Encampments of Unhoused Individuals in Transportation Rights-of-Way: Laws and State DOT Practices (2022)

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NCHRP LRD 87 19 property will be stored and how it can be retrieved. Similar provisions apply for the removal of encampments as a whole; however, the city did establish a reporting mechanism to note the existence of an encampment and proceed with cleanup. A notice must be placed at least 72 hours before the removal of the encampment. Alternative shelter will be oered to residents of the encampment, but the city is not required to provide shelter to those who have previously been excluded from shelters due to behavior.147 e rule includes a number of other provisions related to the necessary outreach and details the rules surround- ing cleanup, storage, and return of personal property, as well as requirements for post-removal notices. III. STAKEHOLDER RECOMMENDATIONS, CURRENT PRACTICES, AND IMPLEMENTATION EXPERIENCES e research team surveyed all U.S. state DOTs to deter- mine state DOT practices, procedures, and policies for preven- tion and removal of unauthorized access to the right-of-way and authorized use of the right-of-way for shelters. is sec- tion provides a description of the online survey, a description of how the research team conducted the online survey, and a summary of ndings, including key issues and stakeholder recommendations. e research team also conducted interviews to determine local practices, procedures, and policies for prevention and re- moval of unauthorized access to the right-of-way and autho- rized use of the right-of-way for shelters. is section provides an overview of policies, practices, and procedures for the man- agement of illegal/unauthorized use of the right-of-way and current practices by state DOTs based on feedback provided by survey and interview participants. A. Online Survey e magnitude of unauthorized access to the right-of-way varies signicantly from state to state. Some state DOTs have observed no or little unauthorized access to the right-of-way, while other state DOTs and metropolitan areas have managed the issue for years and have developed proactive policies and procedures. e survey identied states that consider unauthor- ized access to the right-of-way an issue and informed the legal review of statutory laws, regulations, and case laws to focus on in states that developed corresponding rules. e survey aimed to identify states that have implemented innovative practices or other noteworthy policies warranting in-depth review, and to identify appropriate contacts for follow-up interviews. e research team sent email invitations to participate in the web-based survey questionnaire to the standing members of the AASHTO Committee on Right of Way, Utilities, and Outdoor Advertising, and the AASHTO Committee on Maintenance. In total, the research team contacted 233 state DOT ocials. e survey opened on May 4, 2021, and the research team received the last survey response on June 21, 2021. In total, 24 state DOTs 147 Id. other resources. e team conducts outreach services and case management, provides street medicine, and has specic inclem- ent weather protocols for each unit. SCRT is a city-wide crisis team led by the Department of Public Health that diverts calls from the San Francisco Police Department to better serve un- sheltered individuals.140 e team is part of eorts to establish a health-rst response that reduces law enforcement response to non-violent activities. HSOC, a collaboration between over 11 city agencies, works to address large encampments to protect health and safety. Part of its eorts include a bi-monthly count of tents, structures, and vehicles that are then reported through an online dashboard.141 During COVID-19, the city altered protocols to maintain social distancing and ensure the health and safety of its unsheltered residents. e shelter system worked at limited capacity due to social distancing requirements, and the city utilized trailers and established the Safe Sleep program to address the short- age of space.142 e Safe Sleep program created safe and clean spaces to sleep with access to services and sanitation for those who could not be accommodated by shelters. e City of San Francisco and its community partners manage the Safe Sleep Villages, which allow unsheltered individuals to camp in desig- nated places across the city. d. City of Seattle, Washington In 2017, Seattle adopted Rule 17-01, which relates to un- authorized camping on city properties, enforcement proce- dures, and removal of property.143 e purpose of the rule is “to establish uniform rules and procedures for addressing encamp- ments” for a variety of agencies that own property within the City of Seattle, including the Parks and Recreation Department, Public Utilities, and the city’s DOT.144 MDAR 17-01 states that all departments should follow the Encampment Cleanup Rule 17-01 adopted by the Department of Finance and Administra- tive Services (FAS).145 FAS allows for the immediate removal of an obstruction, such as a tent, shelter, or encampment, from public property.146 If the obstruction is not immediately re- moved, a notice must be placed explaining that the obstruction is subject to immediate removal without further notice and pro- viding information on the date posted as well as where personal 140 San Francisco Department of Public Health. Street Crisis Response Team Issue Brief: Mental Health San Francisco Implementation Working Group. 2021. 141 Tent, Structure, and Vehicle Count, Healthy Streets Opera- tion Center https://app.powerbigov.us/view?r=eyJrIjoiNjk0NDRkN- WItM2ExOS00Mjc4LTlkN2UtZmY5NTFjMjdjYjgwIiwidCI6IjIyZD- VjMmNmLWNlM2UtNDQzZC05YTdmLWRmY2MwMjMxZjc- zZiJ9. (Last visited July 29, 2021.) 142 Homeless Shelter System: Recovery and Expansion. City of San Francisco https://sf.gov/data/homeless-shelter-system-recovery-and- expansion. (Last visited July 29, 2021.) 143 Seattle, Wash., Multi-Departmental Administrative Rules § 17-01 (2017). 144 Id. 145 Id. 146 Seattle, Wash., Department of Finance and Administra- tive Service Rules § 17-01 (2017).

