Chapter 8.42 UNAUTHORIZED USE OF COUNTY PROPERTY

This article, and amendments thereto, shall be known and may be cited as the “Unauthorized Use of County Property resolution.” (Res. 2024-93 (Exh. A), 9/29/24).

8.42.020 Application.

(1) This article shall be operative outside of the incorporated cities and towns in Chelan County.

(2) This article shall not apply to the following:

(A) Construction or maintenance by the county public works department, its contractor, or a franchise or permit holder in compliance with the terms of the franchise or permit.

(B) Mailboxes and attached newspaper boxes installed and located in conformity with the county code.

(C) Events and activities authorized by a county permit or exemption from permit requirements. (Res. 2024-93 (Exh. A), 9/29/24).

8.42.030 Definitions.

“Camp” means to remain overnight, or to erect a tent or other shelter, or to use sleeping equipment, a vehicle, boat, motor home, trailer camper or other conveyance for the purpose of, or in such a way as will permit, remaining overnight, or the establishing, setting up, and use of a site or location for cooking and preparation of meals and other related activities.

“County property” as used in this article means all improved and unimproved real property owned or leased by Chelan County, and all Chelan County easements, including but not limited to all portions of county parks, county buildings, rights-of-way, roadways, county parking lots, storm water management facilities and property, county utility property, and associated marine areas.

“Person” means one or more natural persons, partnerships, firms, corporations, companies, associations, societies, or organizations.

“Right-of-way” means land, property, or property interest (e.g., an easement) acquired for or devoted to transportation purposes, including ditches and drainage facilities, and as a utility corridor.

“Unauthorized use of county property” means that, without lawful authority and within county property, a person deposits, places, stores, creates, constructs, installs, maintains, leaves, or abandons any structure, device, encroachment, or natural or artificial object, or places, dumps, spills, sprinkles, drains, diverts, collects and channels, deposits, or maintains any natural or artificial substance or material, including water, or conducts or engages in any such activity within county right-of-way or within the borders of county property.

“Within” means in or into, and includes inside, on, upon, above, over, under, beneath, through, across, along, touching, encroaching, or occupying. (Res. 2024-93 (Exh. A), 9/29/24).

8.42.040 Nuisances declared.

(1) The board of county commissioners deems unauthorized use of county property to be a public nuisance if the unauthorized use:

(A) Injures, endangers or tends to endanger vehicles or other conveyances or persons traveling on county property; or

(B) Obstructs, tends to obstruct, or impedes passage within, on, or through any portion of a county property; or

(D) Interferes with, hinders, or obstructs construction, alteration, repair, improvement, or maintenance of a county property.

(2) Camping within the boundaries of any county property, except at legally established camping or rest areas, is deemed to be a public nuisance. (Res. 2024-93 (Exh. A), 9/29/24).

8.42.050 Violations and penalties.

(1) A person who knowingly creates, causes or participates in maintaining a public nuisance or otherwise violates a provision of Section 8.42.040 is guilty of a misdemeanor.

(2) A person is guilty of a misdemeanor if he or she knowingly or negligently causes an innocent or irresponsible person to violate a provision of Section 8.42.040, or, if he or she, with knowledge that it will promote or facilitate commission of a violation of Section 8.42.040, solicits, commands, encourages, aids, agrees to aid, or requests another person to violate a provision of Section 8.42.040.

(3) Written Order.

(A) Issuance of Written Order by Law Enforcement Officer. Whenever a law enforcement officer has probable cause to believe that a person has committed any act set forth in subsection (5) of this section on any Chelan County property, the law enforcement officer has authority to issue the person a written order prohibiting that person from entering or remaining in the Chelan County property where the act was alleged to be committed. When a law enforcement officer issues a written order under this section, the order shall remain effective for five years from the date of issuance unless an earlier expiration date is specified in the order.

(B) Twenty-Four Hours to Remove Property. A person issued a written order under this section must remove all of their belongings within twenty-four hours of the time the notice was issued or risk forfeiting the property.

(i) The name of the person the written order is being issued to;

(ii) The name of the person issuing the written order;

(iii) The public facility that the person is being prohibited from entering or remaining in;

(iv) The date the written order is issued;

(v) Specification of the alleged misconduct;

(vi) Specification that a violation of the written order is a misdemeanor; and

(vii) Shall include a statement of the appeal rights in this section.

