City of Des Moines v. Webster

• Decision Date: 24 December 2014
• Docket Number: No. 13–1802.,13–1802.
• Citation: 861 N.W.2d 878
• Parties: CITY OF DES MOINES, Plaintiff–Appellant, v. Cassandra WEBSTER, Defendant–Appellee, and James Loveland, Jeanne Zeitler, and Eric Randall, Intervenors–Appellees.
• Court: Iowa Court of Appeals

861 N.W.2d 878

CITY OF DES MOINES, Plaintiff–Appellant

v.Cassandra WEBSTER, Defendant–AppelleeandJames Loveland, Jeanne Zeitler, and Eric Randall, Intervenors–Appellees.

No. 13–1802.

Court of Appeals of Iowa.

Dec. 24, 2014.

Mark Godwin, Deputy City Attorney, Des Moines, for appellant.

Charles A.D. Hill of Iowa Legal Aid, Des Moines, for intervenors-appellees.

Heard by DANILSON, C.J., and VOGEL and BOWER, JJ.

Opinion

BOWER, J.

The City of Des Moines (City) appeals the district court's ruling denying its petition for a writ of certiorari and upholding the ruling for the intervenors-appellees, James Loveland, Jeanne Zeitler, and Eric Randall (appellees). The City claims the district court erred in finding the defense of necessity applicable to the homeless individuals' situation. We find the district court erred in finding substantial evidence existed to support the defense of necessity. Accordingly, we reverse the judgment of the district court and remand for entry of an order sustaining the writ of certiorari.

I. BACKGROUND FACTS AND PROCEEDINGS.

Homeless people in Des Moines often resort to living under bridges in the metro area. The homeless have created campsites from a collection of canvas tents and makeshift lean-tos made from discarded wood and other materials. These dwellings serve as a place to sleep and store their possessions. The campsite at issue is located on the southwestern bank of the Raccoon River, underneath the Martin Luther King Jr. bridge and near the West Martin Luther King Jr. Parkway/Fleur Drive intersection. The appellees began living at the campsite in March 2012.

On January 17, 2013, the City posted notices addressed to the occupants under the Martin Luther King Jr. bridge. The notice stated they were in violation of section 102–615 of the Municipal Code of the City of Des Moines “by encroaching (living/residing and storage of personal property) on City of Des Moines property.”¹ The notice advised the occupants to leave by January 29, 2013, or be “subject to immediate forcible removal and/or arrest.” The occupants were given until January 28, 2013, to file an appeal with the City clerk. A timely appeal was filed.

On January 31, 2013, an administrative hearing was held before Administrative Hearing Officer Cassandra Webster. Attorney Charles Hill from Iowa Legal Aid represented the appellees. Appearing for the City were SuAnn Donovan, Zoning Enforcement Neighborhood Inspection Administrator with the City of Des Moines Community Development Department, and Roger Brown, Des Moines Deputy City Attorney.

At the hearing the City discussed the history of homeless people living under the bridges in Des Moines. The City acknowledged it last pursued legal action in November 2008. The City explained the 2008 action was prompted by the construction of “hooches” or small structures made out of plywood, one of which had caught fire. As a result, the City removed eight individuals from a campsite. In the spring and summer of 2011 the City removed two structures and three individuals from the levee north of Gray's Lake. That year the City spent $25,000 in the removal of twenty abandoned campsites and contributed $165,000 in an effort to secure housing for the homeless.

The City stated it had received several complaints about the individuals living under the bridge. A recreational trail passes under the bridge. Users of the trail reported verbal assaults, being frightened by the homeless, instances of panhandling, the unsightliness of the camps, and the accumulation of junk under the bridge. The City inspected the camps and found unsanitary conditions and unsafe heating methods creating a fire hazard. The location of the camps would also make it difficult for first responders to provide prompt services.

Des Moines Fire Marshall, Tom Patava, was called as a witness. He discussed the safety concerns caused by homeless persons using propane, camp fires/fire pits, or homemade wood burners for heat. Patava voiced concerns about the close proximity of the heat sources to the flammable heating materials the individuals use for shelter and bedding. He also noted, because of these problems, emergency responders are twenty times more likely to respond to a fire at one of the campsites versus a single family home.

