Apr 18, 2016

"If the city votes for the project, then a lawsuit will be filed."

Just got of the phone with local attorney Mr. Andrew Stunich. He told me that no lawsuit had been filed yet. "If the city votes for the project, then a lawsuit will be filed."

Mr. Stunich said that his clients had "varying reasons" for remaining unnamed, at this time. They are aware that at some point there names will become public, he said.

Text of Mr. Stunich's letter:

Dear City of Eureka:

I am writing to you on behalf of a coalition of business and property owners with business interests in close proximity to 3rd and Commercial Streets in Eureka, California and to request records pursuant to California’s Public Records Act.

My purpose in writing to you is to give as much advance notice as possible that my clients intend to seek an injunction to prohibit the proposed homeless camp at 3rd and Commercial Streets and to file a lawsuit for damages related to the pending homeless camp. I am giving the City advance notice so that the City can make an informed decision as to whether to proceed with intentionally creating a homeless camp in the middle of Eureka. There are procedural and substantive liability issues involved with such a project. I will address the procedural issues first.

It appears to me that there have been egregious violations of California’s Brown Act. Shipping containers have already been moved onto the 3rd and Commercial Street site and starting on Sunday, April 17, 2016, work commenced on converting the shipping containers into substandard housing.

Since the first opportunity for the public to weigh-in on the matter and the date set for the City Council vote on the project is the pending City Council Meeting set for April 19, 2016, it appears to me that flagrant violations of the Brown Act have occurred. One or more Eureka City Council Members were viewed at the 3rd and Commercial Street site Sunday indicating that an unlawful, behind closed doors decision has already been made.

Mandatory notices regarding the planned homeless camp were never sent to business and property owners in the area. I am just beginning my investigation as to how this project seems to have. been fast tracked despite obvious strong opposition and serious liability issues. Before my work is complete, I assure you that any and all procedural flaws will be ferreted out and appropriate legal action will be taken. The procedural errors, however, are just the beginning of my and the coalition of business and property owners’ concerns.

The City has, perhaps, been emboldened to participate in the homeless camp project by Government Code, 8698-8698.2 known as the Shelter Crisis Act.

However, that Act gives limited liability protection to political subdivisions only and will not shield the Mercer-Fraser Company, the Betty Kwan Chinn Homeless Foundation, the Humboldt Coalition For Property Rights or those organization’s directors, officers or employees that are directly involved from liability.

I also question whether there is even an “emergency” within the meaning of the Shelter Crisis Act to bring the Act into play. Your Shelter Crisis Report, dated January 5, 2016, on page 4, states that the EPD has tracked the number of beds at shelters and related facilities and has determined that ‘Eureka has had an adequate number of beds available for those who choose to avail themselves of shelter.” So where is the emergency?

The foregoing EPD findings are consistent with my investigation. I walked the length of the homeless camp on April 17, 2016 and noted that ALL of the people I spoke with had no desire to go to 3rd and Commercial Streets nor did many of them seem to want to leave the area at all. If it could be said there is an “emergency,” the only emergency would appear to be a self created one by the City.

As I see the situation, on May 2, 2016, the City plans to forcibly remove the homeless from the area near the Bayshore Mall and Humboldt Bay and probably cause some of the poorest and most downtrodden people in our society to lose what little belongings they have in the process with no viable alternative location to live for most of the people that will be dislocated. While there are probably at least two hundred people that will be dislocated, there is only room for approximately forty of those displaced persons at 3rd and Commercial Streets and then only for six months. Apparently, the other 140 or so displaced persons will be left to scramble to find somewhere to live throughout the City after they have been stripped of what little possessions they had to cope with the elements.

What appears to be the situation to me is that there is adequate shelter for those homeless persons that are wiling to clean up, but not for those who remain drug and alcohol abusers. It follows that the 3rd and Commercial Street Shelter is going to be used to house some of those homeless people that will remain drug and alcohol abusers and/or convicted sex offenders that cannot find housing elsewhere. In short, the City intends to create a known drug property within the ambit of Health & Safety Code 11570 et seq. California Health & Safety Code, 11570 defines, as a matter of law, that “[e]very building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away any controlled substance, precursor, or analog specified in this division, and every building or place wherein or upon which those acts take place, is a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered, whether it is a public or private nuisance.”