(D) Written orders issued under this section:

(i) Are valid and effective whether or not the prohibited person is charged, tried or convicted of any crime;

(ii) Are valid and effective even if the prohibited person refuses a copy of the order; provided, that the issuing law enforcement officer reasonably notifies the prohibited person verbally of the prohibited period and the place(s) of exclusion;

(iii) Are valid and effective for the prohibited period unless and until shortened or rescinded by an official ruling after appeal in this section; and

(iv) May be issued on probable cause which is based upon observations by county officials and/or law enforcement officers, or upon civilian reports that an official or officer could reasonably rely on in determining probable cause.

(4) Violation of Written Order. A person who violates a written order issued pursuant to this section shall be guilty of a misdemeanor. Violations of a written order issued pursuant to this section are a separate offense from the offense associated with the probable cause determination of subsection (3)(A) of this section.

(5) Misconduct to Support Written Order. An act which may result in the issuance of a written order under this article includes, but is not limited to, any of the following when committed associated with county property:

(A) Any act, including a violation of Section 8.42.040, that qualifies as a felony, gross misdemeanor or misdemeanor crime under federal, state, or local law.

(6) Hearing.

(A) Request for a Hearing. If the written order was issued by a law enforcement officer, the person who is the subject of the written order may request a hearing to have the issuance of the order reviewed. Such request shall be in writing and contain a return address that will enable Chelan County to provide such person written notice of hearing dates. The written request for a hearing must be filed with the sheriff’s department within fourteen calendar days of the issuance date of the written order. If a request for a hearing is not timely received by the sheriff’s department, then the right to a hearing will be waived. If a request is timely received, a hearings officer will schedule a hearing.

(B) Hearing Date. The hearings officer shall set a hearing to be held within fourteen calendar days of the date a timely request for hearing is received by the sheriff’s department. For good cause, or upon request of the person requesting the hearing, the hearings officer may set the hearing to a date beyond the fourteen calendar days.

(C) Burden. At the hearing, the county must establish by a preponderance of the evidence that probable cause existed to believe that the person committed the alleged misconduct set forth in the written order. Proof of probable cause may be established based upon the sworn declarations, including a law enforcement officer’s report, without further evidentiary foundation. Any sworn declaration may be supplemented by the testimony of witnesses or the presentation of other evidence. The person against whom the order was issued shall have the opportunity to present evidence and testimony at the hearing, which may be done through sworn declarations, when challenging the written order.

(D) Regulation of Hearing.

(i) The hearings officer shall regulate the course of the hearing.

(ii) Either a recording or a verbatim record of the hearing shall be made. Upon request, a copy of the recording or verbatim record shall be provided to the person.

(iii) The hearings officer shall issue a written decision setting forth findings of fact, conclusions of law, and an order affirming, vacating, or modifying the law enforcement officer’s issuance of the written order.

(iv) The written decision shall be provided to the person against whom the written order was issued, or his or her legal counsel, within ten calendar days after the conclusion of the hearing.

(v) The written decision shall be personally served, sent to a general delivery address provided by the requesting party, or provided by certified mail, return receipt requested. If service is done by mail, service shall be deemed complete upon the third business day after the date of mailing.

(7) Appeal. An appeal of the written decision issued by the hearings officer shall be filed with the Chelan County superior court within twenty calendar days from the date of service of the written decision, or is thereafter barred. Any appeal shall be based on the record from the hearing and shall be upheld unless it is determined that the written decision was arbitrary and capricious. Any appeal shall be conducted pursuant to judicial review under the Administrative Procedure Act as set forth in RCW 34.05.534 through 34.05.574, as now existing or hereafter amended. The appeal process in this section cannot be used to appeal any criminal penalties imposed by a court under this section or any other law.

(8) Every person convicted of a violation of Section 8.42.040 shall be punished by imprisonment in the county jail for a maximum term fixed by the court of not more than ninety days, or by a fine in an amount fixed by the court of not more than one thousand dollars, exclusive of statutory PSEA assessments, or both such imprisonment and fine. (Res. 2024-93 (Exh. A), 9/29/24).

8.42.060 Public safety emergencies.

(1) In certain situations, violations of Section 8.42.040 may be deemed to be public safety emergencies by the county engineer, the county fire marshal or the county sheriff who are each independently empowered to determine the existence or imminence of the emergency and to take summary action, as either may determine reasonable, to prevent, remove or abate such nuisance. Summary abatement under this section shall not constitute a breach of the peace or a trespass.

