What is Order 68?

City Councilors Trevorrow, District 1, and Rodriguez, At-Large, are introducing at tonight’s City Council meeting Order 68, amending the city’s code of ordinances to allow for long-term camping in public spaces across the city (with noted exceptions) over the winter. This is in response to the crisis of homeless encampments and the periodic sweeps of these sites. This amendment, which would give legal standing to the unprecedented agglomerations of tents and shelters which have been cyclically built and demolished this year, has electrified the public and is expected to bring a heated and emotional debate to council chambers.

The text of the amendment can be read in full here. This amendment would affect Chapter 17, “Offenses,” Chapter 18, “Parks, Recreation and Public Buildings,” and Chapter 25, “Streets, Sidewalks, and Other Public Places” in the code.

The amendment will receive a “first read” at tonight’s City Council meeting, which is at 5:00 PM this November 13^th, 2023. A first read is necessary for many ordinances, and means that it can’t be voted on by the council until the following meeting, which in this case is next Monday the 20^th of November. The public will be able to offer written comments for both of these meetings, and spoken comment at the latter of these at 5:00 PM in council chambers.

https://www.high-endrolex.com/12

For full coverage of these council meetings, be sure to read the Portland Townsman’s thorough coverage in City Council Review.

But what will this controversial amendment actually do? Such controversial proposals always incite careless (and sometimes deceitful) voices on social media and in conversation to make claims which aren’t actually true. What are Councilors Trevorrow and Rodriguez actually suggesting be done?

Background

Before proceeding, it’s important to understand some important aspects of the current circumstances.

Scale of Encampments

As stated, the growth of sprawling tent complexes in Portland has reached new heights in 2023. The city maintains an interactive heat map tracking known tent sites, and over 200 tents are known to be currently erected and occupied. Expansive encampments behind Trader Joe’s, along the Fore River Parkway, on the I-295 – Forest Ave. ramp, in the Marginal Way Park-and-Ride, and several other sites have already been “swept” by either city or state staff for posing safety, health, hygiene, environment, or other risks to both residents and the public.

City-coordinated relocations, which have been colloquially dubbed “sweeps,” are organized by the city’s Encampment Crisis Response Team (ECRT), and are employed after months of outreach to residents of encampment sites. State-coordinated sweeps, on the other hand, are performed with little warning to residents and merely cursory cooperation with shelter and housing groups. Such a state sweep was most recently conducted along the I-295 ramp.

Shelter Capacity and Asylum Seekers

While according to (now outgoing) Director of Health and Human Services in Portland, Kristen Dow, encampment residents were all individually offered priority placement at Portland’s city shelters, these shelters have nevertheless been filled to capacity every night this year. After the priority placements offered to encampment residents in the morning by the ECRT are accepted or (more commonly) declined, open beds at the Homeless Services Center (HSC) and other shelters are opened to the general public and filled.

Part of the reason for the fullness of shelters is the massive influx of asylum seekers, largely from central African nations including Angola and the DRC, into Portland over the past year. Estimates vary, but as many as 2,000 such individuals have arrived in Portland since January 1^st, 2023. These asylum seekers, who arrive in the country by illicitly crossing the border or by entering the country on a different pretext, are observed to be generally less shelter-resistant than other unhoused individuals, and willing to comport with shelter restrictions. For this reason, heavy majorities of all residents in city-run shelters, (including 100% of the available spaces in the family shelter,) are asylum seekers.

The Expansion Fight, Two Rounds In

With the capacity of shelters at such maximums, the City Council has over its past two meetings weighed the option of invoking a limited state of emergency around the HSC in Riverside. This state of emergency would empower city staff to bypass certain zoning and building regulations to increase the maximum capacity of the city’s newest and largest shelter. At the first meeting in which this proposal was debated, Councilors Rodriguez, Fournier, and Ali, as well as Mayor Snyder, voted in favor, while Councilors Trevorrow, Dion, Zarro, and Pelletier voted against, all for their own varied motivations. This left Councilor Phillips as the deciding vote, and after agonizing for a time, ultimately voted against.

But this agonizing continued, because at the following City Council meeting, Ms. Phillips reported that she had received more information and had a change of heart, and asked the Council to reconsider the proposal to which she would now vote ‘yes.’ Disastrously, however, Councilor Fournier was absent at this meeting, and so the pro-expansion coalition lacked one of its crucial votes. Deadlocked at 4-4, the matter was punted to the next meeting, which is this evening’s, November 13^th.

