Tent City

Probably not many cities are really eager to bring in something like Tent City. But they have to be somewhere, and after a decision today by the Washington Supreme Court in Woodinville v. Northshore United Church of Christ, they have fewer ways to block them. Not none, but fewer.

Tent City 4 is a development of two Seattle homeless advocacy groups, SHARE and WHEEL (we’ll pass on the long run-out of the acronyms). It has put together tent city places for homeless people: “portable, self-managed communities of up to 100 homeless men and women.” It describes them:

SHARE/WHEEL’s Tent Cities are democratically organized. They operate with a strict Code of Conduct which requires sobriety, nonviolence, cooperation and participation. Security workers are on duty 24 hours a day. Litter patrols are done on a daily basis.

Tent Cities provide their own trash removal and port-a-potties. Bus tickets are provided to each participant each day so s/he can get to work or appointments. There is a food preparation area. Volunteers bring hot meals most evenings to both Tent Cities.

Tent Cities are needed because there is not enough indoor shelter for all who need it in King County. Tent Cities provide a safe place to leave your belongings, flexible hours for workers, and the ability for couples to stay together.

Tent City 4 was set up for the east side of King County, and has moved around from place to place, about once every three months. It depends, as the Supreme Court decision said, on property owners willing to donate the space for that time. In 2006 SHARE/WHEEL asked Northshore United Church of Christ if it would donate the space, and the church agreed. At which point the city of Woodinville, from which it needed a temporary use permit, responded that because it had in place a land use moratorium – to put a hold on development – the church was denied the permit. The church protested; the Court of Appeals upheld the city; the church appealed, in part, on freedom of religion grounds.

The Supreme Court agreed with the church. A slice of its reasoning here is wel worth the read:

There is no issue raised here of whether hosting Tent City is important or central to the Church’s exercise (though the Church has never before engaged in such practice around or in its church). The City conceded in its briefing in this case the Church’s sincerity of belief. The City has also not argued in its briefing that the moratorium fulfills a compelling goal and only offered argument that the moratorium did not substantially burden the Church’s free exercise of religion. Thus, the only issue presented is whether the City’s actions substantially burden the free exercise of the Church’s religious “sentiment, belief [or] worship.” . . .

The context for the constitutional evaluation of any burden necessarily encompasses impact on others in the city. Housing the homeless affects those outside the church in a way that private prayer or religious services inside the church buildings do not. Indeed, a homeless encampment likely affects the neighbors who live nearby far more than it impacts most parishioners who spend only hours in church weekly while neighbors must live continuously with the encampment. Cities may mediate these externalities reflecting concerns for safety, noise, and crime but may not outright deny consideration of permitting. By way of analogy, while healing the sick is similarly connected to worship, a church must still comply with reasonable permitting processes if it wants to operate a hospital or clinic. This notion is expressly reflected in article I, section 11 providing, “the liberty of conscience hereby secured shall not be so construed as to . . . justify practices inconsistent with the peace and safety of the state.”

Applying these principles, the City’s total moratorium placed a substantial burden on the Church. It prevented the Church from even applying for a permit. It gave the Church no alternatives. The moratorium lasted a full year, nearly equaling the 14 month moratorium we held improper in Munns, 131 Wn.2d at 195, 207. The City failed to show that the moratorium was a narrow means for achieving a compelling goal. Therefore, the City’s action constituted a violation of article I, section 11 of our constitution.

In a way, it’s a split-the-difference kind of decision. In another way, it isn’t: There is the suggestion that while cities can circumscribe activities like Tent City, they block them outright at their peril.