Landscape Development and Management Practices for Urban Freeway Roadsides (2019)

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D-1 A P P E N D I X D State Practices for Illegal or Unauthorized Use of the Right of Way Appendix D contains examples of state DOT documents pertaining to the management of illegal or unauthorized use of the ROW. Table D1 shows the state agency, source document, and the type of document. These documents are on the respective agency’s website. TABLE D1. Examples of state DOT documents for illegal use of the right of way. State Document Title Document Type California DOT 2015 Maintenance Manual, Chapter 1, Organization and General Details Caltrans Manual Excerpt Florida DOT Title XXVI, Public Transportation, Chapter 337, Contracting; Acquisition, Disposal, and Use of Property Florida Statute Minnesota DOT Unauthorized Encampment Removal from MnDOT Property MnDOT Policy Oregon DOT Highway Division - Chapter 734 Division 20, TRAFFIC CONTROL, 734-020-0095 Prohibited Activities on State Highway Right of Way 1981 Statutory/Other Authority Washington State DOT WSDOT’s Guidelines to Address Illegal Encampments within State Right of Way WSODT Guidelines Washington State DOT Homeless Encampments Realities and Responses 2-page Informative Flyer

D-2 Landscape Development and Management Practices for Urban Freeway Roadsides California California Department of Transportation, “Chapter 1 Organization and General Details,” Maintenance Manual, 2015. [Online]. Available: http://www.dot.ca.gov/hq/maint/manual/2015/3_Chpt-1_July_2015_rev_1-02.pdf. CHAPTER 1 ORGANIZATION AND GENERAL DETAILS July 2015 Page 1-14 (B) Illegal Encampments: As outlined in Maintenance Policy Directive MPD-0901, the following actions shall be taken when abating illegal encampments on Caltrans’ Right-of-Way: Required Actions 1. Actions that SHALL be completed by district Maintenance personnel before clean up of site and/or removal of personal property: A. Adequate prior notices shall be conspicuously posted; however, any health or safety hazard may be removed immediately. The California Highway Patrol (CHP) or local law enforcement shall be present to help post the notices. Video photographic time-stamped images of the posted notices shall be made. Also, the District Hazmat Coordinator or representative shall be present to evaluate the site for public health hazards that may either (1) require immediate remediation or abatement, or (2) require disinfection of the area prior to clean up. Helpful Information These actions are in response to a federal court decision in which Caltrans was a co-defendant. Notices should be enclosed in sheet protectors against weather, and be posted at each point of ingress/egress in a conspicuous manner. After inspection, the District Hazmat Coordinator or designee may require the site be disinfected prior to clean up. A bleach/water solution is typically used. Experience in some districts has shown that 72 hours allows enough time for the occupants to learn of the impending clean up and leave with the items they value, which typically reduces the amount of abandoned materials that require removal. Districts may choose to leave quantity of “Adopt-A-Highway litter bags for use by occupants of the site.

State Practices for Illegal or Unauthorized Use of the Right of Way D-3 California Department of Transportation CHAPTER 1 ORGANIZATION AND GENERAL DETAILS July 2014 Page 1-15 Required Actions II. Before commencing clean up of the encampment, the following precautions shall be taken: A. CHP or local law enforcement shall be present to perform an initial sweep that determines all inhabitants have left, to remove or arrest remaining inhabitants, and to help verify the condition of the area and remaining property. It is required by the federal court that any remaining occupants not detained by law enforcement officers be allowed to remove possessions before any clean up begins to avoid Fourth Amendment issues regarding illegal seizure of personal property. Items abandoned that are of no apparent value or are clearly trash should be disposed of immediately. Any personal property of some apparent value shall be collected and labeled as per Maintenance Manual Volume I, Chapter 1.07.3 (revised 2011). Photographic or video records of the general condition of the encampment and the remaining property shall be made. Items belonging to occupants that are arrested by CHP or other law enforcement are typically collected by them at the time of arrest and remain in CHP or local law enforcement possession until claimed. B. In order to avoid any claims against Caltrans and its employees, no one shall be permitted to begin work while encampment occupants are still present. Personnel shall be trained to handle hazardous materials and wastes, including the use of personal protective equipment and clothing. Review the Code of Safe Practices for Homeless Encampment. C. Clean up (Appendix-revised N), is mandatory. Helpful Information Presence of the CHP and local law enforcement helps Caltrans establish the condition of the camp and the nature of the remaining property. Information such as officer’s name and badge number should be recorded for future reference. Items of personal property collected by CHP or local law enforcement at the time of the arrest are not the responsibility of Caltrans. To minimize the expense of Hazmat contractors, it is recommended that Caltrans’ forces load any materials to be disposed of as hazardous on a contractor’s vehicle for transport for landfill. It is suggested that if multiple encampments exist, that they be scheduled for action within a short timeframe to maximize effect and reduce effort. In order to eliminate any claims of harassment from remaining occupants and to emphasize employee safety, law enforcement should verify that the camp has been vacated. CHP or local law enforcement shall be the authority on site that gives commands to or takes action against remaining occupants.

