Originally published on May 4th, 2023. Updated on May 24th, 2023

What is the City of Creswell’s definition of camping?

Per the City of Creswell Municipal Code, “to ‘camp’ means to set up or remain in or at a campsite (CMC 9.05.460.A.1).”

What is the City of Creswell’s definition of a campsite?

Per the City of Creswell Municipal Code, “’Campsite’ means any place where any bedding, sleeping bag, or other material used for bedding purposes, or any stove or fire is placed, established, or maintained for the purpose of maintaining a temporary place to live, whether or not such place incorporates the use of any tent, lean-to, shack, or any other structure, or any vehicle or part thereof (CMC 9.05.460.A.2).”

What is the City of Creswell’s current ordinance on camping in public areas?

Per the City of Creswell Municipal Code, “no person shall camp in or upon any sidewalk, street, alley, lane, public right-of-way, park, or any other publicly owned property or under any bridge or viaduct, unless otherwise specifically authorized by this code or by declaration of the mayor in emergency circumstances (CMC 9.05.460.C).

What will the Creswell City Council be voting on?

They will be voting on an ordinance that amends the Creswell Municipal Code 9.05.460, CMC 9.30.020.A, CMC 9.30.020.L, and CMC 10.10.070, to meet the requirements of Oregon state law 195.530 and will establish “reasonable” time, place and manner requirements for unhoused individuals to rest on public property.

Why is Creswell City Council amending these ordinances?

The Council is considering the draft ordinance to be in compliance with ORS.195.530, which goes into effect on July 1st of 2023, particularly the section that reads “Any city or county law that regulates the acts of sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to the public must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness.” The decision to amend public resting ordinances was not one pursued by the Creswell City Council but one placed upon them to align with the guidelines set in ORS 195.530.

What would happen if Creswell City Council elects to maintain the current resting ordinance?

ORS 195.530 (4) reads, “A person experiencing homelessness may bring suit for injunctive or declaratory relief to challenge the objective reasonableness of a city or county law described in subsection (2) of this section. The action must be brought in the circuit court of the county that enacted the law or of the county in which the city that enacted the law is located.” And ORS 195.530 (6) states, “In any suit brought pursuant to subsection (4) of this section, the court, in its discretion, may award reasonable attorney fees to a prevailing plaintiff.” Refusal to comply with ORS 195.530 may result in lawsuits being filed against the City of Creswell for not providing “reasonable” time, place, and manner for an unhoused individual to rest.  

What would happen if the City of Creswell refuses to comply with the new law?

There is no automatic penalty or violation that springs up if the City does not comply with ORS 195.530 on July 1, 2023.  Instead, failing to comply with ORS 195.530 opens the City up for the possibility that someone will sue the City for failing to come into compliance with the law.  In addition, after July 1, 2023, if the City’s resting regulations are not “objectively reasonable” as defined in ORS 195.530, then someone cited into Municipal Court for a violation of the City’s resting regulations would be able to raise an affirmative defense to the citation that the City’s regulations are not objectively reasonable. 

As to what a future lawsuit might look like against the City, it is difficult to predict the full contours of a possible lawsuit against the City related to its regulation of persons experiencing homelessness.  It is also very difficult to predict future litigation costs for claims that have not yet been filed; there are many different variables that go into the costs of litigation. However, there are two primary paths that a lawsuit against the City could take.

1. ORS 195.530 (AKA HB 3115) provides a mechanism for a person to sue the City for having regulations that are not objectively reasonable.  The suit under the statute would be for injunctive relief, meaning that it would not be a claim for money damages but a claim for a judge to rule on whether the particular regulation is objectively reasonable.  If the regulation was found to be not objectively reasonable, then the court could direct the City to come into compliance with the law (e.g., change the code).  The statute also allows a court to award attorney fees to a plaintiff that prevails in such a case.  A “simple” case could easily result in attorney fees between $30,000 – $40,000.  A more complex case could be 3 – 5 times that amount.  If the plaintiff prevails and the court awards attorney fees, the City would be responsible to pay its own attorneys as well as the plaintiff’s attorneys.  Because this claim does not seek money damages, it is very likely that this lawsuit would not be covered by CIS, so there would be no insurance benefits available in this type of lawsuit.  If the City refused to thereafter come into compliance with the court’s ruling, then the City could be the subject of a contempt of court order which could involve the assessment of fines against the City.

