A new ordinance quietly passed by Scottsdale City Council last week could have serious implications for the city’s homeless population by effectively criminalizing camping on nearly half of the city’s public park land.
The ordinance could also put the city at odds with a 2018 ruling by the 9th U.S. Circuit Court of Appeals.
In Martin v. Boise, the court ruled that it is unconstitutional for cities to punish homeless people for sleeping outdoors if there is not an adequate supply of shelter beds available.
The ruling, which applies to municipalities in the western U.S. within the 9th Circuit, resulted in many cities, Scottsdale included, repealing outdoor camping bans that appeared to violate the ruling.
Scottsdale’s new ordinance is narrower.
It prohibits camping on any land in the city that is subject to flooding or falls within a watercourse. Violators can be charged with a class 3 misdemeanor, which carries a maximum fine of $500 and 30 days in jail.
Council passed the ordinance unanimously on May 4 on its consent agenda, a catchall category typically used for non-controversial items.
According to a Progress analysis of Scottsdale city parks and floodplain maps, the city has just over 1,000 acres of parkland and 44.25 percent of it falls in areas designated as flood zones or waterways.
The majority of the impacted parkland – about 313 acres – is within parks along the city’s Indian Bend Wash Greenbelt, a vast green space in southern Scottsdale built decades ago as an alternative to a concrete canal to address annual flooding concerns.
Southern Scottsdale also happens to be the area of the city with the highest concentration of individuals experiencing homelessness, according to Maricopa Association of Government’s unsheltered count map from 2020.
The city justified the new ordinance in the name of public safety.
“The purpose of this section is to protect the life and safety of persons who could be endangered by flooding including flash flooding by choosing to camp in areas subject to flooding or within a watercourse,” according to the ordinance language.
According to a report by city staff, Scottsdale Fire Department has conducted 22 swift water rescues due to flooding over the past 10 years.
A city spokesman could not provide further details on how many of those rescues involved individuals camping.
“Prior to the decision in Martin v. Boise, all camping in public was banned regardless of whether it presented a safety issue or not, so there were not likely to be instances where someone was camping in an area subject to flooding,” spokesman Kelly Corsette said. “The purpose of the ordinance is to be proactive and attempt to avoid a tragedy before it happens.”
The city has also seen an increase in camping, mostly under bridges in the city’s desert greenbelt, Corsette said.
Corsette also said he does not believe the new ordinance violates the 9th Circuit’s decision “because the purpose of the ordinance is to protect the life and safety of persons who could be endangered by flooding including flash flooding by choosing to camp in areas that are subject to flooding and in watercourses.”
Corsette also noted that the ordinance states that a person cannot be cited or arrested without first being given the opportunity to move.
City staff will also work with non-profit Phoenix Rescue Mission to conduct outreach with homeless individuals and provide potential housing options.
But those stipulations may not be enough, according Tristia Bauman, a senior attorney with the National Homelessness Law Center.
“That is certainly better than not giving a person an opportunity to comply with the ordinance…it’s an argument that it would not necessarily comply with” the Martin v. Boise decision, she said.
She noted that the court’s ruling “talks about indoor shelter alternatives and not necessarily like another plot of open land where somebody could engage in activities.”
That gets to the heart of the 9th Circuit’s decision in Martin v. Boise, which essentially said a city cannot ban sleeping in public spaces if it is not providing adequate indoor alternatives.
“The panel held that as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors on public property on the false premise they had a choice in the matter,” according to the opinion.
There is currently only one homeless shelter in Scottsdale, according to the nationwide database on homelessshelterdirectory.org.
And that shelter, run by the non-profit Family Promise of Greater Phoenix, is only open to families.Scottsdale’s annual Point-in-Time count found the number of homeless people contacted in the city increased from 50 in 2017 to 102 people in 2020.
Phoenix Rescue Mission, a non-profit contracted by the city to provide services to homeless individuals, contacted 189 people living on the street in Scottsdale this year.
Bauman said the city has a genuine public safety justification for the ordinance.
The city includes many floodplains identified by the Federal Emergency Management Agency, including the greenbelt area, which was the site of massive annual floods before the Indian Bend Wash was built.
But she said the language of the ordinance is written too broadly and could result in unhoused persons being treated differently from other Scottsdale residents.
“It’s appropriate for governments to regulate public space in a way that ensures safety for all…but this ordinance doesn’t distinguish between the flooding risk during periods when the same spaces are open for the general public versus when they’re closed,” Bauman said.
The ordinance’s broad definition of camping goes beyond simply banning sleeping in an area at risk of flooding.
“‘Camp’ means to reside in or use a place for living accommodation purposes; including, but not limited to, activities such as erecting tents or any other structure providing shelter, digging or breaking earth, laying down bedding for the purposes of sleeping, using camp paraphernalia, storing personal belongings, starting a fire, regularly cooking or preparing meals, or living in a parked vehicle.”
The ordinance also bans “camp paraphernalia,” including “tarpaulins, cots, beds, sleeping bags, hammocks or non-city designated cooking facilities and similar equipment.”
Bauman said that broad language means a person experiencing homelessness, or anyone else, could potentially violate the ordinance if they have a sleeping bag, blanket or other personal belongings with them in a park that falls in a flood zone.
Depending on how the ordinance is enforced, Bauman said it could potentially violate the Eighth Amendment’s ban on cruel and unusual punishment.
She said the implications of that broad language will largely come down to how the ordinance is enforced.
For example, will the ban on paraphernalia be enforced equally against a homeless individual with a sleeping bag and another person in the park with a picnic blanket?
“There’s risk that people who are homeless will be treated differently for a number of reasons,” Bauman said. “One, just general kind of animus for the unhoused population, but also because this law is written to include such a broad range of activities under its definition.”
Bauman said the city could have done a better job tailoring the ordinance to narrowly ban camping in flood zones when flood risk is high or at night when a person is more likely to be taken unaware by a flash flood.
Beyond the legal implications, Bauman said she also believes the new ordinance is just bad policy for both homeless people and Scottsdale taxpayers.
“Taxpayers pay a really hefty price tag for that type of enforcement, which doesn’t reduce the number of people who live outside and actually does the opposite,” Bauman said.
“Criminal convictions and legal fines are barriers to escaping homelessness and sometimes can be direct barriers to access in housing or employment.”