Dear Superintendent Huntington:
I am writing you because
good intentions may have gone astray in the choice of the
location of a homeless shelter at St. Anselm Elementary School this
summer.
The REST group (rotating
emergency shelter team) sponsored by St. Vincent de Paul has decided to allow
smoking on St. Anselm school grounds despite California law which forbids it
both inside a school and in outdoor play areas. The Town of San Anselmo
has an even more restrictive smoking ordinance than
the state, and thus the dangers of second hand smoke to children and adults is
broadly recognized.
Apparently, third-hand
smoke, the residue left by smokers on physical objects both indoors and outdoors, is no less dangerous. The Mayo Clinic states that tobacco residue combined with
pollutants creates a toxic mix containing “cancer-causing substances, and
posing a potential hazard to nonsmokers who are exposed to it, especially
children.” The Mayo Clinic article states that third hand smoke resists
cleaning, and thus the only way to provide a safe environment for children is
to make both indoor and outdoor environments smoke free at all times.
According to a Marin IJ
article, the REST group plans to give the homeless men personal air filters and
ask them to voluntarily use them. These cannot circumvent the law and are not
proven to work. “We also invested in personal smoke filters that we’re going to
ask all of the smokers to use so there won’t be any exhalation of cigarette
smoke.” Research suggests that
seventy-five percent of homeless smoke. Thirty smokers a night would
participate in contaminating the school environment for the projected eight
week duration of the shelter.
I believe the location
of the shelter is also in violation of town zoning regulations, but the Town
Attorney does not agree with me. What is not subject to
interpretation are smoking laws. The Church should not be party to
this illegal activity just so REST can accomplish their goal of housing 40
homeless men this summer.
Everyone at the St. Anselm Parish,
who has an e-mail address, received
a letter outlining these issues (see below), and
not one person has responded to me. I have also handed out many fliers and
posted a Letter to St. Anselm Parents on next-door Ross which reaches over 4000
people. Parents overwhelming do not support the shelter but feel
they have been handed a fait accompli.
I am asking you to
condemn smoking at your school.
Thank you for your
response.
Best regards,
Best regards,
Marsha Hallet
SUMMARY OF ISSUES
The Location Is Not Legal
Town Ordinance 1098 that became Municipal Code section 10-12
after it was passed in January 2015 states very clearly that an “emergency
shelter” is forbidden in an R1 residential neighborhood. St. Anselm Elementary
School is in an R1 residential zone.
The next issue is whether the REST
program is an emergency shelter as that term is defined in the Ordinance and
Municipal Code. An "emergency shelter" is defined in the San Anselmo
Ordinance as any shelter falling within California Health & Safety Code
section 50801(e)'s definition of an emergency shelter. 50801(e) states that an
"emergency shelter" is a shelter that houses homeless for less than 6
months. The shelter planned by REST will house the homeless for less than six
months, the plan is every night from 6pm to 6am for two months. Here's the
language of 50801(e):
"Emergency
shelter" means housing with minimal supportive services for homeless
persons that is limited to occupancy of six months or less by a homeless
person. No individual or household maybe denied emergency shelter because of an
inability to pay.
I have linked San Anselmo Ordinance 1098, Municipal Code
Title 10, Chapter 12, Land Use Table 3A, and California Health and Safety Code
section 50801(e) at the end of this letter.
Smoking Is Not Legal and Leaves
Toxic Residue That Cannot Be Cleaned
We were given a copy of REST's smoking policy and learned
that REST will allow the homeless to smoke at St. Anselm Elementary School.
Change Labs Solutions: California Laws Affecting Smoking 2014 states that
State and Federal laws forbid smoking in any private or public school and near
any playground. Change Labs describes civil and criminal penalties. The
link to Change Labs is at the end of this letter.