1. A claim brought under ORS 195.530 is not the only possible claim that the City could face if a plaintiff believes its regulation of persons experiencing homelessness are unreasonable.  A plaintiff could file a lawsuit in federal court, like the plaintiffs did in the Boise and Grants Pass cases.  Such a case would also provide for the possibility that the court would award attorney fees to the plaintiff, but these federal lawsuits also allow for a claim of money damages.  If a claim were filed for money damages, it is possible that CIS would provide coverage, but coverage might be limited if the City’s position was clearly contrary to ORS 195.530 (e.g., not allowing camping anywhere in the City).  A federal claim would likely be much more expensive than a claim under ORS 195.530.  Taking a case to trial in federal court could easily surpass $100,000.  By way of example, the plaintiffs in the Grants Pass case were awarded attorney fees in the amount of $300,000 after the original trial court matter in October, 2020 (which did not even go to trial) – this award does not include fees that could be awarded as a result of the appeal or any proceedings on remand back to the trial court.

What is the difference between ORS 195.530 and the proposed Right to Rest Bill?

The Right to Rest Bill, which is no longer moving forward, would have granted those experiencing homelessness the right to rest on any public property, regardless of public input or ruling by local government. ORS 195.530 only protects unhoused individuals’ right to rest while granting local jurisdictions flexibility on time, place, and manner in which the individual may rest. This gives cities the freedom to decide whether to decriminalize resting in all public spaces or to decriminalize it in designated spaces.

Can the City of Creswell appeal against this law?

This is a state law passed by the legislature. It cannot be appealed.

Why is the City of Creswell considering setting up a camp for unhoused individuals in Garden Lake Park? The new law does not specify that cities need to have a designated place for them.

The City of Creswell is not proposing to set up a camp for unhoused individuals, nor is it planning to offer any services.  The original proposal lists Garden Lake Park as a site where camping would be decriminalized. The reasoning behind this was that the homeless are already using the park for camping, there are restrooms, water, and a dumpster there.  Additionally, there was concern for other publicly owned property being used for “resting” due to the presence of playgrounds or sensitive infrastructure. The City Council has received significant feedback regarding use of Garden Lake Park. During the May 8th, 2023 City Council meeting, Councilor Nick Smith made a motion to amend the language to exempt Garden Lake Park from consideration as a designated resting spot. It was officially removed from consideration at the May 22nd, 2023 City Council Work Session.

Why couldn’t the mayor veto the proposed ordinance?

The Creswell Charter does not give the mayor veto power. The mayor’s vote counts the same as every other councilor.

What other alternatives are available?

During the May 22nd, 2023 City Council Work Session, Mayor Dave Stram proposed decriminalizing resting at the Pocket Park on South 1st Street. This would accommodate up to seven unhoused individuals and establish a place in accordance with ORS 195.530. The Creswell City Council remained divided on the matter and requested that City Manager Michelle Amberg and the city attorney draft two ordinance proposals to be voted on during the June 12th City Council Meeting. The first proposed ordinance would designate the Pocket Park on South 1st Street as a place where public resting would be decriminalized while the second proposal would not designate a specific resting place. The city attorney did express concern that the latter proposal would be difficult to defend in court should a lawsuit be filed against the City of Creswell.

How would the Pocket Park on South 1st Street be maintained should Creswell City Council elect to designate it as a place for resting?

Public Works and the Creswell Deputies will patrol the park and will address illegal acts such as vandalism, littering, etc.

Will camping be allowed in all parks if the changes go through?

Both proposed ordinances will be written to specify that all other parks will retain their non-camping status.

Would the City of Creswell receive any state or federal funding if the proposed ordinance to designate the Pocket Park on South 1st Street were to pass?

No, the City of Creswell would not receive any state or federal funding for passing the ordinance.

Will the City of Creswell be transporting unhoused individuals in from other towns if a place is designated for resting?

No, the City of Creswell will not be transporting unhoused individuals in from other towns. We are aware that there has been a rumor travelling around social media that the City of Creswell is working with the City of Eugene to transport 3,000 unhoused individuals into town should a resting place be designated. This rumor is false. The City of Creswell urges residents to contact City Hall if they have any questions about information that has not been communicated through official City of Creswell channels (such as official City social media or the City’s website).