This commentary is by Sandy Dooley, a 50-year resident of South Burlington, vice chair of the city’s Affordable Housing Committee, and a former city councilor.
First of all, I write to commend South Burlington City Attorney Colin McNeil and Police Chief Shawn Burke on the content of the eight-page “Enforcement and Removal Policies and Procedures Relating to Unauthorized Campsites on City Properties,” which they presented to the City Council on Nov. 21, 2022 (see pages 125-132).
The procedures proposed are sensible, compassionate and comprehensive. The need for the procedures flows from changing circumstances; as stated in Section 1: “Like other communities throughout Vermont and the United States, the City of South Burlington is experiencing an increase in the levels of individuals experiencing homelessness, including a growing number of unauthorized campsites on public property.”
The agenda item describing attorney McNeil’s and Chief Burke’s presentation reads as follows: “Receive a proposed Encampment Ordinance (emphasis added) and provide direction to staff.” However, at the beginning of the presentation, attorney McNeil stated that the term ordinance no longer applied as, instead, they were proposing that the City Council adopt the proposed “policies and procedures” as a “policy” and not an “ordinance.”
He added that, as the city already has an ordinance giving it the authority to remove encampments, it is not necessary to adopt the proposed “policies and procedures” as an ordinance.
My research suggests there is a strong rationale for adopting the proposed “policies and procedures” as an ordinance. As some may recall, the city of Burlington removed an encampment of individuals off Sears Lane in November 2021. Prior to Burlington’s action, two residents of the encampment filed a lawsuit against the city, stating its proposal to remove the encampment was a violation of the city’s policy on encampment removal. One of the city’s counterarguments was that the residents had no standing to initiate a lawsuit because the encampment “policy” was a “policy” and not an “ordinance” and, therefore, did not have the force of law.
Quoting Burlington City Attorney Dan Richardson, “Since a policy does not give people rights in the same way that an ordinance or law does, campers cannot get relief from their removal based on whether or not the city adhered to its policy.” In his decision dated Nov. 1, 2021, Chittenden Superior Court Judge Samuel Hoar Jr. wrote “Plaintiffs claim that the city has violated its ‘sheltering on public lands policy.’ They have not shown, however, that the policy creates any legally enforceable rights.” “
According to Hoar, the campers could be awarded damages if they prove the city’s policy:
- Was an ordinance holding “the force of law”
- Or, served as a contract between campers and the city
- Or, mandated that the city act in a certain way.
Since the policy did not meet any of these standards, the city was not under any obligation to follow it, meaning that the campers likely won’t win their lawsuit.” Burlington went forward and removed the Sears Lane encampment.
To address the lack of enforcement or accountability apparently inherent in a “policy” vis-à-vis an “ordinance,” on Feb. 7, 2022, the Burlington City Council approved an encampment ordinance, whose content is in many respects similar to the content of the “policy” put forth by attorney McNeil and Chief Burke.
It is difficult to read Judge Hoar’s decision and be confident that the “policy” attorney McNeil and Chief Burke have proposed has the force of law or meets either of the other two criteria cited in Hoar’s decision.
Individuals who live in encampments are among the most vulnerable residents of our community. Any procedures the City Council adopts relative to removal of encampments should have the force of law.
This should not be read as any lack of confidence in our police officers’ intent or capacity to follow the procedures as defined. However, as we all know, from time to time, mistakes happen. And should they happen, the residents of the encampment should have the right to seek redress in a court of law. For your information, the South Burlington City Council is expected to act on the “proposed policy” at its meeting Dec. 19, 2022. I encourage anyone interested in this matter to communicate their views to one or more of our City Councilors. Their names and contact information can be found on the South Burlington city government’s website.