In addition, the San Anselmo Municipal Code section 4-15.02
(b)(5)(ii) addresses smoking near children even more restrictively than state
law because it says that smoking must be a reasonable distance from unenclosed
areas primarily used by children, such as playgrounds. It seems that state law
might allow smoking on the sidewalk next to the playground, but the Municipal
Code would not. Municipal Code 4-15.02 (b)(5) (ii) says:
The
area must not include, and must be a reasonable distance from, unenclosed areas
primarily used by children and unenclosed areas with improvements that
facilitate physical activity including, for example, playgrounds, tennis
courts, swimming pools, and school campuses.
In regards to second hand smoke in general, the town allows
a civil action. Municipal Code section 4-15.09 (b) states:
For
all purposes within the jurisdiction of the Town, non-consensual exposure to
smoke occurring on or drifting into residential property is a nuisance, and the
uninvited presence of smoke on residential property is a nuisance and a
trespass. Any person bringing a civil action to enforce the nuisance provision
contained in this section need not prove an injury different in kind or in
degree from injury to others to prove a violation of this chapter.
I have linked to the San Anselmo Municipal Code at the end
of the letter.
The Mayo Clinic website describes that third-hand smoke is
extremely toxic, especially to children, because it attaches to physical
surroundings near the smoker and resists cleaning or removal. In this regard,
the Mayo Clinic site states that:
This
toxic mix of third hand smoke contains cancer-causing substances, posing
a potential health hazard to nonsmokers who are exposed to it, especially
children.
Studies
show that third hand smoke clings to hair, skin, clothes, furniture, drapes,
walls, bedding, carpets, dust, vehicles and other surfaces, even long after
smoking has stopped. Infants, children and nonsmoking adults may be at risk of
tobacco-related health problems when they inhale, ingest or touch substances
containing third hand smoke. Third hand smoke is a relatively new concept, and
researchers are still studying its possible dangers.
Third
hand smoke residue builds up on surfaces over time and resists normal cleaning.
Third hand smoke can't be eliminated by airing out rooms, opening windows,
using fans or air conditioners, or confining smoking to only certain areas of a
home. In contrast, secondhand smoke is the smoke and other airborne products
that come from being close to burning tobacco products, such as cigarettes.
The
only way to protect nonsmokers from third hand smoke is to create a smoke-free
environment, whether that's your private home or vehicle, or in public places,
such as hotels and restaurants.
The Mayo Clinic link is at the end of the letter.
Too Many Men
and No Security
The town Ordinance restricts emergency homeless shelters in
San Anselmo to limited commercial, general commercial and public facilities
areas and to 17 homeless individuals, not to the 40 men planned by REST.
The Ordinance requires on-site security and on-site management, and REST does
not plan to have any security.
Opinion of Town Attorney
The Town Attorney wrote a letter
stating that "the Town does not have authority to restrict this program,
because it is a temporary shelter that is a permitted accessory use under the
Town's Municipal Code." His logic is summarized below, and we disagree
with it:
The Town Attorney wrote that "[b]ecause it will be a temporary use, the regulations for a
permanent Emergency Shelter are not triggered." He described the shelter
as a "pilot program for several weeks during the summer." We disagree
with his analysis because the Municipal Code defines "Emergency Shelter"
in 10-12.02 to mean housing as defined in California Health and Safety Code
50801(e), any shelter housing homeless for less than six months.
Although the Town Attorney
acknowledged that "Ms. Hallet's letter ...points to the definition of
Emergency Shelter that the Town has adopted in Chapter 10-12 of the Municipal
Code, which references the definition in state law under Health & Safety
Code section 50801(e)," the Town Attorney's letter did not actually quote
or analyze the definition at all. The Town Attorney simply described the
general purposes of the California Department of Housing homeless legislation.
He wrote that the goal of the Housing Code is to encourage individuals to
accept service and move toward permanent housing and that the intent of the legislature
is to increase the availability of year- round housing.
The Town Attorney did
not address the definition of "emergency shelter" and why he believed
that REST's planned eight week shelter for the homeless does not fall within
the definition of "emergency shelter" which is defined as any shelter
housing the homeless for less than six months.