(2) The county official implementing summary abatement of a public safety emergency shall promptly report the abatement action to the board of county commissioners. (Res. 2024-93 (Exh. A), 9/29/24).

8.42.070 Election of remedies.

(1) The county may use any or all lawful means to prevent or abate a nuisance described in this article and may elect to address violations by concurrent or alternative application of other county code or of state law.

(2) Nothing in this article shall preclude or require prosecution of any criminal offense or a county action for abatement or damages.

(3) This article is supplementary to federal and state laws, appellate court decisions, rules, and regulations and to other provisions of the county code. (Res. 2024-93 (Exh. A), 9/29/24).

8.42.080 Costs and expenses to prevent or abate a nuisance.

(1) The person creating, causing, or committing the nuisance shall be solely responsible for the costs and expenses to prevent or abate the nuisance.

(2) The county may recover its expenditures to prevent or abate a nuisance described in this article. (Res. 2024-93 (Exh. A), 9/29/24).

8.42.090 Severability.

If any section, subsection, paragraph, sentence, clause, or phrase of this article is declared unconstitutional or invalid for any reason, such decision shall not affect the validity of the remaining parts of the article. (Res. 2024-93 (Exh. A), 9/29/24).

Article II. Policy

8.42.100 Introduction.

Chelan County owns and operates various properties as defined in Section 8.42.030. The county finds that unauthorized encampments and other public nuisances on county properties are a threat to the public safety and health and interfere with the public’s ability to use those county properties for their intended purposes. (Res. 2024-108 (Exh. A § 1), 12/2/24).

8.42.110 Purpose.

The purpose of the “Chelan County Policy Regarding Unauthorized Use of County Property” (policy) is to establish a uniform policy for addressing the removal of unauthorized encampments and other public nuisances from county property in a manner consistent with local, state and federal laws. County office or department policies and procedures consistent with this policy and which may aid in its implementation remain in effect. Nothing herein is intended or should be construed to create a legal obligation or private right of action. (Res. 2024-108 (Exh. A § 2), 12/2/24).

8.42.120 Background.

The county is experiencing a growing number of unauthorized encampments. Such encampments pose safety and health risks for people living in and around them, including human and solid waste, exposure to communicable diseases, and increased criminal activity. They also may impair the intended use of county property. At the same time, individuals experiencing homelessness need services and help to find housing alternatives. (Res. 2024-108 (Exh. A § 3), 12/2/24).

8.42.130 Definitions.

“Abandoned personal property” means personal property where it appears, based on the totality of the circumstances, that the owner intentionally relinquished the right to possess by action, verbal and/or written disclaimer, lapse of time, or non-use of the same.

“County” means the county of Chelan, including its officers, employees, agents, contractors and sub-contractors.

“Designated county personnel” (DCP) means county employees designated by elected officers and department directors to undertake inspections, initiate or supervise removal of encampments or perform any other activity associated with this policy, and ensure county compliance with this policy and any applicable laws. DCP may assign administrative tasks to others when practicable. For the purposes of this policy, the recommended initial contact and initially designated county personnel is the homeless program coordinator, reachable at ES.CE@co.chelan.wa.us.

“Emphasis area” means an area or location designated by the county where unauthorized encampments have become a repeated or consistent problem based on the totality of the circumstances.

“Encampment” means any area of county property as set forth in Section 8.42.030 which an individual has set up for occupancy, and which may have one or more tents, lean-tos, structures, tarpaulins, pallets, makeshift structures or items of personal property which may be reasonably considered to be used for purposes of habitation. Encampments do not include sites that a reasonable person would conclude are abandoned as that term is defined below, that consist solely of solid waste, or that are permitted on county park property for lawful recreational use.

“Hazardous item” means an item, including personal property, which appears to be dangerous or involves risk of harm to the health or safety of humans, animals, or the environment. Hazardous items may include, but are not limited to, items contaminated with bacteria, viruses, parasites, and fungi; saturated items; pollutants; poisons; flammable or explosive material; broken glass; metal staples or other sharp objects; solvents or other corrosive agents; human waste; illicit drugs; and drug paraphernalia.