Next, Cody Christensen, the deputy building official in the community development department, testified about the safety concerns unique to the camps. Christensen stated the city code sets a minimum standard of living for residents of the city and Christensen opined that since the homeless individuals inhabited the camps on a long-term basis, the city housing codes should also apply to their structures. However, these structures do not meet the housing standards set by the City. In addition to creating a fire hazard, the camps fail to provide adequate cooking, bathing, or restroom facilities.

Iowa Legal Aid attorney Charles Hill offered general information about homelessness. Hill argued the City did not give proper notice, the City's action was ultra vires, and the homeless persons he represented acted out of necessity due to the lack of suitable housing. Hill noted the local homeless shelter, which has a 150-bed capacity, exceeded its capacity during the January 2013 cold snap while providing shelter for 180 individuals. Hill faults the City for not providing a homeless shelter of sufficient size, and also for the general lack of affordable housing in Des Moines. Hill based his necessity argument on the Restatement (Second) of Torts, section 197, which states an individual is privileged to enter and remain on the land of another if it is reasonably necessary to prevent serious harm to the individual or his chattel. Finally, Hill remarked that the City's officials had visited the campsite on numerous occasions since the appellees began living there. Other than the City's officials advising the appellees about the safety hazards, the officials did not ask the appellees to leave the campsite until the notice was posted in January 2013.

Hill also presented the testimony of Eric Randall, one of the appellees and a resident at the campsite. Randall testified the local homeless shelter was over its capacity, and he did not view the shelter as a viable living space. He stated that if he went to the shelter, given the over-capacity, he may have to sleep on a hard bench or in a chair. Randall believes his campsite is more comfortable than the shelter, the campsite is tidy, and the residents have implemented a system for trash disposal. Randall highlighted an additional problem—he would have to leave his possessions if he went to the shelter as the shelter does not provide storage space. Randall testified further, if he and the others had to leave within the ten days mandated by the City, they would not have sufficient time to remove their possessions, leaving them with no choice but to stay under the bridge. Finally, Randall stated that he could not think of any injury caused to the City by his presence under the bridge.

Deidre Henriquez, the Program Manager for the Advocacy Department at Primary Health Care Outreach, testified on behalf of the appellees. She provided a brief overview of homeless camps in Des Moines, stating camps have existed dating back to at least 1983 when Drake University Professor Dean Wright began keeping records on the homeless population in Des Moines. Henriquez personally began observing homeless camps in 2001. She confirmed the City does have a homeless shelter with fifty beds for women and 100 beds for men. During the week the City posted the notice, about 170 people were staying at the shelter. The shelter did accommodate the over-capacity individuals by allowing them to sleep on chairs or benches. Henriquez opined that increasing the number of individuals at the shelter would lower the quality of services provided to the homeless.

The hearing concluded with closing statements by counsel. The City discussed the homeless problem in the United States, but emphasized the present hearing was about individuals living in a dangerous situation. The present situation placed the City in the position of an unwilling landlord to the homeless. The City claimed the defense of necessity does not apply as there was no imminent threat of bodily harm. Finally, the City indicated it had been more than fair, and with the winter conditions, the chance of harm to the appellees and first responders is so apparent it prompted the City to take action.

The appellees reasserted the necessity defense, claiming the cold weather created imminent harm if they were forced to relocate and faulted the City for a decade-long policy of acquiescing and allowing people to live under the bridges while failing to provide other suitable housing.

The hearing officer entered an order on February 11, 2013, ruling against the City. In the ruling, the hearing officer discussed the applicable city code provision dealing with encroachments and the December 7, 2012 amendment to the code. The amendment added “tent or other material configured or used for habitation or shelter” to the definition of items constituting an “encroachment” under code section 102–596. Also amended was section 102–615, which acted to limit the scope of a hearing on appeal from an encroachment removal action by the City, or to allow for immediate removal without notice if the encroachment “unreasonably endangers the safety of persons or property.”

In analyzing the appellees' necessity argument and the applicable case law, the hearing officer relied on State v. Walton, 311 N.W.2d 113 (Iowa 1981), for guidance on the defense of necessity, as well as several California criminal cases: Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir.2006), vacated 505 F.3d 1006 (9th Cir.2007) ; Tobe v. City of Santa Ana, 9 Cal.4th 1069, 40 Cal.Rptr.2d 402, 892 P.2d 1145 (1995) ; In re Eichorn, 69 Cal.App.4th 382, 81 Cal.Rptr.2d 535 (1998). These cases generally dealt with homeless persons...