20 NCHRP LRD 87 C. Key Issues Survey respondents were asked to describe typical issues when dealing with the management of unauthorized access to the right-of-way. Survey responses typically fell into one of three categories: • Management of the unsheltered population encampments. • Concerns about safety and crime. • Concerns about agency liability and legal processes. Survey respondents provided a variety of responses related to the management of unsheltered population encampments, as summarized in Table 1. The table lists issues ordered by the count of responses that mentioned the issue. Actual survey re- sponses for this category and the following categories are in- cluded in Appendix B. Most frequently, DOTs mentioned the issue of dealing with trash, litter, and debris removal. Related to the issue are con- cerns about time and resources that the DOT must expend to deal with the issue. DOTs also frequently mentioned a general lack of staff with the skills to deal with the problem and a lack of training to improve the skills of existing staff; this might con- tribute to the fact that staff are often unmotivated or even un- willing to get involved with this type of issue. DOTs were also concerned about unsanitary conditions and that DOT staff might come into contact with hazardous materials, including hypodermic needles. DOTs mentioned that hands-on dealing with unsheltered populations involves dealing with people that might be difficult, contentious, or even hostile, and frequently involves people with mental health issues. In addition, DOTs mentioned a lack of available social services or shelters and, more specifically, culturally appropriate shelters, for example when dealing with unsheltered Native Americans. responded to the survey, as shown in Figure 2. In several cases, more than one official from a state DOT responded to the sur- vey. In that case, the research team reviewed responses to create a uniform state DOT response. In some cases, this required a follow-up with survey participants to clarify a response. A copy of the survey questionnaire, including the email sent to potential participants, the reminder email sent to unrespon- sive participants, and the survey form, is included in Appen- dix A. A copy of responses by survey participants is included in Appendix B. B. Follow-Up Interviews Following the online survey, the researchers selected state DOTs for a follow-up interview regarding laws, practices, and policies and/or procedures governing illegal/unauthorized use of the transportation right-of-way. Based on survey responses, the research team developed a list of interview questions and selected interviewees that had established innovative practices and unique approaches toward the management of unauthor- ized access to the right-of-way and use of the public right-of- way for homeless shelters that might be of interest to other transportation agencies. In-depth questions for the follow-up interviews also considered findings from the analysis of federal, state, and local laws. The goal of interviewing participants was to confirm ques- tionnaire results and obtain additional information beyond the information provided in the questionnaire. During the inter- views, the research team discussed lessons learned and current practices and requested available documentation as appropri- ate. Interviews were conducted using phones and online meet- ing software. A copy of the list of questions for the interviews is included in Appendix C. - 35 - Figure 2. State DOTs responding to the survey. B. Follow-Up Interviews Following the online survey, the researchers selected state DOTs for a follow-up interview regarding laws, practices, and policies and/or procedures governing illegal/unauthorized use of the transportation right-of-way. Based on survey responses, the research team developed a list of interview questions and selected interviewees that had established innovative practices and unique approaches toward the man gement of unauthorized access to the right-of-way and use of the public right-of-way for homeless shelters that might be of interest to other transportation agencies. In-depth questions for the follow-up interviews also considered findings from the analysis of federal, state, and local laws. The goal of tervi wing participants was to confirm questionnaire results and obtain additional information beyond the information provided in the questionnaire. During the interviews, the research team discussed lessons learned and current practices and requested available documentation as appropriate. Interviews were conducted using phones and online meeting software. A copy of the list of questions for the interviews is included in Appendix C. C. Key Issues Survey respondents were asked to describe typical issues when dealing with the management of unauthorized access to the ight-of-way. Survey responses typically fell into one of three categories: • Management of the unsheltered population encampments. • Concerns about safety and crime. TX CA MT AZ ID NV NM CO IL OR UT KS WY IANE SD MN ND OK FL WI MO WA AL GA AR LA MI IN PA NY NC MS TN VA KY OH SC ME WV VT NH MI MD NJ MA CT DE RI AK HI Survey Response Yes No Figure 2. State DOTs responding to the survey.

