On October 20, District 7 Albuquerque City Councilor Tammy Fiebelkorn emailed her monthly news letter to her constituents that can only be described as being disingenuous, calculating and very misleading as she wrote about a pending legal case against the city that has yet to be tried and announced a resolution she is sponsoring. The news letter reads as follows:
“One of the biggest issues of the past month is an injunction issued by the 2nd Judicial District Court that restricts the City’s ability to move people camping in public spaces beginning November 1. The injunction is very broad and only allows removal of campers from private land, sidewalks, and school properties.
The judge was very clear in the injunction that the reason for these restrictions is that there are simply not alternative places for unhoused folks to go, and until there are adequate options in our city, campers cannot be dislodged from public spaces.
I have a serious concern about what this means for our parks, open space, and all other public spaces in our city. As we learned from Coronado Park, the long-term presence of multiple people can have lots of negative impacts on the land. Imagine this situation in open space, near arroyos, or our neighborhood parks?
While the City will be requesting more guidance on this injunction from the court, it’s vital that we begin to comply with the requirements as soon as we can to alleviate the possible disastrous impacts.
To that end, I have proposed R-178. This legislation is a step that will let the City develop the needed alternatives in a quantity that will allow us to comply with the judges’ requests quickly.”
On October 31, in an interview Fiebelkorn had this to say about her resolution:
“With this injunction, I think we have to start scrambling to really comply with what this judge is saying. … The other options here are very, very slim. If they truly enforce this injunction, we could be in a lot of trouble for our parks, our open space or our public areas.”
CONTENTS OF R-17
Following is Resolution R-17 being sponsored by Fiebelkorn:
RESOLUTION SUSPENDING ADMINISTRATIVE APPEALS TO SAFE OUTDOOR SPACE APPLICATIONS IN RESPONSE TO COURT INJUNCTION RESTRICTING REMOVING ENCAMPMENTS FROM PUBLIC LAND
WHEREAS, the City is experiencing a housing crises; and
WHEREAS, as one means to address the crises, the City Council amended the Integrated Development Ordinance to authorize “Safe Outdoor Spaces” within the City; and
WHEREAS, the Planning Department thereafter approved several applications for Safe Outdoor Spaces; and
WHEREAS, the Land Use Hearing Officer on multiple occasions reversed the decision of the Planning Department, requiring the applicant to submit additional materials on order to obtain the required permit for a Safe Outdoor Space; and
WHEREAS, as a result of these administrative burdens, several applicants abandoned efforts to develop Safe Outdoor Spaces; and
WHEREAS, only two Safe Outdoor Spaces have been developed within the City, and both are accessible only to individuals with vehicles; and
WHEREAS, the City of Albuquerque has been enjoined from enforcing restrictions on camping, including camping in parks and open space, until it provides sufficient beds for the unhoused population; and
WHEREAS, the City must act urgently to provide more beds as quickly as possible, both to ensure that it provides shelter for the unhoused population and to ensure that it can protect its open space; and
WHEREAS, some unhoused individuals prefer outdoor areas, including Safe Outdoor Spaces, to indoor shelter space, and as a result any effort to expand the number of available beds should include outdoor areas such as Safe Outdoor Spaces; and
WHEREAS, it is the responsibility of the entire City to address the housing crises, and the burden of addressing that crisis should not fall more heavily on certain areas within the City.
BE IT RESOLVED BY THE COUNCIL, THE GOVERNING BODY OF THE CITY OF 7 ALBUQUERQUE:
SECTION 1. The requirements … of the Integrated 9 Development Ordinance, as applied to Safe Outdoor Spaces, are hereby suspended. Until further action is taken by the Council, the decisions of the Planning Department with regard to applications for Safe Outdoor Spaces will be deemed final administrative decisions, and those decisions will not be subject to appeal to the Land Use Hearing Officer or the City Council.
SECTION 2. The Planning Department shall only approve two Safe Outdoor Spaces per Council district.
SECTION 3. The Department of Health, Housing and Homelessness shall identify potential locations for Safe Outdoor Spaces operated by the City and shall, within 45 days, submit applications for at least three Safe Outdoor Spaces.
