Chapter 5.12 — HOMELESS SHELTERS

The City Council finds and declares as follows:

A.

On a per capita basis, San José has one of the largest unsheltered populations of any major city in the United States. The 2023 Point in Time Homeless Census identified a total of 6,266 unstably housed individuals residing in San José on any given night. Out of the total, 4,386 persons were unsheltered (e.g., residing on the street, in vehicles, in abandoned buildings, or in encampment areas). Of these 4,366 persons, it is estimated that 20% are sheltering in vehicles.

B.

The primary obstacle to reducing or ending homelessness in San José remains the shortage of permanent affordable housing. In addition to a shortage of permanent affordable housing opportunities in San José, there is insufficient temporary homeless shelter capacity. According to a 2021 report by the Santa Clara County's Office of Supportive Housing, Santa Clara County emergency shelters located in the City of San José and elsewhere in the county have the capacity to provide 1,113 shelter beds on any given night. It is anticipated that the 2023 Continuum of Care Housing Inventory Count will show the City's progress on providing shelter beds when it is published including 2,376 emergency shelter beds in Santa Clara County, of which 1,916 are located in San José.

C.

Over the last several years, the City of San José and its partners have pursued many innovative programs to address the need for homeless housing including: creating a pipeline of permanent supportive housing and rapid re-housing units; and repurposing hotels and motels for the purpose of emergency interim housing, eviction prevention programs constructing longer term emergency interim housing; safe parking programs and providing winter warming centers to offer life-saving temporary shelter in City community facilities. Despite these actions, thousands of people are still living on the street or without adequate shelter on any given night, and more immediate emergency housing options are needed to ensure the continued

health and well-being of the most vulnerable members of our community. In addition to the previously known risks of being unsheltered, the unsheltered members of our community are the most vulnerable to harms arising from new threats including pandemics and the climate emergency.

D.

In light of these many unsheltered residents whose health and well-being are at risk and due to the need for immediate emergency housing solutions including homeless shelters, the City has declared a shelter crisis, and has determined that Homeless Shelters (as defined in Part 2 of this Chapter) are needed as a part of the City's efforts to provide additional shelter during the shelter crisis.

E.

There are existing state housing, health, habitability, planning and zoning, or safety standards, procedures and laws the strict enforcement of would prevent, hinder, or delay the mitigation of the effects of the shelter crisis. These laws include the laws and policies expressly suspended or authorized for suspension under subsection (a) of Government Code Section 8698.4, including but not limited to the Planning and Zoning Law, Landlord-Tenant law (Civil Code Sections 1941 to 1942.5, inclusive, of the Civil Code), the Subdivision Map Act, the Surplus Land Act, the Special Occupancy Parks Act (Part 2.3 (commencing with Section 18860) of Division 13 of the Health and Safety Code), the Mobile home Parks Act (Part 2.1 (commencing with Section 18200) of Division 13 of the Health and Safety Code), the Mobile home Residency Law (Chapter 2.5 (commencing with Section 798) of Title 2 of Part 2 of Division 2 of the Civil Code), or the Recreational Vehicle Park Occupancy Law (Chapter 2.6 (commencing with Section 799.20) of Title 2 of Part 2 of Division 2 of the Civil Code). Pursuant to the authority in in the Shelter Crisis Act, upon a declaration of a shelter crisis in the City, during such shelter crisis in lieu of compliance with the foregoing, Homeless Shelters (as defined in Part 2 of this Chapter) shall be subject to the reasonable standards in this Ordinance and such procedures, plans and guidelines as may be approved by the City.

F.

There are existing local standards and laws including adopted City Council Policies, City approved land use plans and policies, the general plan, local building approval procedures, Council Policies, and Council Resolutions, as well as Chapter 4.12, Title 6, Title 8, Title 11, Titles 13-15, Titles 17-20, Title 24 and Title 27 of the San José Municipal Code that would prevent, hinder, or delay the mitigation of the effects of the shelter crisis if a requirement for strict compliance was imposed on Homeless Shelters. To the extent these local standards and laws impose requirements on Homeless Shelters, during a shelter crisis, in lieu of compliance with the aforementioned local standards and laws, Homeless Shelters shall be subject to the reasonable standards in this Ordinance and such guidelines as may be approved by the City Manager or designee, provided however, that until in lieu standards for Chapter 4.12 and Title 27 are approved in the City Manager's guidelines, Homeless Shelters must comply with Chapter 4.12 and Title 27 of the San José Municipal Code.