NCHRP LRD 87 21 right-of-way, having the legal authority to remove unsheltered individuals, ensuring due process, and using contractors for cleanup activities once unsheltered populations are removed from a site. Compared to the mentioning of other issues, these types of issues were mentioned infrequently. D. Policies, Practices, and Procedures of State DOTs Survey participants were asked to describe policies, practic- es, and procedures at state DOTs related to unsheltered popula- tions in the right-of-way. The survey asked respondents to dis- cuss policies, practices, and procedures that: • Manage unauthorized access. • Prevent unauthorized access. • Are used to remove unauthorized access. Less frequently, DOTs mentioned a concern about coordi- nating effectively with local agencies, interference with DOT construction and maintenance activities, and availability of law enforcement to deal with unsheltered populations. Table 2 summarizes DOT concerns related to safety and crime. Most frequently, DOTs mentioned a concern about chemical or substance abuse and drug dealing at unsheltered encampments. Less frequently, DOTs mentioned concerns for the physical safety of the unsheltered population, including prostitution and human trafficking, as well as concerns for the safety of adjacent neighborhoods. Table 3 summarizes DOT concerns related to DOT liability and appropriate legal processes. Examples of issues include con- cerns for holding the personal property of the unsheltered pop- ulation during and following the removal from an unauthorized Table 1. Responses Mentioning Issues with Managing Encampments Issue Count Trash, litter, and debris removal 10 Time and resources for cleanup or to address issue, including personal protective equipment (PPE), dump fees, hazardous material disposing, and equipment cleaning and sanitization 7 Lack of staff with skills to deal with the problem, lack of training, and staff morale/unwilling 5 Dealing with persons that are difficult, contentious, hostile, or have mental health issues 4 Lack of shelters or social services (including lack of culturally appropriate shelters for homeless Native Americans) 3 Impact or damage to signs and structures 3 Inability to provide sanitation needs/unsanitary conditions 3 Concern that maintenance workers come into contact with homeless individuals, hazardous materials, hypodermic needles, etc. 3 Reoccupation of cleared sites 2 Dealing with citizen complaints about encampments and public concerns 2 Environmental damage or degradation 2 Data sharing with local and state agencies 1 Coordination with local agencies 1 Concern that moving/displacing homeless individuals will cause harm or stress on homeless individuals 1 Interference with construction and maintenance activities 1 Dealing with animals 1 Availability of law enforcement to deal with encampments 1 Table 2. Concerns about Safety and Crime Issue Count Chemical or substance abuse, drug use, and drug dealing 5 Physical safety and other safety concerns for the homeless population 2 Prostitution and human trafficking 2 Adjacent neighborhood safety concerns 1 Concern for increased crime 1 Parked or abandoned RVs 1

22 NCHRP LRD 87 2. Prevention of Unsheltered Populations in the Right- of-Way Survey participants were asked about how they actively pre- vent unauthorized access to the right-of-way. The most frequent response by state DOTs was the use of signs and fencing, fol- lowed by strategic vegetation management. The latter might involve pruning or clearing of brush, trimming of trees, and mowing of grass. State DOTs also mentioned the use of struc- tural designs that limit spaces for occupation, in particular with bridge abutments. Less frequent mentions of practices and pro- cedures included the use of area policy patrols and demolish- ing structures quickly after the DOT acquires them. Figure 3 provides an overview of practices and procedures sorted by the frequency with which a practice or procedure was mentioned by survey respondents. Some DOTs offered additional insight during interviews with state officials. For example, WSDOT mentioned that pro- actively managing the issue avoids many problems once an encampment becomes established. Proactive management in- volves actively looking for unauthorized use of the right-of-way and clearing sites before they grow in size. 3. Removal of Unsheltered Populations in the Right-of- Way Survey participants were asked about how they remove unauthorized users of the right-of-way. The most frequent response