In addition, the Department shall identify current resources available for the operating costs of those Safe Outdoor Spaces.
The Department shall, within 60 days, submit a report to City Council that describes the status of those applications, identifies any additional locations for Safe Outdoor Spaces to be operated by the City, and identifies any additional resources needed for the City to operate Safe Outdoor Spaces.
SECTION 4. In addition, the Department shall, within 60 days, prepare a report to City Council that identifies the number of beds needed to provide shelter to the unhoused population within the City of Albuquerque, identifies the resources needed to provide those beds, and sets forth a plan to provide those beds in the shortest possible time frame.
… .”
SAFE OUTDOOR SPACES
“Safe Outdoor Spaces” are organized, managed homeless encampments with 40 designated spaces for tents that allows for upwards of 50 people, require hand washing stations, toilets and showers, require a management plan, 6 foot fencing and social services offered. The Integrated Development Ordinance (IDO) sets a limit of two in each of the city’s 9 council districts. Although the Integrated Development Ordinance amendment sets a limit of two in each of the city’s 9 council districts, the cap would not apply to those hosted by religious institutions.
On June 6, 2022 despite significant public outcry against Safe Outdoor Spaces the Albuquerque City Council enacted the legislation and passed it on a 5 to 4. On December 5, 2022 the City Council voted on a 5 to 4 vote to remove all references to Safe Outdoor Spaces within Albuquerque’s zoning code thereby outlawing the land use. Mayor Tim Keller vetoed the legislation. It was the councils third attempt to reverse its own decision to allow Safe Outdoor Spaces with one vote defunding them.
On January 4, 2023 the city council attempted to “override” Keller’s veto, but failed to secure the necessary 6 votes. Initially, there were 6 applications for Safe Outdoor Spaces, but only 3 were approved with one of those approved abandoned because the city sold the property to where it was to be located.
ACLU SUES CITY OVER CORONADO PARK CLOSURE
On Monday, December 19, 2022 the American Civil Liberties Union of New Mexico, the NM Center on Law & Poverty, and two private law firms filed a “Class Action Complaint For Violations of Civil Rights and for Declaratory and Injunctive Relief” against the City of Albuquerque over the closure of Coronado Park which has become a de facto city sanction homeless encampment. The Plaintiffs allege they were displaced from Coronado Park when the city closed it and that the city did not provide satisfactory shelter options to them although the city said it did give notice and offered shelter and services, including vouchers. According to an ACLU, the lawsuit was filed to stop the City of Albuquerque from destroying encampments of the unhoused, seizing and destroying personal property and jailing and fining people.
On March 31, 2023, the Plaintiff’s file an “Emergency Motion for a Preliminary Injunction” with a separate “Memorandum In Support” of the motion attaching affidavits. On April 24, 2023, the City filed its Response to the Motion with a brief and affidavits. On May 12, 2023 the Plaintiffs filed a Reply. On September 8, 2023, Judge Allison held a hearing on the motion.
INJUNCTION ISSUED AGAINST CITY
On September 21, State District Court Judge Josh Allison entered a Preliminary Injunction against the City of Albuquerque from “enforcing or threatening to enforce” statutes and city ordinance to displace the homeless from public spaces. The Court also enjoined the city from seizing and destroying homeless belongings and mandates a warrant and post deprivation hearings regarding personal belongings seized.
Judge Allison issued the follow injunction orders against the City:
“1. [T]he City of Albuquerque … is hereby enjoined from enforcing, or threatening to enforce as a means of seeking compliance with, any statutes and ordinances against involuntarily unhoused people that prohibit a person’s presence in, or the presence of a person’s belongings on, outdoor, public property.
[T]he City may continue to enforce statutes and ordinances that would prohibit a homeless person from:
(a) obstructing sidewalks (including ramps, stairways, and stairwells), driveways, medians, alleyways, public rights of way (including walkways, streets, roads, trails and other paths, bike lanes, and bike paths), parking lots, and other public roadways and walkways, when such obstructions pose an immediate threat to the safety of any person and the City documents and makes a written record of its findings of the immediate threat to the safety of any person; and
(b) occupying any property of any public school.