This ongoing battle over the legal capacity of shelters has been a crucial backdrop for this debate.

Update 11/13/2023 - ROUND THREE

On the evening of November 13, the City Council at its third encounter with the order finally approved the limited state of emergency. This will allow for city staff to increase the capacity of the HSC by 50 beds. It remains to be seen how this approval will affect the debate over Order 68 on November 20.

Bypassing Committee

It also must be noted that Order 68 had a somewhat unorthodox provenance as a council agenda item. Typically, these sorts of policy amendments are expected to be debated in committee before being recommended to the City Council as a whole. The responsible committee for this domain is the “Health & Human Services & Public Safety Committee,” or “HHS Committee,” which is chaired by Councilor Fournier and has Councilors Trevorrow and Pelletier as its other members, (a progressive slate.) The HHS Committee recently recommended to the City Council a resolution deprioritizing the enforcement of state laws against psilocybin mushrooms and other psychedelic drugs.

Even though the HHS Committee is made up of members who would likely be friendly to this proposal, Councilors Trevorrow and Rodriguez opted to bypass the committee process, work with staff to produce the Order’s text, and present it directly to the City Council. While this may be frowned upon by some, it’s not a wholly unusual practice, especially when time is of the essence. As winter is rapidly approaching, this was likely a key motivation.

So what is Order 68?

What It’s Not

Well first, it’s important to know what it’s not.

Order 68 Does Not Ban “Sweeps”

Many have been referring to Order 68 as the “Stop the Sweeps bill” or similar, and it’s clear why this connection is made. Many progressive groups have adopted “Stop the Sweeps” as a slogan, including Preble Street, the ACLU of Maine, the Maine Democratic Socialists of America (DSA), the Independent Socialist Group, and others. But “sweep” is, obviously, not a legal term. It’s used colloquially to refer to the mandatory relocation of a homeless person and their belongings, but this can be done for any number of reasons.

Order 68 does legalize indefinite loitering, which will be further explicated, but it does not prevent the city or state government from removing homeless persons and their belongings for other reasons. Indeed, it may not even fully legalize all forms of loitering, as Maine’s statutes have their own provisions against such activity which city ordinances cannot override.

Nevertheless, Order 68 will remove the most basic justification for the sort of routine, blanket sweeps which the city has been undertaking. This does not mean that the city would never have cause to move large numbers of unhoused campsites again, but it does mean that more significant cause would have to be cited for these acts.

Order 68 is Not Permanent

Despite what some early reports indicated, Order 68 has a firm expiration date of April 30^th, 2024. At 11:59 PM that night, the provisions of Order 68 will cease to be operative and the City Clerk is directed to remove the now-irrelevant text from the city’s books. Order 68 is intended as a measure for the winter of 2023-2024.

However, the provisions of Order 68 could be extended. When that time comes, will the newly shaken-up City Council see fit to let it expire and let sweeps resume after so long a pause?

So, with these two major misconceptions disposed of, let us review what – specifically – Order 68 is.

What is Order 68?

In short, as has already been stated, Order 68 legalizes for “unhoused” persons indefinite “loitering” in “public places” until April 30^th, 2024. But what do these words really mean?

Definitions (Sec. 17-1, Portland Code of Ordinances)

To “loiter,” as a legal term, is to remain “in essentially one location, seated or standing, and shall include… to be dilatory; to linger; to stay; to saunter; to delay; and to stand around” in a public place. A “public place,” interestingly, is not the same as publicly-owned property, but rather:

“[A]ny place to which the general public has access and a right to resort for business, entertainment or other lawful purpose, but does not necessarily mean a place devoted solely to the uses of the public. It shall also include the front or immediate area of any store, shop, restaurant, tavern or other place of business and also public streets, sidewalks, ways, grounds, schools, areas or parks.”

While Order 68 has been often thought of as affecting parks and other city-owned land, this would also affect privately-owned land as well, at least that privately-owned land which includes “public places” like storefronts.

A Missing Definition?

What does it mean to be “unhoused”? Or to be an “unhoused person”? These terms, present in the text of Order 68, are currently used nowhere else in Portland’s Code of Ordinances, and thus obviously have no formal definition. “Unhoused” is used a handful of times in Maine’s statewide statutes, but there it also has no definition. While it’s clear what the general meaning is, a person without a permanent home, it is worth noting that this will be a new legal term with no formal definition at this time, to the best of our knowledge.

