”
Actually even beyond the Public Trust Doctrine dictating use of Berkeley Marina lands, Berkeley itself has multiple municipal codes which prohibit several homeless–related activities which are now taking place at the Berkeley Marina, such as:
A. Permission from the Harbormaster must be obtained prior to parking any vehicle, trailer or boat in the parking areas within the marina area for a period exceeding 72 consecutive hours. If permission is not requested or granted, the vehicle, trailer or boat may be cited and removed from the marina area at the owner’s expense.
B. Any vehicle, trailer, or boat/trailer combination parked in restricted areas, in limited parking areas beyond the allowed time, or in driveways, walks, or breezeways, may be cited and removed from the marina at the owner’s expense.
C. The use of any vehicle for the sole purpose of storage while parked in the marina area is prohibited.
D. No person shall perform repairs to a motor vehicle anywhere in the marina except in an emergency.
E. Use of all bicycles, skateboards, roller skates, roller blades, and motor-driven or sail-propelled vehicles, except wheelchairs for the disabled and City maintenance and police vehicles, is prohibited on any path, sidewalk, pier, dock, float or gangway in the marina, other than on paths so designated for their specific use. The use of any vehicle for eating or sleeping for over four hours per day while parked in the marina is prohibited. (Ord. 6925-NS § 1 (part), 2006: Ord. 6645-NS § 1, 2001)
6.20.255 Vehicle, trailer, heavy duty commercial and over-sized vehicle parking prohibited on public streets in the marina area.
It is unlawful for the operator of any vehicle to stop, stand, park, or leave standing such vehicle, except when necessary to avoid conflict with other traffic or in compliance with the direction of a police officer or other authorized officer, or traffic sign or signal, on Seawall Drive, Spinnaker Way, Marina Boulevard and University Avenue between Frontage Road and Seawall Drive.
A. Heavy duty commercial or over-sized vehicles are prohibited from parking in the above areas at all times. For purposes of this section a heavy duty commercial or over-sized vehicle is a single vehicle or combination of vehicles, with a commercial license plate, having more than two axels; a single vehicle or combination of vehicles 25 feet or more in length regardless of type of license plate; or a trailer or semi-trailer with commercial license plate or trailer identification plate. Heavy duty commercial vehicle or trailer shall include, but shall not be limited to, truck tractor, semi-trailer, trailer, trailer bus, trailer coach, camp trailer, mobile home, gantry truck, dump truck, moving vans and pole or pipe dollies. Excluded are commercial pickup trucks, tour buses, school buses, public transit buses, and paratransit buses.
B. All other vehicles and trailers not defined as heavy duty commercial or over-sized vehicles in subsection A above are prohibited from parking in the above areas between the hours of 2:00 a.m. and 6:00 a.m. daily. (Ord. 6925-NS § 1 (part), 2006: Ord. 6803-NS § 1, 2004; Ord. 6711-NS § 1, 2002)
A. Use of marina land areas for overnight camping or sleeping is prohibited.
B. Use of campfires in the marina land areas other than in designated areas, without prior written permission of the Harbormaster, is prohibited. (Ord. 6925-NS § 1 (part), 2006: Ord. 6645-NS § 1, 2001)
This Berkeley Municipal Code info is found here:
See also this article about this
In sum, what I glean from reading these statements is that while the city is committed to making the homeless problem its number one priority, as many of us have anticipated, it faces very real limits in what is possible to do based on financial limitations as well as legal ones. In fact, from what the city says here, many present time homeless camps may be illegally situated on city public land, and the public could sue the city to remove them. The law is clear that this city owned public land cannot be used for homeless encampments. By contrast, spaces under freeway ramps, owned by Caltrans or other agencies, or other land that does not belong to the city, may not fall under these rules.
In particular I find it ironic that some of the strongest prohibitions on homeless camping involve the area at the Berkeley Marina, which, as is shown in the article on the results of the Homeless Mapping project done on this site, is the area in Berkeley with the highest number of people living in vehicles. Again, it seems to me that the public could sue the city of Berkeley to follow the Public Trust Doctrine and return these lands to the public.
However, regardless whether the current homeless camps at or near public lands are technically illegal or not — the spirit of the laws here quoted reflect the deeper and broader issue of the city government’s general responsibility to protect public lands for the public to use. And any homeless camp or vehicular housing on public lands or in public streets is a breach of the implied promise to the public, as these camps essentially involve a modern day type of homesteading — individuals are simply taking something that belongs to the public and converting it to private use.
In the response to the judge, the City indicated what it believed was within its power to do to tend to the homeless in the way that it deems most suitable — which is the “perfect” solution of housing them. However, given that it is not possible to provide permanent housing for an ever increasing number of homeless people in Berkeley, and the city streets and parks are full of the result of this impossible quest, the city needs to face the practical problem of what to do about all those whom it cannot help, and who then become a problem increasingly present nearly on our doorstep.
