This evening, November 20th at 5:00 p.m., the City Council will be debating and voting on Order 68, a controversial proposal from Councilors Trevorrow and Rodriguez to legalize long-term camping in public spaces by unhoused individuals this winter. The controversy is evident not only by the dueling rallies being organized by the Maine DSA (in favor) and Portland Voices (opposed) this afternoon, but by the 193 pages of written public comments submitted for the council to review. By contrast, another matter which has been a source of outspoken criticism and debate is the rezoning at 900 Ocean Avenue, and that item received just fourteen pages.
For what Order 68 is, how it works, what all of its provisions mean, and how city staff have responded, read this previous explanatory article at the Portland Townsman.
In the time since that article was published last week, Order 68’s council sponsors have determined that several changes should be made to the proposed ordinance. Several of the changes which the councilors now deem necessary address open questions which the Townsman had identified, while others are responses to staff concerns or other oversights.
To make these changes to the Order 68, Councilors Trevorrow and Rodriguez submitted three distinct amendments, each making a number of revisions. If no further amendments are offered from the floor (i.e. without preparation) by other councilors, the City Council will have four total votes on this subject this evening: one for each amendment, and finally Order 68 itself.
Amendment 1 includes a wide variety of revisions and adjustments to the provisions of Order 68, particularly concerning the exceptions to the order’s broad authority. Amendment 2 adds necessary language to the city’s Parks ordinance to avoid conflicting language. Amendment 3 revises the Land Bank ordinance to prevent the Land Bank Commission from undermining Order 68, should it pass.
While some of the changes now proposed are technical rewordings, changing the meaning of the law very little, others are more impactful. Read on to understand the amendments which the council will be voting on this evening.
This first amendment is an omnibus of revisions across the order’s text. It primarily adjusts and expands the exceptions to Order 68’s provisions, and it clarifies other aspects of the ordinance.
New Exception: Congress Square Park
The change with the least obvious motivation is likely this one, adding Congress Square Park to the list of excepted public spaces in which loitering laws will continue to be enforced. The only non-playground, non-school parks specifically named in the original Order 68 were City Hall Plaza and Monument Square. The former, City Hall, is the active workplace of many city employees and a common destination for residents on business; this is a fairly clear (if debatably valid) justification for enforcing the law there. Monument Square’s reasoning is somewhat less clear, but constitutes a central business and social location downtown.
The reason for Congress Square being excepted is even less obvious, and is not included in the text. It may be motivated by the many activities there facilitated by the Friends of Congress Square Park. But whatever the reason, should Amendment 1 pass, then Order 68 will have no effect on the little park at Congress and High.
Revisions to School and Playground Exceptions
As noted, Order 68 also excepts all playgrounds and public space near schools. Amendment 1 modestly amends this provision, more thoroughly excepting school grounds and facilities. The rewording removes some of the ambiguity of the original draft. More substantially, it also now includes any “athletic field, court, or other athletic facility” on city property, including school property. This alleviates the concern that, for example, the tennis courts in Deering Oaks Park would become campsites. (The rest of the park would still be open to such use.)
Revisions to Sidewalk and Trail Exceptions
The base draft of Order 68 excepts sidewalks in the Portland Downtown District, (roughly congruous with the Old Port,) but not any other sidewalk or trail. However, campers on sidewalks are required to leave at least five feet of clearance for use of the path, and can be forced to move if they do not. This “five-feet” provision was criticized by new police Chief Mark Dubois as being difficult to enforce, and has been revised in Amendment 1.
If Amendment 1 passes, then all sidewalks and trails across the city will be excepted, and campers will not be permitted to even partially obstruct the sidewalk.
Minor Revisions Regarding City Operations
While the base draft includes provisions intended to prevent campers from getting in the way of essential city services, like repair or snow removal, these have been slightly reworded. The specific exception for ingress and egress points of public buildings and private businesses has been removed, and “construction” has been added as a service which may not be obstructed by campers. It is also clarified that while parking rules will be bent from 10:00 p.m. to 6:30 a.m. for unhoused persons sleeping in their cars, that all parking rules will apply to them outside these hours. These revisions, however, ultimately amount to little substantial difference and are mostly technical.
