During a civil court hearing Thursday, Judge Samuel Hoar said he needs more time to decide whether residents of Burlington's Sears Lane homeless encampment have legal standing to challenge the city's decision to kick them out.
The court is considering whether Burlington's camp removal policy has “the force of law” similar to a city ordinance or state statute.
“That’s an important determination the court would have to make before the court even went down the path of determining whether or not the city has or has not complied with the policy,” Hoar said.
The encampment policy in question stems from a 2019 settlement with the American Civil Liberties Union of Vermont, which had sued the city for dismantling a different encampment two years prior. The deal requires the city to provide campers with information about social services, and to store their belongings for up to 30 days, among other provisions.
Sears Lane residents Grey Barreda and Alexys Grundy petitioned the court for a preliminary injunction last week after Mayor Miro Weinberger ordered the nearly 30 residents there to clear out. The city posted notices of removal after two men were arrested at the South End site on October 13 — one on suspicion of trafficking methamphetamine, another for allegedly pointing a replica assault rifle at a city firefighter.
The eviction notice referenced the incidents and also "substantial public health issues, including the erection of multi-level unpermitted structures, and continuous or frequent running of generators."
The eviction essentially proceeded as scheduled Tuesday, though the city has allowed campers extra time so long as they’re making plans to relocate. As of Tuesday afternoon, everyone on site had done so, the mayor’s office said. On Thursday, the city began erecting a fence around the site.
“The court has not heard enough yet to be persuaded that it can legally prevent the city from taking or continuing in those efforts” to close the camp, Hoar said Thursday.
Barreda and Grundy testified that the city had sanctioned camping at Sears Lane for years. Just two days before posting the notice to vacate, Grundy said, a city employee discussed the possibility of providing the site with electricity and water. The city had also looked into finding a partner to manage the camp, though none responded to a request for proposals.
Barreda argued that while the city can remove camps for public health or safety emergencies, neither applied to Sears Lane.
“Given the arrest and removal of those threatening public safety and those allegedly committing offenses of a significant nature, and the removal of trash, no emergency exists,” he said. “The remaining campers have a property interest in not being removed because they have not been shown to have not complied with the policy, [and] have determined that their best shelter option is, and only is, at Sears Lane.”
City Attorney Dan Richardson countered that there are still public safety concerns at the site. Affidavits from city officials described some: one of those who was arrested had since returned to the site; police frequently recovered stolen property from the camp; and portable generators are a fire risk.
“My Department came to the opinion that the site is a tinder box,” Fire Chief Steven Locke wrote in an affidavit. “There is an immediate threat to public health from these devices, which only grow with each day.”
Richardson further argued that the city's encampment policy does not have the same force as an ordinance. “This was really adopted as internal guidance for the city,” he said.
Hoar said the court will issue a decision “as soon as it can.”
“There is a threshold question here of standing, and that is: Does this policy effectively create legal rights that these plaintiffs … can enforce in a court of law?” Hoar said. “It's too important a decision to make from the bench, much as I would like to do so today.”
Should Hoar rule in the plaintiffs’ favor, the court would then schedule an evidentiary hearing to determine whether the city followed its own policy.
Outside the courtroom, Barreda and Grundy said the judge’s willingness to consider their case was a good sign.
“We’re gonna keep fighting to have our right to stay on Sears Lane,” Grundy said. Added Barreda, “This is how due process works. We’re being allowed to have our voice.”
Also Thursday, a group of community activists and Sears Lane residents announced that they would be submitting a proposal to manage the Sears Lane camp themselves. They'll also invite other groups to propose a plan, or to collaborate with them on managing the camp, according to Julie Macuga, one of the organizers.
"We're trying to respond to this RFP that was closed after only two weeks, and we hope others will, too," Macuga said. "This is us trying to work with the city to try to do what the city had originally proposed to do in a way that's collaborative with the people who live there, and without having to shut the site down."
Macuga said the group is grateful that the city has taken steps to "improve the situation at Sears Lane," such as extending the move-out deadline and coordinating with a local nonprofit to offer campers hotel rooms or other housing options.
"But none of those are permanent solutions, and none of those have been in deep coordination with the residents here," she added. "So that is what we're doing, is taking that on ourselves."
Macuga said the group will submit its proposal to the city in the next 30 days.