Judge denies injunction plea, rules city of Bend can proceed with sweep of Hunnell-Clausen homeless encampment

(Update: Judge denies injunction, says city has followed rules, sweep can proceed. Added video, statements from residents)

BEND, Ore. (KTVZ) – A Deschutes County judge late Monday afternoon denied an injunction sought by homeless residents along Hunnell and Clausen roads to block a planned clearing and closure of their years-old encampment, due to start at midnight, saying the city followed its camping code and rules in legal fashion.

Three residents and a homeless advocate had gone to court last week in a last-ditch bid to head off the camps’ removal, claiming officials had failed to provide them a place to go or to provide “reasonable accommodation” under the federal Americans with Disabilities Act.

But after hearing another round of arguments and reviewing both sides' submissions, Circuit Judge Wells Ashby said the city has “not only the right but the duty” to manage its streets for vehicle and pedestrian uses, and to set time, place and manner regulations for such activities can occur.

“Hunnell and Clausen are not immune to those regulations,” he said, while noting that the city’s accessibility manager has granted those who submitted the ADA-related requests an extra week to work through the process.

“The issue for the court is the legality of what the city is doing, and the court finds the city has the legal authority to proceed,” Ashby said, adding that the court “has no right to order a safety review by the city,” as the plaintiffs sought.

As for the residents’ claim that the chosen date and time for the sweep is “arbitrary,” Ashby said, “At some level, there is no good date and time. I don’t think there would be a good date and time” agreeable to all.

The homeless residents claimed the closure will be disruptive, and the judge acknowledged that “this is not recreational camping. People have formed relationships and connections. But the court’s role is to review the law and submissions. That is the court’s finding. That is all.”

Homeless advocate Charles Hemingway had argued before the ruling that the closure’s timing was not only “arbitrary and capricious” but poorly timed amid a summer heat emergency. And while he said he appreciated city Accessibility Manager Cassandra Kehoe’s efforts, allowing some people to stay and forcing others to leave is “highly traumatic for both parties, particularly those with disabilities.”

Assistant City Attorney Elizabeth Oshel noted that a temporary restraining order can only last 10 days, and with the one week granted to those seeking ADA accommodations, such an order would not grant substantively more relief than the city already has.

One of the plaintiffs, Michelle Hester, told the judge: “This isn’t camping. Campers get to go home. We don’t. We’re not camping, we’re surviving and trying to stay alive.” And she said despite her best efforts, her RV is still not running.

“Just give us some time, so we can get our stuff together and get out,” she said. “That’s all we’re asking for.”

Hester also said that she can't move her RV, telling us earlier: "I still need to get parts. If I can't fix it, then I have to get it towed, but I'm not from here so I don't know anyone who can help me."

Stacey Ray used to live on Hunnell Road and now lives in St. Vincent De Paul's new village. She has tried to help residents with their cars and RVs this week, in time for the deadline.

"It's usually ignitions, people lose their keys. Also replacing or fixing tires," she said.

Ray is also working with an outreach program to pay for annual passes on KOA sites, for those who have RVs. Those cost $400.

In a court filing earlier Monday, a city official reviewing nearly two dozen requests for "reasonable accommodation" under the Americans with Disabilities Act - a key part of the lawsuit - said she was notifying those who submitted such requests they will have an additional week before any removal efforts begin.

The homeless residents had submitted a proposed settlement Monday that would have allowed people to stay at the location for months, possibly to year's end, under a "freeze" on any newcomers and a requirement to take part in a relocation plan.

“In the spirit of providing equity justice and humanity” to those who filed last week’s complaint, the plaintiffs offered to meet with the city “to determine a mutually agreed-upon date by which Hunnell and Clausen will be cleared of existing residents, allowing enough time for service providers to work individually with each resident on (a) relocation plan. Plaintiffs propose December 31, 2023.”

But as of August 1, under the proposal, “the numbers of Hunnell/Clausen residents will be frozen. A by-name list of residents in place on that date will be drawn up. No new persons camping or in RVs, cars or trailers will be permitted.”

Also, they proposed, “Once a resident leaves Hunnell/Clausen, the resident is not permitted to return.”

What’s more, only residents who agree to take part in a “relocation program that will be administered by service providers” would be allowed to stay after August 1. Also, anyone who agrees to stay under those terms but is charged with a violent crime would be given notice to vacate.

The city, in return, would promise to “continue to work to find a place where residents can relocate to.”

The plaintiffs filed a 25-page response to issues raised by Deschutes County Circuit Judge Wells Ashby at Friday’s emergency hearing on the requested injunction to block the closure.

The city, meanwhile, filed a 16-page response and 60 pages of background documents as exhibits, claiming a temporary restraining order or other action is not justified.

“The city has followed its policy and would have done so without any court action, consistent with its demonstrated practice,” the document states.

In its conclusion, Assistant City Attorney Ian Leitheiser says the city “understands Plaintiffs made an effort to do what the thought best for people who have been staying in the Hunnell and Clausen area,” and that many residing there “may have faced or are facing hardship in their lives.”

“Even without this litigation, had any of those individuals, including Plaintiffs, contacted the city about reasonable modification requests, they would have achieved the same results: prioritization of the requests and speedy processing by the City, and answers provided before the beginning of the closure that granted additional time in accordance with the City’s policy,” he wrote.

In her own court filing declaration, city Accessibility Manager Cassandra Kehoe said that after reviewing the ADA accommodation requests, "I concluded that the city could grant a modification of one additional week" before they would have to leave, "without fundamentally altering its program or incurring an undue administrative or financial burden."

Kehoe said the city received nearly two dozen requests less than a week before the city's scheduled closure of the site. She said she would deliver written notice to those individuals she could locate at the site of the additional week.

Here are the documents filed Monday morning, before the late-afternoon court hearing. NewsChannel 21’s Isabella Warren is visiting the homeless encampment to learn their reaction and the latest events unfolding there. Her report will be on NewsChannel 21 at Five.