G.

Upon a declaration of a shelter crisis in the City, Homeless Shelters shall be authorized as emergency housing and the City may authorize persons unable to obtain housing to occupy Homeless Shelters during

the duration of such state of emergency consistent with the Shelter Crisis Act, such persons shall not be considered tenants.

H.

The Emergency Housing Appendices to the California Building Code and California Residential Code, which contain standards applicable to structures occupied under a shelter crisis declaration shall apply as specified herein, however in order to most expeditiously improve the circumstances of the greatest number of homeless persons, the City shall have the authority hereunder to vary the application of those standards in the manner described in Section 5.12.112.

(Ord. 30969.)

A.

This Chapter sets forth the City's standards and procedures for the design, site development and operation of Homeless Shelters and the structures and facilities therein, consistent with Government Code Section 8698.4, on land owned or leased by the City of San José or by an agency or entity created pursuant to the Joint Exercise of Powers Act (Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code) which has the City as a member during any Shelter Crisis.

B.

Notwithstanding any provisions of the San José Municipal Code, any Council Resolution, Council Policy and/or local land use plans, including the general plan, to the contrary, the requirements of this Chapter shall apply to Homeless Shelters during a Shelter Crisis declared by City of San José, as provided for in Government Code Section 8698 et seq. Homeless Shelters need not comply with any conflicting or more restrictive requirements of the San José Municipal Code, Council Resolutions, City land use plan, City general plan, any Council Policy, any City administrative guidelines, any City standards or any City practices except as expressly provided in this Chapter.

C.

This Ordinance is intended to apply to and authorize Mobile Shelter Communities (as defined in Part 2), campgrounds with Tents (as defined in Part 2), Homeless Shelters that include safe parking and Tents, and, except where expressly excluded, all other types of Homeless Shelters authorized under Government Code Section 8698.4. Homeless Shelters may only be occupied during a shelter crisis declared by the City of San José.

D.

During the operative period of San José Municipal Code Chapter 5.09, this Chapter shall not apply to Emergency Bridge Housing, as defined under San José Municipal Code Chapter 5.09 prior to January 1, 2025 absent the adoption of a resolution declaring such Emergency Bridge Housing should instead be subject to this Chapter.

(Ord. 30969.)

The City Council finds and declares as follows:

A.

Appendix P to the 2022 California Building Code has no substantive changes from Appendix O to the 2019 California Building Code adopted by the California Department of Housing and Community Development ("HCD"). The structures including Tents (as defined in the Emergency Housing Appendices), buildings or Emergency Transportable Housing Units (as defined in Part 2) assembled, constructed, or owned by the City or by the City's contractors shall comply with the Emergency Housing Appendices, more specifically to Appendix P to the 2022 California Building Code except as expressly provided in this Ordinance, as may be amended or updated and approved by HCD.

B.

Pursuant to Government Code section 8698.4, where the City anticipates a need to vary from the requirements of the Emergency Housing Appendices it must provide findings stating why the standards in the Emergency Housing Appendices cannot be met and stating how the standards in this ordinance protect health and safety, which findings are summarized in this Section.

C.

Homeless Shelters may be established in locations which do not have running water available, which may make it difficult or impossible to meet the requirement for running water in Emergency Housing Appendices Section P110.3, potentially preventing the use of the location for a Homeless Shelter and hindering mitigation of the shelter crisis. Where running water is not available on the property, portable toilets and lavatories and mobile washing and bathing facilities shall be provided consistent with the adopted guidelines, subject to the approval of the applicable official of the Enforcing Agency (as defined in Part 2) as being sufficient to protect health and safety.

D.

Tents and other non-hard sided structures shall have privacy locks required by Emergency Housing Appendix P Section P103.5 made available to the occupants where installation of such locks cannot be accomplished due to the physical limitations of the tents and other non-hard sided structures, the locks provided shall be intended to protect health and safety.