“Immediate hazard” means a public nuisance as set forth in Section 8.42.040 where conditions at a county property place the public at risk of serious injury or death, or those conditions can reasonably cause imminent compromise to the structural and environmental integrity of the surrounding location. Immediate hazards include, but are not limited to, encampments at roadway shoulders and off-ramps, encampments exposed to moving vehicles, encampments that can only be accessed by crossing driving lanes outside of a legal crosswalk, encampments in landslide or flood prone areas of county property, encampments at high risk of fire, encampments along or on top of river levees, and encampments where the lack of permanent sanitation facilities results in human solid or liquid waste being collected or discharged in a manner that immediately threatens public health.

“Personal property” means an item that is readily identifiable as belonging to a person, has apparent utility in its present condition, and is not hazardous. Law enforcement will determine whether an item is personal property.

(A) Examples of personal property include, but are not limited to, identification documents, personal papers, legal documents, tents, fully intact bicycles, radios and other electronic devices, fully intact eyeglasses, prescription medications, photographs, jewelry, and medical devices such as crutches or wheelchairs. Weapons may be considered personal property and will be handled in accordance with Section 8.42.190(3). For purposes of this policy, weapons include any firearm, explosive, or other item capable of producing any bodily harm.

(B) Personal property does not include items that are considered solid waste, as defined herein.

“Outreach” means a provider with the competency to engage individuals experiencing homelessness.

“Readily identifiable” means the item can be identified as personal property by sight, without danger or threat of safety to the public defined below.

“Solid waste” has the same meaning as in RCW 70A.205.015 and 82.18.010, including but not limited to the following: bagged or loose household garbage, containers of household liquids or hazardous wastes, decaying furniture, furniture parts, machinery or appliances, household fixtures, tires, batteries, mattresses, construction debris, rotting or scrap lumber, paper and/or cardboard, rubber debris, scrap metal, vehicle parts, hardware, yard debris, cut brush or wood, dead or decaying plant materials, animal carcasses or animal waste, junk vehicles, or derelict vessels. (Res. 2024-108 (Exh. A § 4), 12/2/24).

8.42.140 Removing immediate hazard encampments.

(1) Law enforcement or DCP may remove individuals and property from county property which in their discretion meet the definitions of an immediate hazard without prior notice to inhabitants.

(2) If an immediate hazard site is believed to be inhabited, law enforcement and outreach personnel must be contacted and law enforcement must be present until determined that their presence is no longer necessary.

(3) Law enforcement or DCP will provide written and/or oral notice to inhabitants present at the time an encampment is removed that they intend to immediately remove the individuals and property.

(4) Law enforcement or DCP must post the notice outlined in Section 8.42.160.

(5) DCP may immediately remove and dispose of hazardous items and solid waste and any personal property not removed by the inhabitants.

(6) DCP shall document immediate hazards and to whom the oral and/or written notices were made, unless circumstances preclude the documentation. Photographic documentation is highly recommended. (Res. 2024-108 (Exh. A § 5), 12/2/24).

8.42.150 Encampment inspection and prioritization.

(1) If multiple encampments exist that are likely to require removal, law enforcement and/or DCP should prioritize encampments for removal after inspection of encampment locations. Where an inspection requires DCP to walk the area and potentially contact inhabitants of the encampment, law enforcement shall be requested to be present for the inspection.

(2) Law enforcement or DCP must determine ownership of the real property. If the encampment is entirely on county property, the inspection and removal may proceed consistent with this policy. If the encampment is entirely on private property, the process for abating public nuisances on private property should be followed. (See Section 8.42.200). If the encampment spans properties owned by the county and one or more private parties, law enforcement or DCP should notify the other owners and seek their collaboration prior to taking action with respect to the privately owned property.

(3) The following criteria, in no particular order, may be considered when prioritizing encampments for removal: (A) objective perils, such as proximity to moving vehicles and steep slopes; (B) criminal activity; (C) quantities of solid waste; (D) other active health hazards to occupants or the surrounding neighborhood; (E) imminent work scheduled at the site for which the encampment will pose an obstruction; (F) size of the encampment; (G) damage to environmentally critical areas; (H) the proximity of homeless individuals to uses of special concern, including schools or facilities for the elderly; and (I) complaints received. When prioritizing encampments for removal, consideration should be given to input from the county-designated outreach personnel or provider with the community. Law enforcement or DCP may reprioritize removal at any time, including, but not limited to, because new encampments have been identified or new information about an encampment’s condition becomes known. Nothing in this section requires law enforcement or DCP to remove camps in order of a predetermined priority if cost, difficulty in removal, or other considerations dictate otherwise. (Res. 2024-108 (Exh. A § 6), 12/2/24).