by state DOTs was to request assistance from law enforce ment. Many DOTs also responded that they request Policies are typically applied consistently statewide. Some states choose not to enforce property laws in the case of un- lawful encampments unless traffic flow is impeded or there is a danger to the traveling public, which may be rare. The following subsections summarize responses; actual survey responses are provided in Appendix B. 1. Managing Unsheltered Populations in the Right-of- Way The most common response by state DOTs on how to man- age the issue of unsheltered populations in the right-of-way was to notify law enforcement. Several DOTs mentioned that they are actively aligning the DOT’s policy with local jurisdiction policies, and WSDOT is currently reassessing its policy. Some states, for example Indiana, are in the process of implementing new guidelines. A few DOTs mentioned a lack of written guidance on how to deal with the issues, mainly because unsheltered populations on highway rights-of-way are not a frequent issue in that state. Table 4 provides an overview of practices and policies and lists the state DOTs that mentioned each practice or policy. Some DOTs offered additional insight during interviews with state officials. For example, WSDOT indicated that the number of people experiencing homelessness appears to be in- creasing in many states on the West Coast, and encampments can be found along freeways, noise walls, interchanges, over- passes, and other open areas, including both state rights-of-way and urban corridors. Table 3. Concerns about Agency Liability and Legal Processes Issue Count Holding personal property following cleanup 2 Lack of authority to remove homeless individuals and their belongings 1 Ensuring due process 1 Use of contractors for cleanup 1 Table 4. Practices and Policies for Managing Unsheltered Populations in the Right-of-Way Practice or Policy State Notify law enforcement of homeless issue Arizona, Kansas, Maryland, Oregon, and Wisconsin Align policies with local jurisdiction policies District of Columbia, Georgia, and Washington Give 10- or 30-day notice before starting removal Maryland, Oklahoma, and Oregon Internal policy/guidance Delaware and Indiana Clear site and cure issues after removal Ohio and Oklahoma Notify and reach out to social services agencies Ohio Reassessing internal policy Washington Only get involved in safety or engineering issue Colorado

NCHRP LRD 87 23 assistance from social services agencies or homeless shelters. Some states mentioned that they will give a posted notice, usu- ally 10 days or 30 days, or conduct outreach activities before starting the removal process. One DOT mentioned that unshel- tered encampments tend to be removed in one area only to be established in a dierent area, without a solution to the prob- lem. Figure 4 provides an overview of practices and procedures sorted by the frequency with which a practice or procedure was mentioned by survey respondents. Some DOTs oered additional insight during interviews with state ocials. For example, unlawful occupants of the right-of-way in Washington are given a 72-hour notice before removal. Property that is removed from a site during the re- moval process is stored for up to three months. WSDOT has contractors on call to clean up sites aer they have been vacated. For WSDOT, encampment cleanup depends on the local jurisdiction’s ability to partner and help relocate the aected population to more suitable local locations. Some of the cities in Washington are beginning to construct housing and designated camping areas for these individuals. Figure 3. Practices and procedures for the prevention of unsheltered encampments in the right-of-way. - 39 - . Prevention of Unsheltered Populations in the Right-of-Way Survey participants were asked about how they actively prevent unauthorized access to the right-of-way. The most frequent response by state DOTs was the use of signs and fencing, followed by strategic vegetation management. The latter might involve pruning or clearing of brush, trimming of trees, and mowing of grass. State DOTs also mentioned the use of structural designs that limit spaces for occupation, in particular with bridge abutments. Less frequent mentions of practices and procedures included the use of area policy patrols and demolishing structures quickly after the DOT acquires them. Figure 3 provides an overview of practices and procedures sorted by the frequency with which a practice or procedure was mentioned by survey