D-4 Landscape Development and Management Practices for Urban Freeway Roadsides California Department of Transportation Required Actions III. When commencing action: A. Video or still images shall be made to document the general condition of the camp and of any abandoned possessions remaining B. Items of apparent value remaining on site will be collected as per Maintenance Manual Volume I, Chapter 1.07.3. See Items I.A., and II. A., above. C. Video or photo images shall be made of the site after clean up. D. Records retention schedule for each unique file containing encampment clean up records and documents is four (4) years, with archiving thereafter. E. Workers are not to sift through the encampment to find specific items of apparent value, for obvious health and safety reasons. Items of apparent value that require collection shall be readily seen, and not searched for under potentially hazardous cover. Items belonging to occupants that are arrested by CHP or other law enforcement are typically collected by them at the time of arrest and remain in CHP or local law enforcement possession until claimed. Helpful Information A unique file started for each illegal encampment should contain site photos of the posted “Notices to Vacate,” CHP law enforcement participant information, video or pictures, written information on actions taken, Caltrans and other participants present, and actions planned to mitigate against future occupation (including Hazmat and landscape). Collected personal property becomes the responsibility of Caltrans until either claimed by the owner or disposed of after the ninety (90) day waiting period. Persons attempting to reclaim personal property shall be able to describe where and when it was last possessed (the illegal campsite location and a date prior to the site cleanup) and description of the item(s). A copy of the numbered inventory sheet shall be signed and dated by the claimant and serve as a receipt. Former occupants should be able to make arrangements to reclaim property within a reasonable time frame after contacting local Caltrans Maintenance forces, at least within the ninety (90) day period that items are held. Workers shall be aware of the potential hazards from human waste, hypodermic needles, etc., and what actions to take if hazards are uncovered during clean up action. For proper precautions, see item II.B. For Hazmat vendor use, see item II.C. Consideration should be given to instituting a permanent vegetation control policy that discourages re- use of illegal campsites by increasing visibility, and/or limiting access. Such Work is ideally performed after the day of, and not more than two weeks after the initial clean up to avoid re-use of the illegal encampment.

State Practices for Illegal or Unauthorized Use of the Right of Way D-5 California Department of Transportation CHAPTER 1 ORGANIZATION AND GENERAL DETAILS July 2014 Page 1-17 Note: The “Notice to Vacate” templates can be viewed and/or obtained at http://onramp.dot.ca.gov/hq/maint/index.htm Required Actions IV. Post clean up recommendations: A. Regular monitoring of an area by local maintenance representatives should be scheduled to affirm that the mitigating actions have produced the desired results. B. Local landscape policy may need to add seasonal inspections and/or work at prior illegal encampments to ensure that vegetation growth does not again provide concealment. C. Local maintenance forces should confirm that any actions taken to eliminate access are inspected regularly for integrity. Lack of access and increased visibility reduce the chances of future violations. D. Districts may find it to their advantage to participate in meetings or proceedings regarding homeless policy at the local governmental level in order to raise awareness to our issues. Helpful Information Local Maintenance Supervisor or representative. District Landscape Specialist or designee. District Maintenance Supervisor or designee New opportunities for partnership, cooperation and coordination in illegal encampment removal efforts may result. Districts determine who will represent their interests.

