Phoenix business owners and residents who have faced “floors soaked with urine and human feces,” “frequent public nudity” and “tinfoil with burnt residue from fentanyl pills strewn all over the sidewalks” have won a second legal victory in a years-long battle over a sprawling homeless encampment dubbed “the Zone.”
The Arizona State Court of Appeals on Tuesday upheld a lower court order from September that required the city of Phoenix to clear the encampment and enforce its own public nuisance laws.
“For more than 85 years, Arizona courts have recognized the authority to hold municipalities liable under state law for public nuisances on lands they own or control,” the appeals court’s decision states.
The decision comes as homelessness has become a major problem in Arizona. State data shows that the number of homeless people increased by 29 percent between January 2020 and January 2023. “Homelessness-related service providers are a growing industry,” according to the Common Sense Institute. It estimates that public agencies and nonprofits spend an estimated $1 billion annually directly on homelessness – or nearly $50,000 per homeless person per year.
In November, Arizona voters will vote on a ballot bill that aims to provide property tax refunds to property owners affected by the government’s lack of enforcement of laws “prohibiting illegal camping, loitering, blocking public roads, begging, urinating or defecating in public, public consumption of alcoholic beverages, and possession or consumption of illegal substances.”
The ruling in Arizona also comes just two months after the Supreme Court’s landmark decision in Grants Pass v. Johnson, in which the majority held that a city enforcing its public camping ordinances cannot be considered “cruel and unusual” punishment – although the state ruling did not apply to the Grants Pass Verdict.
In the Phoenix case, Maricopa County Superior Court Judge Scott Blaney ruled in September in favor of property owners suing the city, finding that city officials “have both caused and perpetuated the dire situation currently existing in the zone by failing and, in some cases, refusing to enforce law enforcement and quality of life laws in the zone.”
That ruling found that the zone had become a “biohazard” because “human waste, food scraps and garbage” were being dumped on the streets, “homeless people defecate and urinate in the open,” and property owners “are forced to clean up the human waste every day.” In addition to fire hazards, prostitution, public nudity and public “sex acts” in the zone, the court noted that there were “used needles” and that “pieces of aluminum foil contaminated with fentanyl were flying around in the wind and coming into contact with residents, business owners, their employees and even their children.”
Although the city ultimately followed the judge’s order to clean up the zone, it appealed the ruling, arguing, among other things, that the injunction violated “the autonomy of local government to address homelessness.” The appeals court found this week that “the city has failed to show how requiring a municipality to remove a public nuisance on property it owns and controls and prohibiting it from maintaining a public nuisance on that property impermissibly interferes with that municipality’s autonomy or will.”
In response to the loss of their appeal, a city official told the Sun that there is a rest stop near the former zone that provides assistance to the homeless, but at the same time advises them that camping is “no longer permitted.”
“The City of Phoenix has prioritized the creation of more indoor shelters than ever before in recent years,” the representative says, noting that in addition to the 1,074 beds in the previous two years, an additional 200 beds will be added as early as 2024.
Goldwater Institute Vice President for Legal Affairs Timothy Sandefur, who filed briefs in support of property owners affected by the zone, welcomed the appeals court’s ruling.
He said it was a “reminder that government is not above the law” and that “it has an obligation to enforce the law impartially to protect hard-working taxpayers whose rights are at risk when city officials choose to simply ignore their responsibility to enforce the law.”
