SAN DIEGO (CN) — Calls by homeless activists Tuesday to sue San Diego again if it approves a revamped ordinance outlawing living in vehicles, in an attempt to pass constitutional muster, were not strong enough to dissuade the City Council from voting to adopt its new vehicle habitation ordinance.
After hours of testimony, the City Council voted 6-3 in favor of a new vehicle habitation ordinance, which prohibits people from living in cars parked near schools or homes. The new ordinance requires they be at least 500 feet away — about a city block.
Council members Chris Ward and Monica Montgomery and Council President Georgette Gomez voted against the ordinance. Ward said he did not think the ordinance was “defensible and enforceable,” and that any city law must be “just and constitutional.”
“There is a more perfect way to do this,” Ward said.
The proposed ordinance was amended during the hearing to prohibit people living in cars from parking on any city street between 9 p.m. and 6 a.m. The original draft set the ban between 6 p.m. and 6 a.m. but council members Scott Sherman and Jennifer Campbell opposed it.
The city says the goal of the new ordinance is not to be punitive. Assistant Police Chief Paul Connelly told the council the goal is to seek compliance and help people living in vehicles connect with homeless service providers.
Connelly said officers would “use sound judgment” when documenting whether someone was living in a vehicle in violation of the ordinance, and that people would be given a written warning and connected to “safe park lot” services, where people can park legally, before being ticketed.
But the ordinance explicitly states it may be enforced as a misdemeanor or infraction and offenders “may be eligible for referral to a diversion program, when appropriate.”
Jewish Family Service contracts with the city to operate 120 parking spaces in safe park lots, where people living in vehicles can park and get connected to services. The city is slated to open another lot in June.
The Tuesday vote follows a closely watched legal battle that’s been playing out in federal court since 2017, when a group of disabled RV-dwellers won an injunction against the city’s previous vehicle habitation ordinance, forcing the city to abandon ticketing and impounding vehicles.
In February, the City Council voted unanimously to repeal that ordinance, which a federal judge blocked it from enforcing last year because it violated the Constitution and was “both vague on its face and is being arbitrarily enforced.”
When asked Tuesday by Councilman Mark Kersey if the new ordinance was legally defensible, Elliott said that it was.
City staff told Kersey that unlike the old ordinance, the new one prevents vehicle impoundment because it is not being treated like a parking violation.
The new ordinance includes a list of factors for police to use determine whether someone is living in their vehicle, such as possessing or storing items such as bedding, cookware, food and water, grooming items or containers of human waste. Activities such as sleeping, bathing or preparing meals can be used to assess whether someone is living in a car.
Kersey, who said when he voted to repeal the previous ordinance he’d “100%” rather have someone living in their car than on the street, reiterated a version of that message Tuesday.
“It’s absolutely true we’d rather have people sleeping in cars or RVs than on sidewalks,” Kersey said.
However, “We cannot have unfettered parking throughout the city. We need to do this in a controlled way. … We’re not looking to generate ticket revenue. We want to balance the rights of people in neighborhoods and people living in their cars,” he said.
Disability Rights California attorney Ann Menasche represented the plaintiffs in the class action that challenged the previous vehicle habitation ordinance. She told Courthouse News they were considering how to handle the new ban with the pending class action.
“This isn’t exactly what I would call a conciliatory gesture on the part of the city,” said Menasche, who has attended multiple unsuccessful settlement conferences with the city.
“If this issue comes before the court again, we can strike multiple holes into this ordinance as unconstitutional and discriminatory,” she added.
The City Council is expected to receive a report on how the ordinance is being implemented in 90 days.