The City can apply to the 3rd and Commercial Street project any lofty euphemism it wants, but the reality will remain that the City and its partners in the project will intentionally be creating a nuisance. California law does not allow for the creation of such drug dens just because the drug and alcohol abusers are homeless. Neither homelessness nor charity work confers a license to violate other people’s right to quiet use and enjoyment of their property.

It would not be wise for the City to flagrantly violate Health & Safety Code 11570 et seq. The Shelter Crisis Act only protects, if at all, the City from “ordinary negligence.” The Shelter Crisis Act does not limit the City’s liability for grossly negligent, reckless, or intentional conduct which causes injury. Here, the City is knowingly and intentionally bringing a known nuisance, a nuisance specifically defined by law as a nuisance, to a business district and such conduct rises far above ordinary negligence. In a case like this, the differentiation between “ordinary negligence” and ” gross negligence,” which is fairly slight already, hardly has any significance when the City is intentionally creating a known nuisance as a matter of law. Note that California nuisance law applies to conduct undertaken negligently, recklessly and intentionally. That the City is intentionally creating a known nuisance under the facts of this controversy is beyond credible dispute.

Eureka Police Chief Andrew Mills has admitted that the “Palco Marsh area has been the site of crime and disorder beyond illegal camping.” He further notes that “[r]eports to City staff, the police, and Council members of violence, theft, human and drug trafficking have been frequent and persistent. ” He has opined that there “is a compelling government interest to protect the City from this behavior.

To transfer the foregoing problems to a business district in the middle of the City where it will disproportionately impact the nearby business and property owners is not ordinary negligence. It is an intentional causing of harm for which the City will be held accountable. Your own public notices state that the proposed homeless camp will be used on a first-come, first-served basis each day to provide temporary shelter to single adult females and males, the mentally ill, and 290 sex offenders.” Your reports also make it clear that the homeless will not be required to quit using drugs or enter any rehabilitation programs as a prerequisite to admittance at the shelter. Could it be any more clear that the City is intentionally creating a drug property in the heart of the City?

Those seeking services at the homeless camp and their friends will travel daily to and from the site throughout the neighborhood causing a host of nuisances and crimes. It is common knowledge that the vast majority of these homeless persons have drug, alcohol and severe mental health problems. One of the homeless persons I spoke with yesterday freely admitted that 98 percent of the homeless people at the Palco Marsh area have drug and alcohol problems.

The 3rd and Commercial Streets homeless camp will also create a dangerous condition of the property in violation of Government Code, 830 et seq. Government Code, 830(c) defines public property to include “real or personal property owned or controlled by the public entity . Here, the City, as I understand it, intends to Lease 3 rd and Commercial Streets from the Mercer-Fraser Company and turn it over to third parties to run the homeless shelter. Under such circumstances, the City will remain liable under Government Code, 830.

Government Code, 815.2, the general statute imposing liability on a public entity for torts of its employees, also applies such that the City will be liable for its employees’ torts. Government Code, 820 establishes that “a public employee is liable for injury caused by his act or omission to the same extent as a private person. ” (See also Government Code, 820.8) The City will have to defend and indemnify its employees for their negligence and the City will not be entitled to indemnification from the employees. (Government Code, 825 & 825.4) This project is also a joint project between the City and other organizations. It is a clear partnership or joint enterprise pursuit in which each of the parties will be liable for the torts of the other entities and their employees.

Government Code, 830 describes a “Dangerous condition” as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”

That the proposed homeless camp will create a dangerous condition of public property is too plain for argument, but it will, as already mentioned, also create a public and private nuisance. Generally, whether the lawful use of property will be deemed to constitute an actionable nuisance depends on the locality and surroundings, the number of people living around the alleged nuisance, the prior use of the property, the continual vs. occasional character of the activity, and the nature and extent of the alleged nuisance and injuries resulting therefrom. (See Hellman v. La Cumbre Golf Country Club (1992) 6 Cal.App.4th 1224, 1230-1231 — “The law relating to private nuisance is one of degree.”)