E.

Authority for alternative compliance and/or modifications that are reasonably equivalent to or more restrictive than the requirements in the Emergency Housing Appendices by the applicable official of the Enforcing Agency where the original requirements cannot reasonably be met, provided that the applicable official has determined that the modifications protect health and safety.

F.

The City has determined that consistent with providing improved circumstances possible for the largest number of homeless persons during the shelter crisis, that for a single-occupancy buildings and structures,

the minimum square footage required by Emergency Housing Appendix P Section P103.3 shall be reduced to 53 square feet, which is adequate.

G.

A large number of the City's homeless occupy vehicles including Recreational Vehicles, where they live and store their remaining possessions and the vehicles that they occupy often do not include the capacity to provide heating and would exclude these recreational vehicles from a Homeless Shelter allowed for safe parking due to this lack would have a negative impact on the health and safety of the occupants and would prevent, hinder, or delay the mitigation of the effects of the Shelter Crisis, and the City cannot reasonably retrofit these resident's vehicles to provide heating, thus the City has determined that where a vehicle is owned or controlled by the occupant, not the City, it shall be presumed to provide adequate heating required by Emergency Housing Appendix P, Section P103.6 unless the applicable official of the Enforcing Agency determines that it is not watertight and sealing it is not possible.

(Ord. 30969.)

Part 2 - DEFINITIONS

The definitions set forth in this Part shall govern the application and interpretation of this Chapter. Words and phrases not defined in this Part 2 shall be interpreted so as to give this Chapter its most reasonable application.

(Ord. 30969.)

"Emergency Housing" shall mean any housing or shelter provided during a declared shelter crisis in public facilities including Homeless Shelters to persons without the ability to obtain shelter.

(Ord. 30969.)

"Emergency Housing Appendices" means the building standards related to emergency housing and emergency housing facilities adopted in response to the shelter crisis and other emergencies in voluntary Appendix O to the 2019 California Building Code and voluntary Appendix X to the 2019 California Residential Code which are now found at Appendices P and AZ, respectively in the 2022 versions of these codes voluntary Appendix O to the 2019 California Building Code and voluntary Appendix X to the 2019 California Residential Code which are now found at Appendices P and AZ, respectively in the 2022 versions of these codes.

(Ord. 30969.)

"Emergency Transportable Housing" shall have the meaning provided in Emergency Housing Appendix P.

(Ord. 30969.)

"Enforcing Agency" means the City of San José.

(Ord. 30969.)

"Homeless Shelter" means a facility with overnight sleeping accommodations, the primary purpose of which is to provide temporary shelter for the homeless that is not in existence after the declared shelter crisis. A homeless shelter may include supportive and self- sufficiency development services. A "homeless shelter" shall also include a parking lot owned or leased by the City of San José or a JPA (as defined below), which lot is specifically identified as one allowed for safe parking, either overnight or 24/7, by homeless and unstably housed individuals.

(Ord. 30969.)

"JPA" means an agency or entity created pursuant to the Joint Exercise of Powers Act, California Government Code section 6500 et seq., which has the City of San José as a member.

(Ord. 30969.)

"Lease" means a ground lease, airspace lease, or other written agreement, including but not limited to a license or right of entry agreement that gives the City the right to develop or establish and operate a Homeless Shelter on the property of the party executing the agreement.

(Ord. 30969.)

"Mobile Shelter Community" means a parking lot or similar area owned or leased by the City of San José or a JPA (as defined below), which area is specifically identified as one allowed for safe parking, either overnight or 24 hours per day, seven days a week. Mobile Shelters may allow RV's and Tents.

(Ord. 30969.)

"Recreational Vehicle" or "RV" means a motor vehicle (including, but not limited to, motor homes, travel trailers, truck campers, or camping trailers with or without motive power) that includes living quarters designed for, or modified to include, accommodation.

(Ord. 30969.)

"Shelter Crisis" means a crisis declared by the City pursuant to Government Code section 8698 et seq.

(Ord. 30969.)

"Tent" means a structure, enclosure or shelter, with or without sidewalls or drops, constructed of fabric or pliable material supported by any manner except by air or the contents that it protects.

(Ord. 30969.)