D-6 Landscape Development and Management Practices for Urban Freeway Roadsides Florida http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_ String=&URL=0300-0399/0337/Sections/0337.406.html Title XXVI PUBLIC TRANSPORTATION Chapter 337 CONTRACTING; ACQUISITION, DISPOSAL, AND USE OF PROPERTY 337.406 Unlawful use of state transportation facility right-of-way; penalties.— 2. Except when leased as provided in s. 337.25(5) or otherwise authorized by the rules of the department, it is unlawful to make any use of the right-of-way of any state transportation facility, including appendages thereto, outside of an incorporated municipality in any manner that interferes with the safe and efficient movement of people and property from place to place on the transportation facility. Failure to prohibit the use of right-of-way in this manner will endanger the health, safety, and general welfare of the public by causing distractions to motorists, unsafe pedestrian movement within travel lanes, sudden stoppage or slowdown of traffic, rapid lane changing and other dangerous traffic movement, increased vehicular accidents, and motorist injuries and fatalities. Such prohibited uses include, but are not limited to, the free distribution or sale, or display or solicitation for free distribution or sale, of any merchandise, goods, property or services; the solicitation for charitable purposes; the servicing or repairing of any vehicle, except the rendering of emergency service; the storage of vehicles being serviced or repaired on abutting property or elsewhere; and the display of advertising of any sort, except that any portion of a state transportation facility may be used for an art festival, parade, fair, or other special event if permitted by the appropriate local governmental entity. Local government entities may issue permits of limited duration for the temporary use of the right-of-way of a state transportation facility for any of these prohibited uses if it is determined that the use will not interfere with the safe and efficient movement of traffic and the use will cause no danger to the public. The permitting authority granted in this subsection shall be exercised by the municipality within incorporated municipalities and by the county outside an incorporated municipality. Before a road on the State Highway System may be temporarily closed for a special event, the local governmental entity which permits the special event to take place must determine that the temporary closure of the road is necessary and must obtain the prior written approval for the temporary road closure from the department. Nothing in this subsection shall be construed to authorize such activities on any limited access highway. Local governmental entities may, within their respective jurisdictions, initiate enforcement action by the appropriate code enforcement authority or law enforcement authority for a violation of this section. 3. Persons holding valid peddlers’ licenses issued by appropriate governmental entities may make sales from vehicles standing on the right-of-way to occupants of abutting property only. 4. The Department of Highway Safety and Motor Vehicles and other law enforcement agencies are authorized and directed to enforce this statute. 5. Camping is prohibited on any portion of the right-of-way of the State Highway System that is within 100 feet of a bridge, causeway, overpass, or ramp. 6. The violation of any provision of this section or any rule promulgated by the department pursuant to this section constitutes a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, and each day a violation continues to exist constitutes a separate offense.

State Practices for Illegal or Unauthorized Use of the Right of Way D-7 Minnesota Department of Transportation Minnesota Department of Transportation, “Unauthorized Encampment Removal from MnDOT Property,” MnDOT Policies, April 10, 2018. [Online]. Available: http://www.dot.state.mn.us/policy/operations/op014.html.

D-8 Landscape Development and Management Practices for Urban Freeway Roadsides Minnesota Department of Transportation

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State Practices for Illegal or Unauthorized Use of the Right of Way D-13 Oregon Department of Transportation Oregon Department of Transportation, Highway Division - Chapter 734 Division 20, TRAFFIC CONTROL, 734-020-0095 Prohibited Activities on State Highway Right of Way 1981. https://secure.sos.state.or.us/oard/viewSingleRule.action?ruleVrsnRsn=183120 Statutory/Other Authority: ORS 366 Statutes/Other Implemented: ORS 810.030 734-020-0095 Prohibited Activities on State Highway Right of Way (1) The following activities are prohibited on the right-of-way of any state highway as defined by ORS 377.710(34): (a) Lighting of fires; (b) Depositing refuse of any kind except in designated containers; (c) Camping or staying overnight, or any establishment of occupancy or of a residence, whether temporary or permanent; and (d) Erection of any building or facility, including but not limited to tents, shacks, lean-tos, stands or shelters of any kind. (2) This rule does not apply to rest areas covered under OAR chapter 734, division 30. (3) Violation of subsection (1)(c) or (d) of this rule will subject the violating party to a possible citation for criminal trespass under the laws of this state.