respondents. Figure 3. Practices and procedures for the prevention of unsheltered encampments in the right-of-way. Some DOTs offered additional insight during interviews with state officials. For example, WSDOT mentioned that proactively managing the issue avoids many problems once an encampment becomes established. Proactive management involves actively looking for unauthorized use of the right-of-way and clearing sites before they grow in size. . Removal of Unsheltered Populations in the Right-of-Way Survey participants were asked about how they remove unauthorized users of the right-of-way. The most frequent response by state DOTs was to request assistance from law enforcement. Many DOTs also responded that they request assistance from social services agencies or homeless shelters. Some states mentioned that they will give a posted notice, usually 10 days or 30 days, or conduct outreach activities before starting the removal process. One DOT mentioned that unsheltered encampments tend to be removed in one area only to be established in a different area, without a solution to the problem. Figure 4 provides an overview of practices and procedures sorted by the frequency with which a practice or procedure was mentioned by survey respondents. Figure 4. Practices and procedures for the removal of unsheltered encampments in the right-of-way. - 40 - Figure 4. Practices and procedures for the removal of unsheltered encampments in the right- of-way. Some DOTs offered additional insight during interviews with state officials. For example, unlawful occupants of the right-of-way in Washington are given a 72-hour notice before removal. Property that is removed from a site during the removal process is stored for up to three months. WSDOT ha contractors on call to clean up sites after they have been vacated. For WSDOT, encampment cleanup depends on the local jurisdiction’s ability to partner and help relocate the affected population to more suitable local locations. Some of the cities in Washington are beginning to construct housing and designated camping areas for these individuals. WSDOT was the subject of a lawsuit from advocacy groups with regard to its encampment cleanup practices.148 The lawsuit involved the way WSDOT handled the belongings of campers when conducting the site cleanup. The lawsuit was dismissed, but development and implementation of official policy and procedures were on hold until the lawsuit was resolved. . oordination ith ocal or Municipal Agencies Not surprisingly, any DOTs epor ed coordination with law enforcement to move unsheltered populations from unauthorized areas of the right-of-way. The role of the DOT is often to alert the law enforcement agency and advise on areas that should be targeted. Some DOTs mentioned the importance of a consistent approach when targeting areas that involve the use of risk factors and a consistent approach with the removal of the unsheltered population in accordance with local laws and ordinanc s. Some DOTs mentioned that they have a coordinated approach when dealing with the unsheltered population in the right-of-way, which may include coordination with local 148 Hooper v. City of Seattle. https://www.aclu-wa.org/news/aclu-wa-asks-court-halt- seattle%E2%80%99s-illegal-seizure-and-destruction-unhoused-peoples-property. (Last visited Feb. 28, 2022.) WSDOT was the subject of a lawsuit from advocacy groups with regard to its encampment leanup practices.148 e lawsuit involved the way WSDOT handled the belongings of campers when conducting the site cleanup. e lawsuit was dismissed, but development and implementation of ocial policy and pro- cedures were on hold until the lawsuit was resolved. 4. Coordination with Local or Municipal Agencies Not surprisingly, many DOTs reported coordination with law enforcement to move unsheltered populations from un- authorized areas of the right-of-way. e role of the DOT is oen to alert the law enforcement agency and advise on areas that should be targeted. Som DOTs mentioned the importance of a consist nt approach when targeting areas that involve the use of risk factors and a consistent approach with the removal of the unsheltered population in accordance with local laws and ordinances. Some DOTs mentioned that they have a coordinated ap- proach when dealing with the unsheltered population in the 148 Hooper v. City of Seattle. https://www.aclu-wa.org/news/aclu- wa-asks-court-halt-seattle%E2%80%99s-illegal-seizure-and- destruction-unhoused-peoples-property. (Last visited Feb. 28, 2022.)

