The Berkeley City Council on Tuesday approved a scaled-down version of a policy limiting how sidewalks can be used, years after the controversial concept was first proposed in Berkeley.
The new rules address where and when objects can be kept on sidewalks, and spell out how enforcement will occur. Proponents said the regulation simply applies to material items and is necessary on Berkeley sidewalks, where objects and debris often pile up and obstruct accessibility for pedestrians and people with disabilities. Opponents said the rules are anti-homeless, criminalizing some of the very people they purport to help.
The new rules apply to any personal belongings that are not for sale and not “in transit,” except mobility devices like wheelchairs and small blankets or cushions. The policy prohibits all other objects on sidewalks in residential districts. In commercial and manufacturing districts, belongings cannot be left unattended for more than two hours or block access to driveways, crosswalks, buses, transit stops, trash cans and other public structures or accessibility features. Objects are also prohibited on the sidewalks on blocks where there is a BART entrance, and by building entrances between 10 p.m. and 7 a.m.
Seven council members voted to approve the regulations, with City Councilwoman Cheryl Davila abstaining and Councilman Kriss Worthington absent.
Mayor Jesse Arreguín, who authored the item with Councilwomen Sophie Hahn and Linda Maio, called the regulations “reasonable rules.”
“We need to ensure our sidewalks are usable by all people,” he said at Tuesday’s meeting, where many community members lined up to mostly criticize the proposal before the council.
Hahn tried to stress at the beginning of the discussion that enforcement of the rules would be “low priority” and rarely handled by police.
The new regulations allow enforcement officers — typically from public works or code enforcement, staff said Tuesday — to tell people to immediately move objects that are in “the path of travel” or by a BART entrance. Those objects can be taken and stored for pick-up if they are not moved within two hours.
In general, enforcement should be “a low priority,” the regulation says, except when objects have been in the same place for more than a day or when they accumulate on a block. Removal between 10 p.m. and 7 a.m. is also a low priority.
Enforcement officers can tell people to reduce the space their belongings take up to a 9-square-foot area, or they can remove the objects and take them to storage after giving a 24-hour warning.
At the meeting, the council amended the ordinance to allow staff and police to issue administrative citations or infractions when people refuse to move their belongings.
The citations are “used pretty regularly” by code enforcement as a consequence for code violations, said supervisor Bill Burke. But they are typically given to property or business owners, he said. The fine is $100 per day for the first offense, and it increases after that.
Berkeley Police Chief Andrew Greenwood, responding to a clarification question from Hahn, said police could issue an infraction if someone resists the removal of their belongings.
“If a person resists and assaults or tries to assault an employee…it could potentially get into a misdemeanor arrest. I think having an infraction as an option reduces some of the likelihood of that,” Greenwood said. “It is a low priority. The expectation is not that we go out looking for this.”
Some council members questioned giving fines to homeless people, who may be most likely to have objects on the sidewalk.
“I don’t support efforts that will further criminalize poverty,” said Councilman Ben Bartlett, who introduced legislation last year to establish debt forgiveness and extensions for parking citations. The program is still in development.
“I am not in favor of any citations,” said Councilwoman Kate Harrison. “The objects aren’t being given tickets — the humans are being given tickets. These are citations they will never be able to pay…and will eventually turn into warrants.” She said the city should waive fines if the person who was ticketed agrees to participate in a program or do community service.
She said she otherwise supported the regulations.
“My heart is somewhat broken. What we have here is the effect of poverty…At the same time, I can’t really say to a resident who has stuff in their front yard and doesn’t have a lot of money, and can’t afford to pay someone to clean it up, that it’s okay they repeatedly have to clean it up,” Harrison said.
The council also voted on the consent calendar Tuesday to direct staff to explore a non-criminal enforcement option, such as Harrison’s suggestion for community service.
During the public comment period that evening, several speakers told the council that the new regulations are inhumane.
A speaker from the Homeless Action Center said she’s grateful for the new homelessness services in Berkeley, but is worried about the impact of the new rules, particularly on those whose tents could end up getting removed.
“Some people need to be in a tent during the day because they work at night — because they’re sick, tired and overwhelmed,” she said. “There are no opt-outs in this regulation for disability.”
The original proposal would have only allowed objects to remain unattended for an hour, but Davila successfully proposed an amendment doubling that to two hours. Davila pointed out that a person in a wheelchair might need more time to return to their belongings after leaving for a shower, for example.
Some speakers from the business community told the City Council they supported the new rules.
“As our streets become more and more populated with people who lose their housing, we’re going to need to learn how to share that space together. The only way forward is to create boundaries for all parties,” said Kirsten MacDonald, CEO of the Berkeley Chamber of Commerce. She said the chamber has received numerous complaints from merchants about objects in their doorways.
Downtown Berkeley Association CEO John Caner said his merchants are “struggling” too.
Davila said the “elephant in the room” was the new Downtown Berkeley BART Plaza, set to open Thursday. She suggested that the regulations were an attempt to rid the area of homeless people in time for the opening.
Councilwoman Lori Droste said she didn’t view the new rules as the cruel restrictions some speakers saw them as.
“Allowing everyone — disabled individuals, homeless individuals, children, everyone — access to public space, rights of way, sidewalks — and being compassionate — both of those things aren’t mutually exclusive,” Droste said.
The rules approved Tuesday update a vote in April to pursue sidewalk limitations. At that meeting, the council voted to support the creation of an ordinance limiting when and where people could sit and lie on the sidewalk, and restricting dogs and object on sidewalks.
The April action was not the first step the council took toward establishing sidewalk rules. In the 2012 election, former Mayor Tom Bates and his council majority asked voters to approve Measure S, restricting sitting and lying on Berkeley sidewalks. The controversial measure prompted demonstrations and complaints that the rules would criminalize the homeless. The measure failed but in 2015, a split City Council voted, amid protest, to enact sidewalk rules. Those rules had still not been put in place when the new council revised them in April this year.
In September, however, the Ninth Circuit issued a ruling that caused to the city to halt some of its plans. The Martin v. City of Boise decision found enforcement against people sleeping on public property, due to lack of shelter options, unconstitutional. The regulations proposed Tuesday only dealt with objects, not behavior on sidewalks.
The council Tuesday also directed city staff to analyze the implications of Martin on Berkeley’s existing practices and the rules proposed in April, before moving forward with more comprehensive restrictions.