D-14 Landscape Development and Management Practices for Urban Freeway Roadsides Washington State Department of Transportation WSDOT’s Guidelines to Address Illegal Encampments within State Right of Way August 22, 2008 Purpose It is WSDOT’s intent to preserve the health and safety of all WSDOT employees and members of the public who are involved with and affected by our work. Loitering or trespassing on WSDOT Right of Way is against the law. WSDOT works with law enforcement to make sure WSDOT right of way is used as it is intended. Areas within WSDOT right of way that are frequented by illegal campers may contain biological and physical hazards in addition to the situations normally associated with construction and maintenance work. To decrease these risks, we will: Identify areas of concern during project design and operations activities planning Develop site specific pre-activity safety plans for work in areas that WSDOT frequently encounters illegal campers. Provide guidelines or specifications in construction contracts and operations plans for the humane and respectful consideration of the illegal campers and their personal items Provide guidelines or specifications in contracts and operations plans for the safe removal and disposal of biohazards in identified areas These Guidelines form the basis for WSDOT work on state-owned right of way and will be revised as necessary to meet the current situation and to reflect the available resources, including budget and staffing. Each Region may exercise its discretion to deviate from these Guidelines if the Region determines that coordination with a local jurisdiction on a specific clean-up activity is the best course of action under the circumstances. However, the activity shall be at least as effective as the provisions contained in these Guidelines. Planning Ensure construction contracts include contract specifications to address the known trespassing conditions. Prior to starting work, require crews to review the appropriate pre-activity safety plan that deals with working in areas with illegal campers. Educate employees on proper methods of communication and interaction with the illegal campers.

State Practices for Illegal or Unauthorized Use of the Right of Way D-15 Washington State Department of Transportation • Review the work schedule and determine work activities that fall within areas frequented by the illegal campers. • Determine dates when work will occur in those areas • When emerging issues, such as storms, accidents, or safety issues arise, advance notification is not required. Prepare, review and follow the preactivity safety plan. Communication • Establish who is responsible for contacting the local jurisdiction. • • • • Coordinate internally with other WSDOT staff, working in the same vicinity, and region maintenance, who may already be communicating or meeting with social service providers. When creating public communication materials, such as construction alerts and clean- up notification signs, consider translation needs and reading levels. Keep the information simple, direct and easy to understand. Use symbols and graphics if possible. Consider requesting social service organizations, including shelters and free health clinics, to post notices of upcoming work at their facilities and on their organization’s Web sites. Document communications effort – who was notified, when they were notified, and a summary of the communication. Each maintenance area or project office shall appoint a contact responsible for encampment removal issues. Clearing Areas of Concern a) Maintenance Activities WSDOT’s maintenance operations activities differ from construction projects. Contractors may be unfamiliar with specific site conditions or areas that are not frequently cleared. Maintenance clean-up operations activities are often in response to complaints from the public and business owners. Several maintenance functions that place our crews in potential contact with illegal campers include: • routine mowing • removing noxious and nuisance vegetation • improving access to road maintenance features such as ditches, catch basins, drains, unstable slopes, fire hydrants, and ornamental and native vegetation • express lanes operations bridge inspection

D-16 Landscape Development and Management Practices for Urban Freeway Roadsides Washington State Department of Transportation • vacant building inspection • electrical systems maintenance • clearing incident scenes Pre-activity safety plans shall take into consideration the potential for interaction with the illegal campers. The 72 hour notification protocol as described in Section 3.B. below will be used whenever possible and practical. If immediate removal of an encampment becomes necessary, we will attempt to notify the local human service advocates prior to clean-up and starting our work. It may not be feasible to post all sites 72 hours before maintenance activities. Crew scheduling, emergency repairs and removal of nuisances are examples where the maintenance activity cannot wait or be predicted. Sites where maintenance occurs on a frequent but random basis will be posted “No Trespassing.” To ensure the safety of WSDOT and all parties, law enforcement may be used to remove illegal campers or those loitering on State right of way. Construction Activities These activities usually allow for more planning and time for notification procedures to take place. At least 72 hours prior to activities, such as brush clearing, post signs in the work area. The signs will include dates and locations of the activity and state that trespassing is not authorized. Keep the signs posted throughout the activity. Notify the local jurisdiction by email that the activity is taking place. Conduct a visual reconnaissance of the area at least 72 hours in advance to determine type of clean up and removal effort needed. At the same time the signs are posted, provide notification to advocacy groups by email of WSDOT’s intent to clear the encampment and enlist their help in the process of notification and relocation. Immediately before brush clearing or other activity, visually inspect the area. Crews should carefully look for signs of illegal encampments prior to performing any work. Trails into the brush, and signs of an encampment, such as tarps or other temporary structures, are indications that people may be present. Continue monitoring throughout each day – especially after long work breaks. • • • •