In our previous article on Order 68, it was revealed following research of city ordinances and Maine’s statutes that “unhoused” is nowhere defined, despite having been employed in Order 68 as a pivotal term. Amendment 1 fixes this, including a new definition of “unhoused” without which Order 68 could have been critically handicapped as law.
The definition is quite expansive, and includes six broad characterizations which would qualify an individual as being unhoused. Notably, people who are currently living in a shelter (and this includes those being put up in hotels by the city) do qualify as “unhoused” and thus are entitled to the protections of Order 68. Special provisions are also made for those fleeing domestic abuse and other violence, and those in the process of being evicted. A final, broad definition also includes those who “lack the resources to maintain permanent or temporary housing for longer than one month.”
Under Order 68, only unhoused persons will be entitled to camp in public spaces.
Clarification on Wooden Pallets
The base text of Order 68 includes permission for campers to use, among other things, “carts,” “boxes,” and “wooden pallets” to “create shelter for sleeping and other life-sustaining conduct in public places[.]” This provision drew concern from some who imagined the construction of rigid, primitive buildings with such material.
As this SeeClickFix report shows, this is not a hypothetical scenario. Such structures are already being built, (and this report remains open at time of writing.)
Amendment 1 includes text following the above-quoted provision clarifying that wooden pallets shall only be used lying flat, without any stacking, to be used as a platform. Lifting a tent or sleeping bag off the cold ground helps keep campers warm.
Amendment 2 is an important (if somewhat technical) revision to section 12 of chapter 18 in the city code, Parks, Recreation and Public Buildings. This section outlines the city’s duty to maintain all parks “predominantly in their natural, scenic, open and/or intended condition.” This is important, because even if someone’s usage of a park is legal, this section puts the burden onto the city for not allowing any usages which would result in the park becoming built-over or damaged. There is serious concern that large-scale, long-term camping by unhoused persons will cause such obstruction and damage, including from Portland’s park staff.
Amendment 2 resolves this potential conflict of ordinances, in which the city could be directed to do two opposite things, by explicitly authorizing camping as a use which shall not be prevented by this section. Other such uses are similarly protected, and to these is added camping. This way, neither park staff nor any other arm of city government would be able to use 18-12 to undermine Order 68, should it pass.
Other parts of the ordinance are also slightly revised to account for this added provision.
In the most politically intriguing revision of the bunch, Amendment 3 drags in a hitherto unamended part of the city code: Chapter 2. Specifically, Section 42 under Article III-A, which establishes the Land Bank Commission as the governing body of those pieces of property which are owned and protected by the city through the Land Bank. The Land Bank Commission has relatively broad authority over the properties they administer, and so could have potentially undermined Order 68’s provisions as they apply to that land.
Whether or not they would have done so, opening a complex and contentious breach between the Commission and the City Council, will likely never be known. Amendment 3 amends Section 42 to explicitly disempower the Commission from acting to prevent unhoused individuals from camping on Land Bank land if they are so authorized by the City Council. No recommendation or other action from the Commission will have any impact on Order 68’s provisions whatsoever, if passed. Another potential vulnerability addressed.
These amendments subtly but significantly alter the character of Order 68, and such amendments submitted by a proposal’s sponsors are typically approved by the City Council as a courtesy. Anyone who plans on offering public comment on this item this evening should keep these changes in mind.
Update 11/20/2023: Steven Scharf, citizen watchdog and regular public participant in council meetings, contests the above characterization as the amendments being likely to pass as council courtesy. His experience suggests that these are substantive amendments which are likely to be debated; it will become clear this evening how the council will respond.
If you would like to make such a public comment, be sure to be present in City Council chambers this evening, November 20th at 5:00 PM. If you can’t or won’t watch the meeting in-person or by Zoom, but still want to read in detail about the twists and turns the Council makes this evening, be sure to subscribe to the Portland Townsman and read Erica Snyder-Drummond’s City Council Review series.
Ashley D. Keenan – Ashley is an editor of the Portland Townsman, with work focusing on the mechanics of local government and housing policy, and also a member of Portland’s Historic Preservation Board. You can reach Ashley personally at email@example.com.