“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. On June 6, 2022 despite significant public outcry opposing Safe Outdoor Spaces the Albuquerque City Council enacted the legislation and passed it on a 5 to 4. The Integrated Development Ordinance (IDO), the city’s land use ordinance, 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.
AMERICAN CIVIL LIBERTIES UNION SUES CITY
On Monday, December 19, 2022 the American Civil Liberties Union of New Mexico, the NM Center on Law & Poverty 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 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 all over the city, seizing and destroying personal property and jailing and fining people.
On September 21, State District Court Judge Josh Allison entered a Preliminary Injunction against the City of Albuquerque 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.” The Court also enjoined the city from seizing and destroying homeless belongings and mandates a warrant and post deprivation hearings regarding personal belongings seized. The injunction prohibits the city from punishing “the mere presence” of homeless individuals on public property due to a lack of beds made available to then by the city. That includes moving people camped on public property, with a few exceptions, and seizing the belongings of people staying on the street. The Court “ further enjoined from seizing any unabandoned property belonging to a homeless person that is not contraband or is otherwise unlawful to possess without” a warrant.
Immediately after the ruling, the City Attorney’s Office announced it was appealing the injunction ruling to the New Mexico Supreme Court requesting that the injunction be set aside. The injunction went into effect on November 1. 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.
FIEBELKORN CLAIMS RESOLUTION IN RESPONSE TO COURT INJUNCTION
District 7 City Councilor Tammy sponsored Resolution R-17 claiming she sought to address the court injunction by making available to the homeless city sanctioned Safe Outdoor Spaces to camp. The resolution called for suspending all administrative appeals of safe outdoor spaces by the general public. Under the resolution, the decisions of the Planning Department with regard to applications for Safe Outdoor Spaces would be deemed final administrative decisions. Those decisions granting the applications would not be subject to appeal to the Land Use Hearing Officer nor the City Council.
The bill directed city staff to quickly find 3 suitable locations for safe outdoor spaces for approval. Within 60 days the city would be required to provide more answers, including how many beds the city would need to house every single homeless person.
The Keller Administration has claimed it has been the public appeal process that has held up organizations attempting to set up the outdoor shelters. Currently, two safe outdoor spaces have successfully gone through the permitting process and are in operation. Both are attached to existing shelters and are only available to people with vehicles. City officials said there are no other Safe Outdoor Spaces in operation with one reason given being is the application process to run a site is too challenging.
According to Fiebelkorn, her resolution would immediately address the court injunction as the city works to increase the number of available beds without allowing encampments to proliferate in open spaces like parks and sidewalks. Fiebelkorn said this:
“There was a lot of applications but not a lot of folks that had all the legal knowledge and time to spend going through this permit process. So this [bill] kind of shortens that time frame, reduces the burden on people that want to apply for these, so we can do them quickly. … It would just streamline the permit process so that we can get some of these up and going in the next 45 days or so. … I believe the long term solution is more overnight shelters, but right now we do not have enough of those to provide services to every person that’s homeless in our city”.
CITY COUNCIL VOTES “NO”
On November 8, the Albuquerque City Council rejected Fiebelkorn’s R-17 on a 4 YES to 5 NO vote. Voting yes to approve were Progressive Democrats Fiebelkorn, Pat Davis, Isaac Benton and Conservative Republican Trudy Jones. The same 4 had voted to allow Safe Outdoor Spaces in June. Davis, Benton and Jones are now lame ducks and chose not to seek another term and are leaving the Council come January 1. Voting NO were Conservative Republicans Dan Lewis, Renee Grout, Dan Lewis and Conservative Democrat Louie Sanchez and moderate Democrat Klarissa Pena
In voting NO, Councilor Brook Bassan called removing the appeals process “undemocratic”. Councilors Renée Grout and Louie Sanchez also said the no appeal provision made the bill a “nonstarter” for them as well. Sanchez said the administration has a plan to address the injunction and increase the number of beds.
Carol Pierce, director of the city’s department of Health, Housing and Homelessness, said beds are available and the city has yet to run out. She hesitated to say the supply would remain sufficient as winter approaches. The department is using a new tool that tracks available beds, which Pierce said has already been useful.
Links to relied upon and quoted news sources are here:
COMMENTARY AND ANALYSIS
City Councilor Tammy Fiebelkorn was very disingenuous, calculating and very misleading with her sponsorship of R-128 and as she pushed for immediate action by a lame duck city council. In an October 20 newsletter, she wrote about and mischaracterized the pending legal case file by the ACLU against the city that is still pending trial and is also on appeal to the NM Supreme Court as it relates to the injunction. Her actions border on malfeasance in office because she mislead her constituents as she mischaracterized the contents of the court ruling and the injunction and the actual purpose of the resolution. She went so far as to say in her email to her constituents 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 in both her October 20 email to constituents 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.
NEVARIOUS PURPOSE AND INTENT OF RESOLUTION
Fiebelkorn’s resolution R-178 is very short but very broad in scope. If enacted, it would have obliterated 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.
What is disgusting is that the real intent and purpose of the legislation was 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 would have eliminated 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.
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 meddling 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.
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 such as Councilors Fiebelkorn, Davis, Benton and Jones and Mayor Tim Keller and city department employees who have mishandled the city’s homeless crisis and who are determined to allow them despite strong public opposition.
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. It was the right thing for the Albuquerque City Council to vote NO on Resolution R-17.
The link to a related blog article is here:
Disingenuous And Calculating City Councilor Tammy Fiebelkorn “Fast Tracks” Resolution To Eliminate Public’s Rights To Appeal “Safe Outdoor Spaces”; Resolution In Response To Court Injunction Prohibiting City From Removing Homeless Encampments; Fiebelkorn Resolution Empowers City Planning To Approve SOS Applications With No Public Appeal And No City Council Intervention; Council Should Vote No