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

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NCHRP LRD 87 25 been cited in cases involving unsheltered individuals trespassing on public property. e denition of criminal trespass varies greatly from state to state and even local jurisdiction. An important distinction is that some juris- dictions evaluate whether harm was done in the unauthor- ized entry, and others require verbal or written warnings such as posted signs. Further, some jurisdictions focus on the acts committed on a property, rather than entry to the property. • e Fourth Amendment, Illegal Search and Seizure, might apply when law enforcement procedures, such as the tear- ing down of encampments for people experiencing home- lessness, seize and dispose of the belongings of unsheltered individuals. In many cases, the law has ruled in favor of the unsheltered. Related issues are the debate over privacy, how privacy should be addressed on public property, and the denition of “private space.” e Supreme Court ruled that the Fourth Amendment protects people and not places; therefore, things that a person knowingly exposes to the public are not subject to the Fourth Amendment protec- tion. Further, the Uniform Act has excluded the unshel- tered from coverage under the act and eligibility for reloca- tion benets, including individuals residing in emergency shelters. • e Eighth Amendment, Cruel and Unusual Punishment, has frequently been cited to protect individuals from the cruel and unusual punishment of policies that disallow or tear down homeless camps. In such cases, supporters have sought to protect unsheltered individuals by interpreting homelessness as a status and arguing that anti-camping or anti-sleeping ordinances punish that status. • e Fourteenth Amendment, Equal Protection of the Laws, has been cited to protect the rights of individuals to travel. Some jurisdictions have targeted unsheltered individuals in public spaces through laws that prohibit loitering. ese laws oen prohibit an extensive range of behavior, and the Supreme Court has found several loitering laws to be un- constitutionally violating the Fourteenth Amendment’s Due Process Clause, for example, due to vagueness. A law that does not give notice of prohibited conduct to aected individuals and encourages arbitrary police enforcement could be unconstitutionally vague. • Executive Order 12898, Federal Actions to Address Environ- mental Justice in Minority and Low-Income Populations, directs federal agencies to avoid, minimize, or mitigate dis- proportionately high and adverse human health and envi- ronmental eects, including social and economic eects, on people with low incomes. e order provides guidance to federal agencies for considerations to mitigate adverse im- pacts of agency activities, including maintenance, on people facing barriers or multiple barriers to economic security or opportunity. As a result of the executive order’s directive, USDOT adopted Order 5610.2, which sets forth steps to prevent disproportionately high and adverse eects to people of color or people with low incomes through analy- 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 construction, maintenance, or operation of the highway. TxDOT reported that it is in the process of evaluating if cer- tain areas of state rights-of-way would be suitable to be used as shelters for people experiencing homelessness, specically in the Austin District. e Colorado DOT mentioned discussions with FHWA to discuss a waiver that would allow a shelter on certain federal-aid rights-of-way within the state. e Indiana DOT stated that a task force that was created to research ways to provide short-term and long-term solutions for housing the unsheltered population is considering this option. e Minnesota DOT mentioned that it has reviewed the issue based on a few requests, but so far, no projects have moved to the construction phase. e main reasons the projects were unsuccessful were a lack of sanitation management and insuf- cient security. Other reasons were a lack of dedicated funding for such projects and, in some cases, potential violations of local codes and ordinances. 2. Updates to State and Federal Laws e research team asked survey participants about updates to state or federal laws, regulations, or policies that would be useful to improve the management of unauthorized access to public rights-of-way. Survey respondents oered only a few recommendations. DOTs mentioned it would be useful if state or federal laws more clearly prohibit the unauthorized use of the highway right-of-way. New laws that prohibit res under bridges would be useful to avoid damage to bridges caused by res, ensuring the integrity of these structures. IV. CONCLUSIONS e objective of NCHRP Project 20-06/Topic 25-04 was to produce a digest that documents the laws, statutes, cases, pro- cedures, policies, and other resources governing or addressing: 1. A transportation agency’s prevention and removal of en- campments for people experiencing homelessness from the transportation right-of-way. 2. e authorized use of the transportation right-of-way for shelters and social services to assist transportation agencies in addressing safety, health, and public welfare issues and the ability of transportation agencies to control their right-of-way. A review of the legal framework at the federal, state, and local levels, as well as responses from a survey and interviews with state DOT ocials resulted in the following ndings: • e First Amendment to the U.S. Constitution, Freedom of Speech and Religion, protects the right of begging and pan- handling. However, the Supreme Court found that the First Amendment protects speech, not conduct. is has impacted jurisdictions that attempted to outlaw begging and panhandling, shiing the focus to conduct, for exam- ple, “aggressive” begging. e First Amendment has also