San Anselmo's use of the state's
definition of "emergency shelter" in its own ordinance and the other
items in the legislation, including forbidding emergency shelters in R1
neighborhoods was anticipated by the state. There is a State of California
Memorandum that addresses what the Town can do to comply with the homeless
housing regulations set by the state. It specifically gives municipalities the
right to have the rules that that San Anselmo Town Council passed in Ordinance
1098 (Municipal Code 10-12.) this January 2015. The State of California
Memorandum is linked below.
The Town Attorney also wrote
that:
The
summer REST program is an accessory use under the Town's Land Use Regulation
Table. (San Anselmo Municipal Code, Table 3A). Such uses are permitted as of
right in residential zones. Because St. Anselm School is in a residential zone (R1)
in which this accessory use is permitted, there is no requirement that REST
apply for a use permit or any other Town permit to operate its temporary
shelter. The Town has no means by which to impose conditions on this temporary
accessory use.
Contrary to what the Town Attorney wrote above, when the
Town passed Ordinance 1098 in January 2015, the Ordinance modified the section
of Land Use Table 3(A) that has to do with "emergency shelter." It is
consistent with the Ordinance and Municipal Code and does not allow emergency
shelters in residential areas. I have linked to the Town's Land Use Table 3(A)
below.
The Town Attorney wrote that "[b]ecause it will be a
temporary use, the regulations for a permanent Emergency Shelter are not
triggered."
As you can see from what I have written above, there is
nothing in the state law's definition of emergency shelter or in the Town
Ordinance about the intent of the shelter organizers regarding duration. The
definition applies to shelters where homeless are able to stay for less than
six months, and based on that definition, the REST shelter falls within the
definition of emergency shelter both under the state law and San Anselmo
Municipal Code and Land Use Table 3A. I did a word search of the state housing
code to try to find any mention of pilot or temporary programs and whether they
would be treated differently, and I could not find anything remotely relevant.
I did not find the word temporary used. The only time I found the state using
the word "permanent" was as an adjective to describe housing.
The Town Attorney did not address smoking or the other
issues we raised, such as a maximum of 17 homeless and on-site security.
Our group that believes that the needs of the homeless
should be met, but not at the expense of the health of children, in violation
of local or state law, and in violation of REST’s own policy that states that
they would not put a homeless shelter in a residential neighborhood.
Links
1. Ordinance 1098
– adopts Title 10, Chapter 12 (Emergency Shelters) and can be found by going to
the Town of San Anselmo website, linking to “government,” linking to “Town
Municipal Code,” and entering Ordinance 1098 in the search bar.
2. San Anselmo
Municipal Code, Chapter 12 - The Municipal Code can be found by going to
the Town of San Anselmo website, linking to “government,” then linking to “Town
Municipal Code,” then entering Chapter 12 Emergency Shelters in the search bar.
3. San Anselmo Land
Use Table 3A - The link to the Land Use Table 3A can be found by linking to
“government”, then linking to “Town Municipal Code” then entering Table 3A in
the search bar.
4. Link to Smoking
Laws in California and Mayo Clinic Article on Third Hand Smoke - http://changelabsolutions.org/
5. REST Smoking
Policy: I received an email from REST describing the smoking policy.
Men arrive at 6 p.m. The policy states that there will be no smoking from 10
p.m. to 6 a.m. This indicates that "smoking breaks" will be between 6
p.m. to 10 p.m. The policy is quoted below:
There will be no smoking on the St. Anselm facility.
There will be supervised smoking breaks. We are also investigating the
purchase of personal air-filters and hosting a class for those who want to stop
smoking. There will be no smoking from 10pm until the men leave in the
morning, approximately 6am.
6. REST policy
statement about not having emergency shelters in residential areas - http://wearesanrafael.com/
7. Letter from the
Town Attorney Rob Epstein attached.
8. Senate Bill
2 Local Planning and Approval for Emergency Shelters and Transitional and
Supportive Housing with Memo: http://www.hcd.ca.gov/
No comments :
Post a Comment