2. The City is further enjoined from seizing any unabandoned property belonging to a homeless person that is not contraband or is otherwise unlawful to possess without:
(a) having first received a validly executed warrant authorizing the seizure, or
(b) satisfying a legally-recognized exception to the warrant requirement such that the seizure is lawful or
(c) providing written notice to the homeless person to whom the property belongs that the specific property will be seized and providing a pre-deprivation hearing on the merits of the proposed seizure at least 72 hours prior to the proposed seizure.
3. The City is further enjoined from destroying any unabandoned property belonging to a homeless person without first adhering to the seizure provisions set out above … in the decretal provisions of this Order and without providing a post-deprivation notice and hearing regarding the property’s destruction, which includes a reasonable opportunity to reclaim the property.
4. This preliminary injunction does not enjoin the City from enforcing any statutes, ordinances, or other laws affecting private property or the rights of others to enforce their rights with respect to private property.
5. This preliminary injunction does not enjoin the City from enforcing any statutes or ordinances concerning any other criminal acts of unhoused people (meaning those apart from prohibiting a person’s presence in, or the presence of a person’s belongings on, outdoor public property). If, for example, a police officer has reasonable suspicion of criminal activity taking place by an unhoused person on outdoor public property (e.g., an outdoor fire that is prohibited by law, the destruction of public property, the possession of stolen property, or the unlawful use of a weapon), that police officer is not enjoined from taking lawful action to investigate those circumstances and to enforce those other criminal statutes or ordinances.”
Judge Alison ruled that the Injunction would become effective automatically at 12:01 a.m. on November 1, 2023.
CITY APPEAL JOINED BY BERNALILLO COUNTY DISTRICT ATTORNEY
Immediately after the ruling, the City Attorney’s Office announced the city intended to challenge the decision and responded to the injunction with the following statement:
“This dangerous ruling would severely limit our ability to keep our city clean and safe, while getting people connected to the help they need. We intend to challenge the decision and protect our ability to enforce necessary public safety measures.”
The city has asked the New Mexico Supreme Court to intervene against the injunction. The ACLU has yet to file a response. The city also asking for clarification about the scope of the injunction. The City has has not received a ruling from the Supreme Court nor the District Court.
On November 2, it was reported that Bernalillo County District Attorney Sam Bregman’s office has filed an amicus brief in the ACLU lawsuit brought against the city to try to get more flexibility on how the city deals with unhoused people. Bregman said this:
“As the district attorney, I’m charged with enforcing the laws of the state of New Mexico. And too many times what comes across my desk is the fact that the homeless, the unhoused, are actually victims of horrific crimes. … I don’t have to look past two days ago, two days ago, when a jury came back and convicted [Jeremy Garcia] … of second-degree murder for intentionally running someone over at [Coronado Park] … homeless encampment. … I do believe that we need to focus on long-term housing, but also short-term. We need to make sure we provide enough beds for anybody that is experiencing homelessness and we need to make sure we’re doing it the best we can as far as providing resources. … We can’t accept the idea that we just have to let the them, [the homeless] be. And in other words, we don’t give them the help homeless people need and the community just has to accept it. … It’s not, it’s not acceptable. We need to make sure we get them the resources they need. But at the same time, we need to be able to enforce the law.”
The link to the quoted news source is here:
https://www.koat.com/article/new-mexico-homeless-people-rules/45716458
CITY ACTIONS IN RESPONSE TO INJUCTION
In addition to filing the appeal, the city announced it has been taking steps to provide more shelter for the homeless. On November 1, City officials said the city is already doing much of what the judge is requiring them to do in the injunction. Deputy Chief Administrative Officer Matthew Whelan said this:
“The city has always been doing things that are part of the injunction, like giving 72-hour notice, prior to cleaning homeless encampments that weren’t immediate hazards,”
In September, Judge Joshua Allison found the city was punishing the unhoused by seizing or destroying their belongings without notice, ability to challenge that decision, or opportunities to reclaim their items. In response, Deputy CAO Whelan said this:
“It depends on what’s being cleaned up. … Some stuff is abandoned items that, you know, we do go and we do find an abandoned encampment or things that are abandoned. I know that the supervisors do circle the area to see if they can locate somebody who it is connected to, but if they can’t find that, then it’s just considered abandoned, and it falls into the guidelines of illegal dumping.”
