MIDDLEBURY — The town of Middlebury is considering an encampment policy that would give community officials more guidance on potentially regulating temporary settlements of houseless individuals within the shire town.

“We don’t know where the research will bring us,” Middlebury Police Chief Jason Covey said. “We want to see if there’s something here that will work for Middlebury. Maybe we’ll decide during this process that we can’t come up (with a policy) that works for us. But we won’t know until we try.”

With that in mind, the selectboard has asked the Middlebury Policy Review Committee to get feedback and do research on a policy. Middlebury’s growing houseless community has been gathering in locations that include under the Cross Street Bridge off Bakery Lane, behind the Ilsley Library, along the “happy trail” bordering the Otter Creek below the falls, the Abbey Pond Trail and — until recently — in wooded areas near the Memorial Sports Center and Mary Hogan Elementary School.

Since this past spring, Middlebury police have been called to the Bakery Lane area multiple times per week to defuse arguments, break up occasional fights and/or issue warnings against public drinking to members of the houseless community. Middlebury Regional EMS has also been called upon to care for houseless individuals injured in fights, dealing with mental health crises and/or needing attention for substance use disorder.

Due to legal interpretations of the “cruel and unusual” clause U.S. Constitution’s Eighth Amendment, Middlebury police — and indeed law enforcement throughout the country — have largely taken a low-intervention approach to encampments on public property, while responding to criminal activity in cases when it occurs.

The Vermont ACLU reinforced that approach in a June 21, 2023, letter it sent to municipal officials statewide.

“Local leaders should be aware that ordinances and policies that punish individuals for sleeping in public when they have nowhere else to go violate the Constitution’s prohibition on cruel and unusual punishment. For this reason, while municipalities can prohibit sheltering at certain locations, they cannot ban people from sheltering on all public land.”

But the U.S. Supreme Court this past June 28 released its (6-3) majority opinion in the Grants Pass (Oregon) v. Johnson case, a decision that gives municipalities greater leeway in regulating encampments.

The highest court was asked whether the city of Grants Pass’s ordinance regulating public property by prohibiting activities such as camping or parking overnight on city property or parks violated the U.S. Constitution’s Eighth Amendment, particularly as it related to people experiencing homelessness.

The court held that it does not, according to an interpretation issued by the League of Oregon Cities.

“The court concluded that the cruel and unusual clause in the U.S. Constitution’s Eighth Amendment does not extend to the enforcement of generally applicable laws, such as public camping ordinances regulating public property,” reads the interpretation. “Further, the court concluded that Grants Pass’s public camping ordinance does not criminalize the status of being homeless but rather, it prohibits specific actions, such as camping, undertaken by any persons.”

It’s a decision that’s emboldened communities to become more involved in the regulation of local encampments, and Middlebury could soon follow suit, using the city of Montpelier as a guide.

MONTPELIER MODEL

Outgoing Middlebury Town Manager Kathleen Ramsay has studied the Montpelier encampment policy, and attended a recent National League of Cities risk management conference where she learned what other communities were doing about encampments.

“With the growing number of people behind the Middlebury town offices and a growing concern about how we might be able to address that, I thought it was a good idea to put (the policy suggestion) forward now,” she said.

At this early stage, she believes the town policy would be more about where encampments shouldn’t be allowed, rather than where they could be sited.

“If you start specifying where people can be, there’s an implied protection with that. I don’t think the town wants to get into the business of policing homeless encampments,” she said.

Montpelier’s Encampment Response Policy among other things:

• Establishes criteria “for determining ‘high-sensitivity areas,’ where encampments are presumed to cause unreasonably high levels of health and safety impacts due to the nature of the location.”

• “Emphasizes the continued illegality of emergency sleeping encampments, except during times when shelter space is full.”

• Describes protocols for dismantling encampments that violate policy standards.