Update as of January 22 2018:
Berkeley is proposing a new policy on encampments and objects on sidewalks, see here:
Update February 10 2018:
As of February 8 2018, the city of Berkeley dismantled the homeless encampment at the lawn at Old City Hall, which had quadrupled in size over the last 3 months from 10 tents in November 2017 to 39 tents (as counted by police who dismantled the camp) on Feb 8 2018. At this rate of growth, the camp would have been 160 tents by May 2018 and 500 tents by October 2018. This eviction notice was posted on Feb 7th, which indicates the Municipal Code sections which the camp was violating. THere is a law against setting up structures on City property.
Not long after this removal of the camp, some of the campers moved to adjacent City Hall on Milvia Street and set up tents there. As shown in videos shared on the Facebook Page for the First They Came for the Homeless group, these were visited by the police and/or by city employees and told they could not camp there, and were provided with a list of places to go for shelter and/or services.
Berkeley’s Parks and Waterfront Commission has asked that City Council please enforce the no-camping law at the Berkeley Marina.
The Parks Commission recommendation:
9. Marina and Parks Use. Action: Send a communication to Council requesting enforcement of the
Marina Ordinance BMC Section 6.20.260 – Overnight camping in marina land areas prohibited; and
BMC Section 6.32.060 – Park Hours – no public use of City parks between 10pm and 6am. *
This is the letter the Parks and Waterfront Commission has sent to Berkeley City Council,
This is the signage the Parks and Waterfront Commission recommends for use at the Berkeley Marina:
An interesting side point to this issue of housing the homeless was presented by one of the Berkeleyside commenters. A reader submitted the following information about some of the salaries enjoyed by city of Berkeley employees. City employees enjoy these fat pay packages while Berkeley residents pay very high property taxes and the city frets about lack of funds for various projects, including those for the homeless:
Here are some City of Berkeley employee salaries and benefits. The list goes on forever. It seems that Berkeley’s public servants are more interested in serving themselves than serving those in need. Taxpayers let them get away with it even when it puts overwhelming pressure on the city’s budget. Last time I checked, you didn’t pursue a career in the public sector to make as much as a Google engineer (equal footing with tech salaries being a common justification, not that I condone these salaries either). With small cuts to these inflated compensations, the City would have enough money to house homeless people every winter. Clearly that is not their priority:
Name Job title Regular pay Overtime pay Other pay Total pay Total benefits Total pay & benefits
Stanley J Zukowski FIRE APPARATUS OPERATOR
Berkeley, 2016 $112,182.00 $129,848.00 $71,355.00 $313,385.00 $74,964.00 $388,349.00
Bedwendolyn D Williams-Ridley CITY MANAGER
Berkeley, 2016 $257,692.00 $0.00 $5,914.00 $263,606.00 $109,139.00 $372,745.00
David A Frankel POLICE CAPTAIN
Berkeley, 2016 $184,193.00 $0.00 $39,477.00 $223,670.00 $135,742.00 $359,412.00
Peter J Hong POLICE SERGEANT
Berkeley, 2016 $133,856.00 $59,776.00 $53,944.00 $247,576.00 $109,056.00 $356,632.00
Kevin A Reece POLICE LIEUTENANT
Berkeley, 2016 $133,855.00 $76,751.00 $36,677.00 $247,283.00 $103,491.00 $350,774.00
Jeremy R Lathrop POLICE OFFICER
Berkeley, 2016 $116,071.00 $141,542.00 $18,622.00 $276,235.00 $72,984.00 $349,219.00
Lionell F Dozier Ii POLICE OFFICER
Berkeley, 2016 $115,229.00 $116,138.00 $29,856.00 $261,223.00 $87,419.00 $348,642.00