In any case, the provisions of Order 68 only apply to “unhoused” individuals, if you are not “unhoused” it would remain illegal to loiter in public places.

Three Overlapping Allowances

More specifically, what can unhoused people now do? Order 68 has three parts, amending Chapters 17, 18, and 25 respectively.

The first part, amending Chapter 17, is a straightforward exemption to the ordinance against loitering for unhoused individuals until April. It states that “[I]t shall not be unlawful for an unhoused person living in the city to camp, sleep, sit, and otherwise loiter in any public place…”

It goes on to include information about certain exceptions to this broad exemption, and it contains information about building structures, both of which will be addressed below.

The second part, amending Chapter 18, amends the specific regulations around parks and public facilities in Portland. It reiterates the broad permission to camp, sleep, etc. and names its own (largely redundant) exceptions.

An Unnoticed Permission for Cars

It then, however, also explicitly gives permission for unhoused people to “stay in a parked vehicle on any drives, streets, boulevards, promenades, or roadways in any parks of the city… between the hours of 10:00 p.m. and 6:30 a.m.” so long as the vehicle is not blocking traffic. This provision is actually more notable than it may at first appear, as this blanket permission to park along streets in city parks at night – as long as you’re an unhoused person – seems to override all other parking and traffic restrictions. Not even a legal spot seems to be required.

While normally where one can park one’s car in a city park is fairly limited, this opens the door to a much more loosely-regulated nighttime environment for drivers. This expansion of parks parking has gone fairly unreported, compared to the other provisions of this proposal.

The third and final part concerns structures and permitting, which will be reviewed below.

Exceptions to the Exemptions

While the initial impression is quite broad, a number of exceptions are carved out. All playgrounds, all areas within 250 feet of a school, and a list of named playgrounds (to be extra sure) have been outlined as areas to which this legalized loitering will not be extended. Further, Monument Square and City Hall Plaza have both been named as parks in which the current laws will continue to be enforced, as are all public sidewalks within the jurisdiction of the Portland Downtown District.

Roads, streets, and highways are of course also exempted; no camper is allowed to obstruct the road. Ingress and egress, (legal terms for entrance and exit,) points for buildings also can’t be obstructed; tents can’t block doors. Sidewalks are not an exception, it would be legal to camp on and obstruct sidewalks, so long as at least 5 feet of walkable width is maintained.

Structures and Permits

Perhaps the most striking line of text in Order 68 is the following:

“For purposes of this subsection, the terms camp and camping refer to activity by unhoused people who use tents, tarps, wooden pallets, sleeping bags, blankets, boxes, carts, and other non-structural equipment to create shelter for sleeping and other life-sustaining conduct in public places.”

Per the above-mentioned exemptions, in everywhere not named by an exception, it would be legal for unhoused individuals to build structures using materials like those mentioned for semi-permanent habitation. The specificity of terms like “wooden pallets” and “carts” (shopping carts?) certainly caught this writer’s attention.

The third section, concerning ordinances around public ways, explicitly grants unhoused people a general waiver for permits to build these structures and signs. Normally, to build something on or next to a public way, the builder would need to apply for a permit first, but this bit of bureaucracy has been waived for the unhoused in Order 68.

This is Order 68, nothing more and nothing less.

What did staff think?

Staff Memorandum

In an unusually strong chorus of denunciation, the heads of Portland’s government departments immediately expressed their grave opposition to this ordinance. Released simultaneously with the agenda item, the joint memorandum of six department heads shows a real and deep apprehension about the actions that the Council will take this evening. City Manager Danielle West opens the memo, outlining her colleagues who are to follow and stressing the fiscal impact that this would have on the city’s resources.

Manager West cites a fiscal impact statement which has not yet been added to the packet, but is expected to be added today.

Following West, Director of Parks, Recreation, and Facilities Ethan Hipple gives his own indignant response to what he perceives as turning over the city’s parks to the encampments. He warns of the “degradation and long term damage of public spaces” that would occur, and that would “lower the overall quality of life in Portland” and “prolong inhumane and dangerous living conditions.” Hipple went on to stress that turning parks into encampments would take them away from the public, explaining that parks “should be available and welcoming to everyone,” and that “entrenched encampments are incompatible with the safe and healthy use of a park.” He goes on to cite Portland, Oregon; San Francisco; and Denver as cities which have passed similar measures, seen disastrous results, and are now trying to reverse them.