State Practices for Illegal or Unauthorized Use of the Right of Way D-17 Washington State Department of Transportation Consider using detection aids such as infrared devices or other non- intrusive devices to conduct a sweep of the area before any physical work or machine activity is started. On a daily basis, inspect in and around heavy equipment and other concealed places before commencing work. Do not assume that the noise of equipment or machinery will alert an unauthorized person to the hazards of the work. Always check areas in pairs, never alone. When approaching an area, talk loudly to make people aware that workers are in the area. Identify yourself and state that you are with WSDOT or the construction team and not law enforcement. Never touch blankets or reach into a bag or clothing without proper protection. Wear proper safety equipment. Request law enforcement assistance if needed. Clear the area of all biohazards. All biohazard material and garbage collected from the site will be disposed of at an appropriate disposal site. If personal items remain on-site, WSDOT staff or contracted agents will remove the material in accordance with Section 5 below. After removal of encampments, WSDOT shall revisit the site at regular intervals. If encampments in the area persist, WSDOT will permanently post the site, with “no trespassing” signs, and removal efforts may proceed without 72 hour notification. Securing the Area After clearing the area of all biohazards, secure the area with fencing if necessary and practical. An off-duty police officer or security patrol can also be used to secure the work area. Communicate with advocacy groups for their advice and assistance in getting the word out to the community about construction activities. Maintain security of area until work is complete. It may be necessary to conduct additional clearing of biohazards, visually survey the area, or use infrared detection equipment to clear the work zone. Removal of Refuse and Personal Property from Active Encampments and WSDOT Right of Way WSDOT maintenance offices or contracted agents will schedule the removal of material remaining at the site. Garbage and refuse will be removed and disposed of off-site. • • • • • • • • • •

D-18 Landscape Development and Management Practices for Urban Freeway Roadsides Washington State Department of Transportation WSDOT intends to follow the applicable provisions of RCW 63.21.060 and RCW 63.32.010 with respect to the acquisition of lost property found within WSDOT right of way. The right of way includes encampment areas and public passageways, such as streets and sidewalks within WSDOT’s jurisdiction. Lost personal property may include radios, audio and video equipment, sleeping bags, tents, stoves and cooking utensils, lanterns, flashlights, bed rolls, tarps, foam, canvas, mats, blankets, pillows, medication, personal papers, photographs, books and other reading materials, luggage, backpacks or other storage containers, clothing, towels, shoes, toiletries and cosmetics, clocks and watches, and eye glasses. At least 72 hours prior to clean-up activities, WSDOT shall post a notice at the encampment area that contains the following information: Identification of WSDOT as the agency responsible for the clean-up; • Date the notice was given; • Date or dates on which the clean-up will occur; • Phone number for storage location. The storage location may be a local WSDOT facility or other local site as designated by WSDOT; That the items will be stored for a maximum of 70 days and if unclaimed within that time, will be disposed of by WSDOT. Personal property items that are not refuse, contaminated, illegal, or hazardous shall be placed in large transparent plastic bags. Reasonable efforts should be made to place all items from each camp or sleep site into a separate bag. The personal property will be inventoried to include the date, location and brief description of the item that was placed in the bag. WSDOT staff and its contracted agents shall not open closed items of personal property, unless in their determination it is necessary to do so to protect public safety. Storage and Return of Personal Property WSDOT maintenance offices or contracted agents will schedule the storage and return of personal property. WSDOT shall use reasonable efforts to protect the personal property from adverse weather conditions. When a person comes to retrieve the items of personal property, he or she must identify them. The employee may not require the person to show personal identification, but the person must be able to identify key items. A log shall be maintained that reflects that the person has reclaimed his or her property. For a period of not less than ten (10) days after acquisition of the property, WSDOT shall attempt to notify the apparent owner of the property and make arrangements for the return of the item, regardless of the value of the item. If the property is not returned to a person validly establishing ownership or right to possession of the property, WSDOT shall retain the property for an additional sixty (60) • • • • • • • • • • • days. If the property shall remain unclaimed during the additional sixty (60) day period, and has no substantial commercial value, WSDOT may dispose of the property in a manner it deems appropriate.

State Practices for Illegal or Unauthorized Use of the Right of Way D-19 Washington State Department of Transportation FIGURE D1 Page 1 of WSDOT Flyer

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