Here, all of the foregoing factors are adverse to the City and it should be clear that the City is knowingly going to operate by and through its project partners, the 3rd and Commercial Street property with an express, known purpose that will patently constitute a public and private nuisance pursuant to Civil Code, 3479 and 3480.

In addition, the homeless camp will draw crime to the area for which the City will be responsible. Each and every time one of my clients or their employees is a victim of crime, an additional lawsuit will be filed. A possessor or owner of land who fails to take reasonable actions to prevent criminal activity on the property is subject to nuisance liability if that criminal activity harms  the surrounding community. (See Lew v. Superior Court (1993) 20 Cal.App.4th 866, 870-875 plaintiffs were liable for nuisance under Health and Safety Code, 11580 because their apartment building was operated as a center for the sale and distribution of drugs and plaintiffs “did not take all reasonable measures available to them to control their property. “)

Here, no matter how well you run the homeless camp, it cannot change the fact that the City will intentionally cause known sex offenders and other people with drug, alcohol and severe mental health problems to congregate to the area with all of the known, associated problems so well articulated by the Chief of Police.

Knowingly allowing the creation of a homeless camp on the property in the heart of Eureka one block from U .S. 101 and near Old Town Eureka — where other businesses will be deeply affected is not a wise decision. While I and my clients agree that something must be done to help the homeless, the choice to use 3rd and Commercial as a “solution” to the problem is cruel to those who live and work near the area. The installation of a homeless camp will damage businesses in the area.

Some businesses may close or have to lay off workers. I have already spoken with some business people in the area that are renting their business premises and they are already contemplating not renewing their Leases. Some businesses will have the expense of relocating and some landowners may suffer loss of rental income or at least a decline in rental income and the loss of some property value which could place some property owners under water on their mortgages.

While housing is needed, drawing more homeless people into the heart of Eureka is beyond the pale to those who will be directly and adversely affected. Many other citizens of Eureka will also be indirectly affected. Eureka already has a bad reputation on traveler/visitor comment sites. Many negative comments refer directly to Eureka’s large transient and homeless population. To intentionally make the problem worse seems inexplicable to me.

When help is rendered to the homeless, as I and my clients believe it should, it is best not to impose the burden on a relatively small group of citizens and under no circumstances is it proper to bring a known nuisance to any part of the City.

These types of homeless services need to be provided on the edge of town to draw the homeless away from the business areas and to create a better location where they need to spend their time to receive their free services so that the City is not further damaged. In other words, provide the homeless help where they cause the least harm to the City.

Also, please do not take false comfort in the fact that the City apparently intends to sublet the property to its partners in this project for them to run. That will not insulate the City from liability given the joint nature of the project. Subletting the property to others also will not insulate the City even if this was not a joint project. The City will have liability as a landlord. Generally, one has no duty to control the conduct of a third person and no duty to warn or otherwise protect those who may be endangered by such conduct. However, a duty may arise where there is a “special relationship” between the defendant and the third person that obligates the defendant to control the third person’s conduct. (Peterson v. San Francisco Comm. College Dist. (1984) 36 Cal.3d 799, 806.)

Please understand that if the proposed homeless camp at W. 3rd & Commercial goes forward, a lawsuit will be filed against the City and all officers and employees - at least the ones that are not protected by governmental immunity statutes - that have played a role in helping to create the nuisances and crimes that are certain to follow.

While I am not eager to file a lawsuit against the City of Eureka for which I have a great deal of respect, I agree with my clients’ position that they should not have to tolerate their own City intentionally bringing such an obvious public and private nuisance to their business district no matter how well intentioned the City may be.

Pursuant to California’s Public Records Act, please provide me with copies of all City of Eureka documents and electronic communications wherein Council Members have considered, debated, referenced or written about the 3rd and Commercial Street Shelter Project.

In addition, please provide me with all documents that constitute the notice, if any, that was given to both the general public and to nearby business and property owners regarding the 3rd and Commercial Streets Shelter Project. Please provide all internal documents, other than those covered by the attorney-client privilege, wherein any employee or consultant references, analyses or mentions the 3rd and Commercial Street Shelter Project.

Please feel free to call or write should you wish to discuss this matter further.



Cordially,

Andrew Stunich

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