24 NCHRP LRD 87 an overview of survey responses and the frequency with which a response was mentioned by survey respondents. 6. Managing Unsheltered Populations in Rural and Suburban versus Urban Areas Survey respondents were asked to describe how issues with the management of unauthorized access to the right-of-way might dier in rural, suburban, or inner-city areas. Some DOTs described that unauthorized access by unsheltered populations is mostly limited to urban areas, which might have a higher tol- erance to accept larger camps of unsheltered populations than rural or suburban areas. DOTs also noted that resources for social services that deal with unsheltered populations tend to be higher in urban areas compared to rural or suburban areas. DOTs described that unauthorized access in rural areas is less frequent and more dicult to discover. Some of these uses might not be related to unsheltered populations and might be temporary, for example, encroachments such as farm elds ex- tending into the right-of-way, private sales, sledding, or other recreational uses of the right-of-way. Similarly, unsheltered pop- ulations can be more hidden in suburban areas. DOTs noted that encampments in suburban and rural areas are more oen mitigated due to specic public complaints. E. Other Issues Noted by State DOTs 1. Shelters for People Experiencing Homelessness on State Right-of-Way Of interest to the research was the current state of DOTs using state rights-of-way for shelters for people experiencing homelessness. Overall, several DOTs were actively evaluating this strategy, but no DOT described a successful implementa- tion of the idea. For example, the Hawaii DOT stated that it is evaluating options for shelters in the state rights-of-way but is still in the early planning stages. One issue the DOT men- tioned was that necessary utilities are currently not available to support shelters for people experiencing homelessness in areas right-of-way, which may include coordination with local departments of public works and social service agencies. e Georgia DOT mentioned weekly meetings that discuss ongo- ing issues and work toward solutions to mitigate the concerns of local agencies. However, coordination eorts can vary greatly based on the level of sta and resources available at a munici- pality. For example, WSDOT mentioned that several cities have hired sta to manage issues related to the unsheltered popula- tion, which greatly improves coordination eorts between the DOT and local agencies. Some DOTs mentioned that issues with unsheltered popu- lations happen very infrequently, and in those rare cases, the DOT coordinates a response with local or municipal social ser- vice agencies. Some DOTs oered additional insight during interviews with state ocials. WSDOT mentioned the IH 5 corridor near the City of Olympia that is owned in part by WSDOT and the city, which was designated an allowable site for camping of un- sheltered people. e area was provided outhouses and sanita- tion pickup. An area of about two city blocks was secured with chain-link fencing and became an alternative for relocated en- campments. e intent of the site was to provide temporary shelter before more permanent housing was available for the aected population. 5. Effect of Property Type on Policies and Practices Survey participants were asked about how the right-of-way property type, for example, easement or fee ownership, aects policies, practices, or procedures with the management of un- authorized access of the right-of-way. Most DOTs responded that either there is no eect or the DOT gives the issue only minor consideration. Two state DOTs commented that the issue of unsheltered populations typically aects fee-owned rights-of- way. In summary, the property type does not appear to have an eect on state DOT policies and practices when dealing with unsheltered populations in the right-of-way. Figure 5 provides Figure 5. Effect of property type on policies and practices for the management of unauthorized access to the right-of-way. - 42 - Figure 5. Effect of property type on policies and practices for the management of unauthorized access to the right-of-way. 6. Managing Unsheltered Populations in Rural and Suburban versus Urban Areas Survey respondents were asked to describe how issues with the management of unauthorized access to the right- f-way might differ in rural, suburban, or inner-city areas. Some DOTs described that unauthorized access by unsheltered populations is mostly limited to urban areas, which might have a higher tolerance to accept larger camps of unsheltered populations than rural or suburban areas. DOTs also noted that resources for social services that deal with unsheltered populations tend to be higher in urban areas compared to rural or suburban areas. DOTs described that unauthorized access in rural areas is less frequent and more difficult to discover. Some of these uses might not be related to unsheltered populations and might be temporary, for example, encroachments such as farm fields extending into the right-of-way, private sales, sledding, or oth r recreational uses of the right-of-way. Similarly, unsheltered populations can be more hidden in suburban areas. DOTs noted that encampments in suburban and rural areas are more often mitigated due to specific public complaints. E. Other Issues Noted by State DOTs 1. Shelters for Pe ple Experiencing Homelessness on State Right-of-Way Of interest to the research was the current state of DOTs using state rights-of-way for shelters for people experiencing homelessness. Overall, several DOTs were actively evaluating this strategy, bu no DOT described a successful implementation of the idea. F example, the Hawaii DOT stated that it is evaluating options for shelters in the state rights-of-way but is still in the early planning stages. One issue the DOT mentioned was that necessary utilities are currently not available to support shelters for people experiencing homelessness in areas under consideration. Oregon mentioned that proposals for alternative-use leases would be considered if the requested area is outside the clear zone and not needed for the cons ruct on, maintenance, or operation of the highway.