Andrew R Greenwood POLICE CAPTAIN
Berkeley, 2016 $188,465.00 $0.00 $24,470.00 $212,935.00 $130,299.00 $343,234.00
Steve R Rego POLICE OFFICER
Berkeley, 2016 $116,071.00 $91,086.00 $36,364.00 $243,521.00 $90,700.00 $334,221.00
Edward A Spiller POLICE CAPTAIN
Berkeley, 2016 $165,220.00 $3,770.00 $31,084.00 $200,074.00 $122,064.00 $322,138.00
Craig W Lindenau POLICE SERGEANT
Berkeley, 2016 $133,857.00 $78,178.00 $13,145.00 $225,180.00 $96,843.00 $322,023.00
David K Reece POLICE CAPTAIN
Berkeley, 2016 $161,583.00 $24,230.00 $17,153.00 $202,966.00 $118,477.00 $321,443.00
Daniel R Montgomery POLICE LIEUTENANT
Berkeley, 2016 $160,674.00 $23,392.00 $13,093.00 $197,159.00 $117,440.00 $314,599.00
Richard M Guzman FIRE CAPTAIN I
Berkeley, 2016 $134,466.00 $76,299.00 $23,800.00 $234,565.00 $79,202.00 $313,767.00
Michael K Meehan POLICE CHIEF
Berkeley, 2016 $184,966.00 $0.00 $20,619.00 $205,585.00 $107,105.00 $312,690.00
Randolph Files POLICE LIEUTENANT
Berkeley, 2016 $160,674.00 $19,310.00 $19,070.00 $199,054.00 $110,470.00 $309,524.00
Kevin M Schofield POLICE LIEUTENANT
Berkeley, 2016 $160,675.00 $21,586.00 $14,592.00 $196,853.00 $112,423.00 $309,276.00
Todd C Sabins POLICE SERGEANT
Berkeley, 2016 $133,856.00 $48,708.00 $25,017.00 $207,581.00 $101,607.00 $309,188.00
David A Lindenau POLICE SERGEANT
Berkeley, 2016 $133,856.00 $52,691.00 $20,855.00 $207,402.00 $100,897.00 $308,299.00
Andrew B Rateaver POLICE LIEUTENANT
Berkeley, 2016 $160,675.00 $21,677.00 $15,562.00 $197,914.00 $110,299.00 $308,213.00
Jennifer A Louis POLICE CAPTAIN
Berkeley, 2016 $144,158.00 $4,513.00 $28,897.00 $177,568.00 $121,844.00 $299,412.00
Gilbert K Dong Jr FIRE CHIEF
Berkeley, 2016 $220,990.00 $0.00 ($9,086.00) $211,904.00 $86,593.00 $298,497.00
Rico Rolleri POLICE LIEUTENANT
Berkeley, 2016 $160,674.00 $9,204.00 $10,768.00 $180,646.00 $115,566.00 $296,212.00
Jeffrey F Johns PSYCHIATRIST SUPERVISOR
Berkeley, 2016 $215,395.00 $0.00 $485.00 $215,880.00 $75,488.00 $291,368.00
Michael R Durbin POLICE LIEUTENANT
Berkeley, 2016 $145,262.00 $27,799.00 $13,201.00 $186,262.00 $105,033.00 $291,295.00
Charles H Wong FIRE CAPTAIN I
Berkeley, 2016 $134,467.00 $87,236.00 $8,742.00 $230,445.00 $59,975.00 $290,420.00
Alyson L Hart POLICE LIEUTENANT
Berkeley, 2016 $160,674.00 $10,541.00 $21,491.00 $192,706.00 $95,118.00 $287,824.00
Scott W Hall FIRE CAPTAIN II
Berkeley, 2016 $124,389.00 $68,597.00 $18,862.00 $211,848.00 $73,255.00 $285,103.00
David M White POLICE SERGEANT
Berkeley, 2016 $133,855.00 $36,491.00 $11,714.00 $182,060.00 $99,177.00 $281,237.00
Anthony Hall Iii FIREFIGHTER
Berkeley, 2016 $104,376.00 $98,470.00 $9,357.00 $212,203.00 $68,438.00 $280,641.00
Mary C Kusmiss POLICE SERGEANT
Berkeley, 2016 $105,028.00 $30,228.00 $43,683.00 $178,939.00 $101,308.00 $280,247.00
Sarah M Reynoso DIRECTOR OF HUMAN RESOURCES
Berkeley, 2016 $184,239.00 $0.00 $6,107.00 $190,346.00 $89,453.00 $279,799.00
Spencer Fomby Ii POLICE SERGEANT
Berkeley, 2016 $133,856.00 $60,111.00 $2,461.00 $196,428.00 $83,171.00 $279,599.00
Janet M Berreman HEALTH OFFICER (CERT)
Berkeley, 2016 $190,512.00 $0.00 ($1,461.00) $189,051.00 $89,197.00 $278,248.00
David W Marble POLICE SERGEANT
Berkeley, 2016 $133,855.00 $32,112.00 $14,071.00 $180,038.00 $95,840.00 $275,878.00
James J Kelekian EXECUTIVE DIRECTOR RENT BOARD
Berkeley, 2016 $196,811.00 $0.00 $4,529.00 $201,340.00 $74,209.00 $275,549.00
Zachary D Cowan CITY ATTORNEY
Berkeley, 2016 $203,465.00 $0.00 ($2,690.00) $200,775.00 $74,332.00 $275,107.00
John R Tarascio FIRE CAPTAIN II
Berkeley, 2016 $117,486.00 $64,005.00 $20,243.00 $201,734.00 $72,708.00 $274,442.00
Phillip L Harrington DIRECTOR OF PUBLIC WORKS
Berkeley, 2016 $187,593.00 $0.00 $1,175.00 $188,768.00 $83,707.00 $272,475.00