Whelan also said since Judge Alson issued the injunction, the city’s protocols have not changed much. Whelan said this:
“Prior to the entry of the injunction, we consistently had sufficient beds at our West Side Emergency Housing Center. … We have used housing vouchers and hotels in the past, but we just continued to do a lot of the things that we were already doing. We did add another component of additional storage where we can offer storage to people – we had offered this in the past at certain points. But now we’re going to continue to do that.”
Health, Housing and Homelessness spokesperson Katie Simon said the city is taking action in response to the injunction and in anticipation of the onslaught of Winter. Health, Housing and Homelessness spokesperson spokesperson Katie Simon said this:
“The addition of these emergency winter beds is definitely good timing vis-á-vis the injunction. … But we also know that winter is upon us and we want to keep people from freezing.”
At the city’s 24-7 homeless shelter Gateway Center on Gibson, 35 additional beds are being prepared for the cold winter months. The city is also working on infrastructure improvements at the Westside shelter, including renovating bathrooms, adding a warming kitchen and purchasing resources including 490 new bedbug-proof beds, mattresses and pillows to attempt to increase the number of people who can be accommodated at the site.
Links to quoted news source is here:
https://www.koat.com/article/new-mexico-homeless-people-rules/45716458
COMMENTARY AND ANALYSIS
Fiebelkorn’s October 20 email to her constituents is extremely disingenuous, calculating and downright misleading. It borders on malfeasance in office for misleading her constituents. Fiebelkorn mischaracterizes the contents of the court ruling and the injunction. She goes as far as to say the city is seeking more “guidance” when in fact the city is appealing the entire ruling to the New Mexico Supreme Court seeking to have the injunction set aside or “quashed”.
FIEBELKORN MISLEADS BY FAILING TO GIVE REASONS FOR CITY’S APPEAL
Fiebelkorn in both her email and in her resolution fails to disclose why the city is appealing the injunction. The injunction usurps the city’s right to take necessary and preventative action to protect the public health, safety and welfare with the enforcement of public safety laws involving the homeless. Judge Allison essentially ruled the unhoused, because of their homeless status and because there is insufficient housing offered by the city, they have the right to violate the law and illegally camp wherever they want for how long as they want without government interference. Judge Allison found “the City is not constitutionally obligated to provide housing for homeless people” yet he ruled the city cannot “threaten” to enforce the laws against the homeless until the city provides sufficient shelter for all ignoring many chronic unhoused refuse city services.
The Albuquerque Police Department is under a court approved settlement in a federal lawsuit involving jail overcrowding wherein the city agreed not to make arrests for nonviolent crimes, such as trespass on public and private property, illegal camping on all city parks and streets, rights of way, alleyways and open space, shoplifting and prostitution to prevent jail overcrowding. APD is relegated to merely encouraging or telling the homeless to move on and camp elsewhere with no arrest and taking them to jail. Judge Allison has now enjoined such conduct.
FIEBELKORN’S PHONY EXPRESSION OF SYMPATHY A PLOY TO MANDATE SAFE OUTDOOR SPACES
In her email to constituents, Fiebelkorn says this:
“I have a serious concern about what this means for our parks, open space, and all other public spaces in our city. As we learned from Coronado Park, the long-term presence of multiple people can have lots of negative impacts on the land. Imagine this situation in open space, near arroyos, or our neighborhood parks? … This legislation is a step that will let the City develop the needed alternatives in a quantity that will allow us to comply with the judges’ requests quickly.”
When Fiebelcorn says “This legislation is a step that will let the City develop the needed alternatives in a quantity that will allow us to comply with the judges’ requests quickly” what she meant but did not say was city sanctioned Safe Outdoor Spaces are the “alternatives in a quantity” she wants. Failing to disclose is just as good as lying or at the very least misleading. Her comments amount to nothing more than an expression of phony sympathy as she attempts to cram down Safe Out Door Spaces down people’s throats saying they are “will allow us to comply with the judges’ requests quickly”.