26 NCHRP LRD 87 • With regard to safety and crime, DOTs most frequently mentioned a concern about chemical or substance abuse and drug dealing at unsheltered encampments. DOTs also mentioned concerns for the physical safety of the unshel- tered population, including prostitution and human traf- cking, as well as concerns for the safety of adjacent neighborhoods. • With regard to agency liability and legal processes, DOTs mentioned concerns for holding the personal property of the unsheltered population during and following the re- moval from the unauthorized 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. • Policies and procedures to manage unsheltered populations on rights-of-way are typically applied consistently state- wide. Commonly, state DOTs manage the issue with the help of law enforcement agencies. To prevent unsheltered encampments in the right-of-way, state DOTs use signs, fencing, and sometimes strategic vegetation management, which might involve pruning or clearing of brush, trim- ming of trees, and mowing of grass. State DOTs also men- tioned the use of structural designs that limit spaces for occupation, in particular with bridge abutments. To remove unsheltered encampments, state DOTs typically request assistance from law enforcement and social services agen- cies or homeless shelters. Some states give a posted notice, usually 10 or 30 days, or conduct outreach activities before starting the removal process. • COVID-19 has notably intensied the issue in that many shelters reduced capacity due to health concerns and social distancing requirements. In some jurisdictions, this resulted in special permits for campsites for people experi- encing homelessness and (temporary) non-enforcement of local ordinances limiting camping or campsites for people experiencing homelessness. e shared responsibility of addressing unsheltered popu- lations in the right-of-way has compelled many state DOTs to improve coordination with local law enforcement and social service agencies. Several DOTs mentioned that they are actively aligning the DOT’s policy with local jurisdiction policies, while others are reassessing policies or implementing new guidelines. Based on survey responses, issues with unsheltered popu- lations in the right-of-way appear to be increasing all over the United States but not at an equal rate: Not every state DOT experiences signicant issues with unsheltered populations in the right-of-way, and in some states the magnitude of the issue seems to be far greater than in others. States that have been in- creasingly impacted by the issue have been more proactive in adopting new legislature and new policies. However, several of these laws and policies have been or are currently being chal- lenged in court, which has resulted in modications to the laws or settlements. ses conducted as part of federal transportation planning and NEPA provisions. e protections and considerations reected in the executive order are closely tied to Title VI of the 1964 Civil Rights Act, which prevents discrimination of persons on the basis of race, color, or national origin, and subsequent expansion of requirements in the 1987 Civil Rights Restoration Act. e review of statutory law resulted in the following ndings regarding unsheltered populations in the right-of-way: • Some states have codied practices regarding the use of the right-of-way, and others create policy using agency guid- ance documents and manuals. • Legal frameworks relating to encampments in the right-of- way are limited in regard to codied practices, but states have broader powers in terms of use and control of public land and rights-of-way. • Seven states have statutes that specically reference camp- ing or encampments on public land and rights-of-way. Other states rely on statutes that relate to the control and use of the right-of-way as well as the removal of property and obstructions from such spaces. • Some states reference public nuisance in their state statutes, while others have emergency shelter laws that require the provision of services under certain conditions. • Legal concepts such as criminal trespass, promissory estoppel, and necessity have been used to argue for and against the removal of encampments. Findings regarding local jurisdictions included the following: • Local jurisdictions oen focus on the removal of obstruc- tions in public areas or restrict the use of public spaces—for example, lying, sleeping, lounging, or camping—during certain times of the day. • Some jurisdictions limit relocation activities to scenarios that present a public health hazard or safety risk. Ordinances may or may not require the availability of overnight shelters before relocating individuals. At the onset of COVID-19, some shelter spaces reduced capacity due to health con- cerns, which impacted the enforcement of local ordinances and resulted in special permits for sanctioned campsites of unsheltered populations. Findings regarding approaches that states use to manage un- sheltered populations in the right-of-way include the following: • State DOTs frequently voiced concerns about safety and crime, and concerns about agency liability and legal processes. Most frequently, DOTs mentioned the issue of dealing with trash, litter, and debris removal. Related to the issue are concerns about time and resources that DOTs must expend to deal with the issue. DOTs also frequently mentioned a general lack of sta that have the skills to deal with the problem and a lack of training to improve the skills of existing sta, which might contribute to the fact that sta are oen unmotivated or even unwilling to get involved with this type of issue.