Next, Alfredo Vergara, HHS Public Health Director, explained that “the health risks of homeless encampments affect primarily the residents of the camps” but also the public at large. He notes specifically that at these camps the “dirty needles,” lack of waste disposal, “fecal – oral” contamination, outbreaks of “rodents, lice, and other infestations,” and other conditions heighten the risks of infectious disease, “e.g. HIV/HepC, HepA, TB, COVID, typhus, flu, and others[.]” He also showed concern about extreme weather, fire hazards, and risks to first responders.

New Police Chief Mark Dubois weighs in with his own concerns, echoing much of what his colleagues already wrote. In addition, he shared the incredible strain that would be put on the Portland Police by trying to keep tabs on a widely dispersed homeless population, as well as his doubts that provisions like the 5 foot sidewalk rule could be enforced. He explained that the breadth of Order 68’s exemptions would permit loitering in shopfronts and other semi-private areas, which would cause a “drastic increase” in calls to businesses and homes to deal with bad interactions with the homeless, calls which the PPD already deal with multiple times per day. He also illustrates examples of how Order 68 may conflict with state law, putting Portland’s police officers in a fraught position.

Director of Public Works Michael Murray focused in on one overlooked effect of the law, the impact on snow plowing.

Murray explained that with tents along the sides of roads and sidewalks, (he used the above image to illustrate,) his department can’t use plows to clear snow from them without burying the campers.  Mary Davis, Interim Director of Housing and Economic Development too zeroed-in on just one particular area: the waterfront. According to Davis, Order 68 would severely disrupt both the working waterfront – where many of Portland’s most at-risk minority residents make a living – and also tourist and other business activity.

This sort of unanimous and strident rejection of a councilor’s proposal likely hasn’t been seen since before Kate Snyder became mayor.

Community Reaction

Just as passionate, but much less united, the people of Portland too have offered their perspectives on this issue. The revelation of this specific order was revealed early on by “Enough is Enough,” a ballot question committee associated with rejecting DSA-sponsored referenda. By way of a Freedom of Access Act (FOAA) request, they were able to publish to their mailing list an early glimpse of the text, and started immediately stirring up opposition to it. Their headline, however, contributed to the common misconception that this is a permanent legalization of loitering, rather than the time-limited measure that it is.

Influential voices have spoken on both sides. Cullen Ryan, Executive Director of Community Housing of Maine wrote in opposition to Order 68, as published in the Press Herald. Progressive Portland, meanwhile, which is a left advocacy group active on social media, cited a brief from the National Health Care for the Homeless Council and an independent study led by a doctor from the University of Colorado in favor of its merits.

Organizations have been active too, with the Maine DSA already demonstrating explicitly in favor of Order 68. A more obscure group, “Portland Voices,” which has little internet presence but is said to have at least one hundred members, has apparently also been attempting to organize, but against Order 68.

Written public comments for this evening’s meeting have already been published, and they split fairly down the middle, with many on both sides of the issue. However, it’s interesting to note that every single explicitly pro-Order 68 comment used the same subject line: “Lower Shelter Barriers and Stop the Sweeps.” The body text varied, and in fact many of the emails didn’t even mention shelter barriers outside the subject line, but its clear that there was an organized effort to utilize this slogan in their subject lines. (There was also, at time of writing, one ambiguous comment which may be interpreted as pro-68 which uses a different subject line.) The anti-68 comments have no such uniting shibboleth, (sometimes to the detriment of individual comments,) but do generally refer to a similar collection of objections.

Make Your Voice Heard

If you would like to add your own voice to the chorus, either submit your comment ahead of time by email for inclusion among the written comments or be there at 5:00 PM on Monday, November 20^th for the council meeting at which they will be voting on this order. Written comments submitted already are available now for this evening’s agenda packet for review.

Correction 11/13/2023: A previous version of this article misstated the date of in-person public comment.

Whichever side you support, Portland’s councilors will have a difficult decision before them, and your voice may make a difference.

Ashley D. Keenan – Ashley is an editor of The Portland Townsman, writer, local small business-owner, and Maine native. Her work primarily covers the mechanics of local government, the ongoing housing crisis, responsible market economics, and New England culture and history. She lives in Portland with her fiancé and can be personally reached at ashley@donnellykeenan.com.