8.42.160 Notices.

(1) Notices must contain the following:

(A) The date and time the notice was posted;

(B) The date and time that removal of the encampment is scheduled to commence;

(D) Contact information for an outreach provider that may be able to provide access to services.

(2) Law enforcement or DCP should maintain and use a standard form notice and post notices in a manner reasonably calculated to be seen, preferably in multiple locations, and at encampment access points.

(3) If possible, law enforcement or DCP should give oral notice to individuals present at the encampment as provided for in the posted notice.

(4) If the removal process is not commenced within seventy-two hours of the date and time provided in the notice, they must re-post notice of the encampment removal.

(5) Notices should be printed in a simple and legible font in English and in any other language that in their sole discretion they believe would further the purpose of the notice.

(6) Nothing in this section precludes removal of an encampment occurring over a period of several days until completion so long as removal operations commence before seventy-two hours following the commencement time identified in the notice.

(7) Law enforcement and DCP should use their best efforts to document the number of shelters at the encampment and the number of notices and locations posted at an encampment site. Photographic documentation is recommended. (Res. 2024-108 (Exh. A § 7), 12/2/24).

8.42.170 Providing alternative shelter options before removal of a non-obstructing or non-immediate hazard encampment.

(1) Prior to removing a non-obstructing or non-immediate hazard encampment, the DCP or outreach provider should inform individuals in the encampment of services offered in the county.

(2) The services may include housing programs, shelter programs with or without day programs, and other authorized programs. Nothing herein should be construed to require the county to provide alternatives to individuals who have been previously or are currently excluded from services or housing alternatives for any reason, including the individual’s behavior or violation of service or housing provider policies. (Res. 2024-108 (Exh. A § 8), 12/2/24).

8.42.180 Outreach for encampment removals.

(1) Subject to Section 8.42.140, if the site is inhabited, DCP should arrange for outreach efforts to come to the encampment site to offer services at least once between the time that notice of removal is posted and the scheduled removal date.

(2) To the extent possible, if the site is inhabited, DCP should arrange for an outreach provider to be present on the date commencement of removal activities are scheduled to begin to offer services and shelter alternatives. (Res. 2024-108 (Exh. A § 9), 12/2/24).

8.42.190 Encampment removal and cleanup.

(1) If inhabitants are present in the encampment, DCP must contact law enforcement to be present for the duration of an encampment removal, or until law enforcement and DCP determine that their presence is no longer necessary.

(2) If there are inhabitants, law enforcement or DCP should provide a final warning and reasonable opportunity to leave prior to commencing removal and cleanup.

(3) Law enforcement and DCP should work together to take reasonable steps to identify and segregate items which may have evidentiary value without danger or threat of safety to DCP. If a firearm or explosive or an item appearing to be a firearm or explosive is found by DCP, DCP should not handle it, and should notify law enforcement who will then make appropriate determinations as to the disposition of the items, consistent with their applicable policies. For all other weapons, law enforcement and DCP should work together to determine how the item should be handled.

(4) Law enforcement and DCP may, at any time, remove property, tents, and/or structures in the immediate vicinity of the encampment that appear to have been erected after required notices were posted.

(5) DCP may remove and dispose of all items, including, but not limited to, solid waste, hazardous items, and other like material.

(6) Law enforcement and DCP should thoroughly document their actions during the removal process. Photographic documentation is recommended.

(7) Following cleanup, DCP may take steps to prevent unauthorized use of the site in the future and may monitor the former encampment site to determine if unauthorized use reoccurs. (Res. 2024-108 (Exh. A § 10), 12/2/24).

8.42.200 Unauthorized use of private property.

This policy applies to unauthorized encampments on county properties only according to the provisions of Article I of this chapter. Unauthorized encampments on private property must be treated as trespasses or public nuisances on private property subject to applicable laws and regulations. (Res. 2024-108 (Exh. A § 11), 12/2/24).

8.42.210 Amendment.

This policy may be amended by the Chelan County board of commissioners, who may consult with community development, public works, the sheriff, facilities maintenance, the prosecutor, and other appropriate offices and departments. (Res. 2024-108 (Exh. A § 12), 12/2/24).