The city has defined “high-sensitivity areas” as locations where “the health and safety impacts of encampments have a heightened potential to degrade public safety, public health, environmental protection, or critical infrastructure or have the potential to create significant obstruction to residences, businesses, emergency routes, and rights-of-ways.”

These areas include public facilities where the presence of encampments could disrupt environmentally sensitive areas, city operations, school operations, and/or present a health or safety concern to city staff, school staff or Montpelier residents using the facilities, according to the policy. They may also be areas that present significant safety concerns for those who are sleeping.

Montpelier last month put its policy into practice when it closed an encampment off Country Club Road where around a dozen people had been living. The city had declared it a high sensitivity area. Those residing at the camp, as well as some of their supporters, protested the city’s decision.

SUPPORTING A POLICY

It’s unclear how much of Montpelier’s encampment policy will make it into Middlebury’s, or if Middlebury will ultimately adopt a policy. But support for such a document is growing. Among those in favor is Heidi Lacey, executive director of the Charter House Coalition’s Emergency Shelter.

“As a service provider who works the front lines and aims to support our town’s resources and quality of living, I feel that a well-thought-out policy will help to better navigate the various challenges our first responders, business owners, community members and service providers experience,” Lacey told the Independent. “I believe if done right, our unhoused neighbors will better understand the importance and benefits of being a welcomed citizen. Being clear is being kind.”

She stressed transparency will be key to a successful encampment policy.

“I see this step (researching the implementation of an encampment policy), as a win for all stakeholders — provided we do not, in any way, criminalize being unhoused,” Lacey said. “Asking all community members, housed or unhoused, to make respectful and responsible decisions while using public property, should be easier to enforce. With the appropriate guidelines and connections between social service providers, law enforcement and our justice system, I believe this will better serve the greater community and may (eventually), help to steer people in need of services, to more stability.”

Covey is also in favor of the town adopting an encampment policy.

“(Homelessness) is an issue that’s not going to go away,” he said. “If you don’t have a policy, it makes it difficult to take a stand if there’s activity in a place that the town really doesn’t want. It’s helpful to establish some parameters.”

Middlebury officials said they receive occasional complaints about the mere presence of the Bakery Lane encampment. They explain that the camping itself isn’t illegal.

“Without the town taking a stance, the police simply try to mitigate the effects of the behavior and deal with the criminal behavior that we see. But we don’t have ability, for example, to say an encampment can’t exist in a specific place, because the town itself hasn’t taken a position in it,” Covey said.

A policy, the chief noted, “would clearly delineate what the town is saying is acceptable, versus what is not acceptable and what the town’s authority would be to take action.”

He pointed to a hypothetical scenario in which a policy could call for dismantling a camp if it was declared a public health threat, owing to persistent, proven cases of drug use on the premises.

Covey agreed with Lacey that the policy shouldn’t criminalize homelessness or come up with a “ready-made solution” to end encampments.

“It’s recognition that this is an issue that’s not going away,” he said. “Now that we’ve had some experience and Supreme Court guidance, can we come up with a logical, reasonable policy for the town of Middlebury that will help us manage (homelessness), with the emphasis still being on human services, outreach and helping folks find a safer path?”

Absent a policy, Middlebury officials will continue to use their best judgment when it comes to encampments. Local police last week received reports about houseless folks camping in woods south of the Memorial Sports Center, and in a wooded area between Mary Hogan Drive and the back of the Champlain Farms store. Both spots are near the elementary school.

“That’s of concern to us and the school district. We’re trying to impress on those folks that that’s not a place where they should be,” Covey said.

On Wednesday, Sept. 4, Mary Hogan Elementary School Principal Jen Kravitz and Addison Central School District Superintendent Wendy Baker sent an email to school parents informing that the encampment off Mary Hogan Drive had been discovered and was in the process of being cleared.

The Policy Review Committee is slated to have its first discussion about an encampment policy on Sept. 26.

“We’re hopeful that by the end of the year we could have (a policy) in place, so it would be in play for next year,” Ramsay said.

Reporter John Flowers is at [email protected].