By Howard Fischer
Mail | X: @azcapmedia

Neighbors of the Navajo Wash have no legal right to sue Tucson for allowing homeless to camp in the area, an attorney for the city is arguing.

“The city is immune from liability for its policy determinations,” Bernardo Velasco told Pima County Superior Court Judge Greg Sakall in response to a lawsuit brought by three residents of Hedrick Acres. He said state law says Tucson can’t be sued for deciding “fundamental governmental policy,” which he said includes not only whether to provide resources but whether and how to spend those resources.

In this case, Velasco said, the city has adopted policies that determine when it will intervene in situations where there are homeless people camping on city property. And only when that activity reaches a certain level does the city intervene.

More to the point, he said there are implications if Sakall grants the neighbors the relief they want.

“Plaintiffs ask the court to enjoin the city to implement their preferred policy: a zero-tolerance for camping in public spaces,” Velasco wrote, versus decisions made by council members.

And he warned it would lead to a spate of similar lawsuits, citing a comment made by Ilan Wurman, the attorney for the area residents, when he filed suit in September.

“We’re hoping to get a court judgment and a court precedent that others can use around Tucson,” the lead attorney for the neighbors told the Arizona Daily Star. Velasco told Sakall he needs to be aware of that goal.

“By placing the city under such an injunction, plaintiffs would be entitled to preferential treatment to compel the city to clear the wash on their whim, or face the contempt of this court, with the long-term intent to enable all property owners across the city to commandeer city resources to drive people living in public space out of sight (even though they admit there are not sufficient shelter beds) or out of the city altogether,” Velasco told the judge. “Leaving aside the inhumanity of such an approach — a question properly reserved for the city’s administration — any individual plaintiff with a chip on their should could take over policy decisions throughout the cities, towns, and unincorporated areas of Pima County.”

At the heart of the issue is the city’s three-tiered policy.

Tier 1 are former encampments which have no individuals living there where the city cleans up the site.
Sites designated Tier 2 are those which it calls “self-governing encampments,” where residents are “able to govern themselves and keep the area free from disruptive activities.” There, outreach services are offered and there is a schedule for trash pickup.

What are called “high problem encampments” are Tier 3, areas with violence and crime towards both the surrounding community and camp residents. That area is cleared out after residents are given 72-hour notice to vacate.

And while Velasco acknowledged the site had been designated Tier 3 at least twice, there was no such designation in place when the lawsuit was filed on Sept. 20. He suggested the lawsuit was filed that day because that is the same day Wurman, representing businesses in the Phoenix area, got a judge to issue an order requiring that city to clean up an area known as “The Zone” as a public nuisance — the very same argument being used in this case.

Wurman, however, said the issue is simpler than that.

In his response to the city’s request that Sakall throw out the request for an injunction, he said Tucson, in setting up the tier system, has admitted it is creating a nuisance.

He said state law prohibiting the maintenance of a nuisance applies to all landowners. And in this case, Wurman said, the city owns the park.

“It admits that it allows on its land, with its knowledge, the erection of public camps so long as they are not too obnoxious from its perspective, even if those encampments otherwise constitute nuisances,” he told the judge.

“As far as plaintiffs can tell, the city has no argument for why it cannot permanently ban camping in Navajo Wash notwithstanding the history nuisances there, except for a misguided ideology that unsheltered individuals have a right to camp in public, even if there are sufficient shelter beds available for them,” Wurman wrote. “But that ideological preference cannot trump the laws of the state of Arizona, which declare conditions such as those in Navajo Wash to be a nuisance.”

Velasco, however, said there are several problems with that conclusion.

He said the law defines “nuisance” as “an unreasonable interference with a right common to the general public.” Velasco said, though, not all interferences with public rights are public nuisances that allow someone to sue for damages.

“The law does not concern itself with trifles, or seek to remedy all of the petty annoyances and disturbances of everyday life in a civilized community or even from conduct committed with knowledge that annoyance and inconvenience will result,” he said.

And there’s something else.

Velasco said for the city to be liable, those filing suit have to show that it “engaged in conduct that set in motion forces that resulted in an injury.”

So, for example, a city can be held liable for operating a sewage treatment plant that frequently broke down and spilled waste, causing noxious odors to spread to nearby property which, in turn, made them physically ill, caused them to loose sleep and destroyed the value of their property. Ditto, he said, of a soup kitchen whose daily meals resulted in others frequently trespassing onto residents’ yards, including urinating, defecating, drinking and littering on their property.

Here, however, Velasco said the city did nothing to attract people to generate in or near Navajo Wash.
He also said there is a significant difference between what is happening here and the case that Wurman won against Phoenix.

In that case, Velasco said, police actually brought people to the area so they could receive services. Not so here, he said.

“The city has not designated Navajo Wash as a place for encampments, does not bring people there, and does not inform them that they will receive lenient or preferential treatment in the Wash,” Velasco told the judge. “To the contrary, the city regularly deters residents from camping in Navajo Wash, cleans up refuse in and around the Wash, and evicts individuals from Navajo Wash as needed.”

The lawsuit could get even more complicated.

Community Care Tucson and Community on Wheels, both of which provide services for the homeless, want Sakall to let them intervene in the case.

“Critically absent from the lawsuit ... is anyone speaking for the vulnerable unsheltered people at the core of this dispute,” wrote attorney Paul Gattone. He told Sakall their interests need to be represented because any decision he reaches would have “grave constitutional implications” for them.

“Without adequate alternative shelter, houseless persons have a constitutional right to be free from criminalization for unavoidable human activity, like sleeping and sheltering from the elements,” Gattone wrote. He also said they have a property interest in their belongings, “even those left temporarily unattended in public spaces.”

And Gattone said there’s an even more basic concept that the judge needs to consider.

“People are not nuisances,” he wrote. “Full stop.”

There’s a side issue facing Sakall.

Velasco said the three plaintiffs, through the Hedrick Acres Neighborhood Association or some other manner, have participated in or paid for the recent unauthorized destruction of 75 trees in Navajo Wash.

That, he said, is “gross misconduct” which weighs against the judge ruling in their favor.

Wurman does not dispute the tree cutting. But he called all that “totally irrelevant” to the lawsuit.

Even if were relevant, Wurman said the association’s volunteers have cleaned and landscaped the Wash for years in coordination with Tucson Clean and Beautiful. And Wurman said the action is consistent with a “master plan” which says the area cannot host a high volume of vegetation because that could hinder or divert water flow.

“And, of course, the overgrowth was leading to severe fires as a result of the encampments, and the association had every right to take acts consistent with the master plan to mitigate that risk, and the risk of public camping.”

No date has been set for a hearing, though there is a closed-door settlement conference between the parties set for Jan. 11.