During the two years she has been a city Councilor, Fiebelkorn has exhibited a pattern of down right hostility towards constituents who oppose or who disagrees with her votes on policy and legislation, including Safe Outdoor Spaces. Although known for attending the District 7 Neighborhood Coalition meetings to give updates on what is happening in her district, she repeatedly takes issue with those who disagree with her at the meetings and who ask her to reconsider positions. She told the officers of the District 7 neighborhood associations, which boasts membership of 10 neighborhood associations, that the coalition is not reflective of District 7 needs and concerns. She told the coalition’s officers she had already made up her mind on allowing Safe Outdoor Spaces and said she would not change her vote.
Fiebelkorn has always supported allowing the homeless to camp wherever they want without government interference. On June 1, 2 and 3, 2022, a remarkable exchange of emails occurred between City Councilor Tammy Fiebelkorn, who had been in office for 6 months, and former City Cuncilor Pete Dinelli. The purpose of the contact by Dinelli was to request Fiebelkorn’s assistance in removal of a homeless encampment of at least 6 tents in a drainage area East of San Pedro and North of Indian School and across the street from an established neighborhood. What occurred was a brush off by Councilor Fiebelkorn telling Dinelli she could not do anything and he needed to “follow the process” of calling 311 and with Fiebelkorn revealing her unmitigated support for “Safe Outdoor Space” city sanctioned homeless encampments. Fiebelkorn went far as to make a remark that was downright offensive and sexist.
On June 27, 2022, the on line news agency the New Mexico Sun published a column entitled “Community organizer: City council aide ‘called me a Nazi’”. The story was about a citizen contacting Feibelkorn’s office requesting that she not vote for the Safe Outdoor Space resolutions.
The link to the New Mexico Sun Article is here:
https://newmexicosun.com/stories/629452870-community-organizer-city-council-aide-called-me-a-nazi
Safe Outdoor Spaces became one of the most divisive issues dealt with by the City Council in 2023 and in some time. It not only divided the city council but also resulted in major opposition by neighborhood associations and homeowners.
Opposition to Safe Outdoor Spaces was shamelessly dismissed as “not in my backyard.” Safe Outdoor Space city sanctioned homeless encampments are not just an issue of “not in my back yard,” but one of legitimate anger and mistrust by the public against city elected officials and city department employees who have mishandled the city’s homeless crisis and who are determined to allow them despite strong public opposition.
REAL INTENT OF LEGISLATION TO GUT PUBLIC’S RIGHTS OF APPEAL
Fiebelkorn’s resolution R-178 is very short but very broad in scope. If enacted, it will obliterate the public’s right to appeal zoning decisions that affect neighborhoods. The WHEREAS provisions of the resolution give background context that are very broad and very misleading on a number of levels. The resolution fail to even mention the injunction and the court’s findings simply referred to by in Fiebelkorn in her email to constituents nor the reasons the 2nd Judicial District Court issued the injunction.
What is disgusting is that in her email to her constituents Fiebelkorn does not even mention the real intent and purpose of her legislation which is to simply give the City Planning Department exclusive authorization to review and approve Safe Out Doors Spaces in all 9 city council districts on city owned land. The legislation will eliminate the public right to appeal Safe Outdoor Spaces with the Planning Departments’ decision final and not subject to any appeals to the city’s Environmental Planning Commission and the Citizens Land Use, Planning and Zoning Commission nor the city council. She wants to eliminate all review of applications.
CONCULSION
Albuquerque City Councilor Tammy Fiebelkorn fails to understand there is pending litigation with a full trial still pending. She needs to allow the Court process to complete itself rather than jumping the gun and sticking her nose into the process of compliance. It’s the Keller Administration that is responsible for compliance and not the City Council Fiebelkorn needs to allow the city to continue with its efforts and the progress being made by the city to provide shelter.
The city council should vote NO without reservations on Fiebelkorn’s politically motivated and ill advised resolution R-178 and preserve the public’s rights to appeal the granting of Safe Outdoor Spaces.