Judge holds emergency hearing on requested order to halt Hunnell homeless sweep, sets another for Monday

(Update: Hearing held, another set for Monday; statements from mayor, city attorney's office)

Homeless say city failed to provide 'reasonable accommodation' - and that some may die if forced to move

BEND, Ore. (KTVZ) – Deschutes County Circuit Judge Wells Ashby held an emergency hearing late Friday afternoon on a request for an injunction to block the city’s planned clearing of a homeless encampment next week on Hunnell and Clausen roads, then set another hearing for Monday, saying he needs more information.

Ashby listened to concerns from the area’s homeless about the sweep that they claim would violate the Americans with Disabilities Act requirement for “reasonable accommodations,” while the city defended its plan due to what it called growing safety and health issues at the years-old homeless encampment on city right of way.

The city has given residents until midnight Monday to leave, with the clearing scheduled to start early Tuesday morning.

The judge, saying he needed more information, scheduled another one-hour hearing late Monday afternoon, to follow up on whether the city responds to the concerns of homeless advocates and residents.

One of the named plaintiffs, Michelle Hester, said that gives her “more time to get my parts for my RV. And we also need to mayor to keep her word. She promised us we wouldn’t have to go anywhere until they find us a place to go. There’s nowhere to go.”

Bend shelters do have beds available, but homeless residents have said they need a place to park their RVs.

City of Bend Accessibility and Equity Manager Cassandra Kehoe said all current requests for reasonable modifications are being reviewed, and the city’s interactive process includes in-person interviews on Hunnell and Clausen roads. She said the city will provide responses to each individual before the deadline.

Late Friday afternoon, Mayor Melanie Kebler issued this statement:

“While I respect the legal process and the right of constituents to advocate for themselves, I want to make sure the record is correct. Statements made in court today accusing me of making certain promises in writing and of therefore lying to the residents of Hunnell and Clausen Roads are not true.

"There were also statements made that we have no shelter beds available. This is also untrue. We have recently increased shelter capacity in Bend and have had availability as recently as this week for people to enter low-barrier shelter.

"The City has, and will continue, to comply with our policies, and respects the request of the court today to report back next Monday for a final legal determination on that matter," Kebler concluded.

We also received a statement from the City Attorney’s Office regarding the Deschutes County Circuit Court Emergency Hearing on July 14, 2023:

“Today Presiding Judge Ashby held a hearing he characterized as a motion for a temporary restraining order, based on documents filed on Wednesday by individuals residing on Hunnell Road and others. The filing asked that the Court order the City to consider reasonable modification requests submitted to the City, before closing Hunnell Road and nearby areas on July 18, 2023.

"The City told the Court that on Wednesday, the same day the document was filed in court, it received a number of requests for modification due to disabilities of certain people residing on Hunnell, namely, extension of the planned closure date.

"Title II of the Americans with Disabilities Act (ADA) requires cities to provide reasonable modifications of policies, practices and procedures when necessary to avoid discrimination on the basis of disability for qualified individuals, unless it is determined that making the modifications would fundamentally alter the nature of the service, program, or activity, or cause an undue administrative or financial burden.

"The City has recognized its obligations under Title II of the ADA in its code and policies. See Bend Municipal Code 4.20.025.C; City of Bend Administrative Policy 2023-4, Responding to Camping in Public Rights-of-Way and On City-Owned Public Property, Section III, F.2. The filing recognized that the City has these policies, but expressed a ‘fear’ that the City would not follow its own policies and consider the requests.

"The City told the Court it is presently engaged in the interactive process required by the ADA, and is presently considering the reasonable modifications. The City intends to provide responses to the requests on Monday, before Hunnell Road and related areas will be closed. The City confirmed with the court that the area would not be closed on Monday.

"The Court set another hearing for the afternoon of Monday, July 17, 2023, to allow time for the City to provide information on the status of the City’s review of the modification requests under its policies and the ADA. The City intends to continue to apply its policies and consider the reasonable modification requests, in conformance with its policies. The Court did not grant a delay in the planned closure of Hunnell Road, presently planned for July 18, 2023,”

Three homeless residents of Hunnell and Clausen roads in northern Bend, on behalf of others, and homeless advocate Charles Hemingway filed a motion Wednesday against the city of Bend and several officials, seeking an injunction to block next week’s homeless camp sweep.

As with Friday's hearing, Monday's is set for 3:30 p.m. It will be viewable on the court's Webex livestream system, at this page (under the link for Judge Ashby's individual calendar).

The city announced plans last month to remove the homeless residents living on city right-of-way along Hunnell and Clausen roads for the past several years and closed the encampment, citing health and safety issues.

In their 28-page filing, the homeless who filed the motion said they and other disabled and homeless individuals had filed requests for “reasonable accommodation under the Americans with Disabilities Act or to grant other relief under the city’s own regulations,” which they said are still pending before the city.

The homeless residents who filed the complaint say the city’s plans “imminently threaten the physical and mental health and well-being of these Bend residents.”

“Several have terminal illness or other medical conditions that will be exacerbated and may result in hospitalization and/or early death if defendants proceed on July 17, 2023 without according reasonable accommodation” to those who have requested it, the self-filed court filing stated.

The motion noted that the city “has knowingly acknowledged and permitted” the homeless encampments along the two streets “since at least 2016, according to press reports.” One man said he’s resided there for eight years.

And the city has provided portable toilets, trash containers and a water hook-up over the years, they noted, along with a sprinkler system to cool off during heat waves.

The plaintiffs also warned that "with the mass displacement of this large number of people, those displaced are going to be moving into residential neighborhoods, business areas and commercial or industrial areas, potentially flooding these locations," while others are likely to "relocate to county or federal lands," all leading to further city costs.

In response to the filing, Assistant City Attorney Ian Leitheiser provided NewsChannel 21 with this statement:

"We are aware of the legal matter but just received it this afternoon and I can’t comment on the merits. The City also received multiple requests for ADA modifications this afternoon. Cassandra Kehoe, our Accessibility and Equity Manager, is evaluating the requests and may want to chime in too."

City Accessibility and Equity Manager Cassandra Kehoe provided this statement:

"The City received several requests for modifications on behalf of people living in the Hunnell area this afternoon.

"They are asking for more time to move due to disabilities. The City is obligated under the Americans with Disabilities Act and City code and policies to consider reasonable modification requests, but is not necessarily required to grant every request.

"We are evaluating and responding to the requests and will follow our code and policy," she added.

Here’s the full complaint. We will provide any updated city response and track the court proceedings. Court records don’t indicate any hearings have yet been set on the matter, filed early Wednesday afternoon.: