Judge tosses lawsuit alleging SLC allows ‘nuisances’ by not enforcing camping laws

A judge has sided with Salt Lake City and ruled against a group of residents and business owners that claimed the city was allowing “public nuisances” by not enforcing its anti-camping ordinances against unsheltered people. 

About two weeks after he heard arguments from attorneys on the city’s motion to dismiss the case, 3rd District Court Judge Andrew Stone issued his decision on Wednesday. He granted the city’s motion to dismiss the lawsuit with prejudice, meaning the same claim can’t be filed again in that court. The move effectively canceled a preliminary injunction hearing that was scheduled for May 6. 

In his decision, the judge wrote the business owners who brought the lawsuit against the city “failed to establish that (Salt Lake City) owes them a special duty to remedy or ‘control’ unsheltered encampments beyond that owed to the general public.” 

Judge considering whether SLC allows homeless ‘nuisances’ by not enforcing anti-camping laws

An attorney for the plaintiffs told Utah News Dispatch on Thursday they plan to appeal the decision.

“The judge got this one wrong,” said Ilan Wurman, an attorney with Tully Bailey, the law firm that’s representing the residents and businesses. “His ruling effectively holds that private parties can bring neither public nor private nuisance claims against the government because the government has a general duty not to commit wrongs. In other words, the judge has expanded the scope of sovereign immunity, bringing us back to the mid-twentieth century when you couldn’t sue the government for wrongdoing. We are eager to get this case in front of the appellate courts.”

The judge’s decision comes after the lawsuit was initially filed in September, about a month before Election Day to determine the winner of Salt Lake City’s heated mayoral race. One of the lawsuit’s plaintiffs is a former mayoral candidate, entrepreneur David Ibarra, who was also a supporter of one of Salt Lake City Mayor Erin Mendenhall’s challengers, former Mayor Rocky Anderson. 

Mendenhall handily won reelection, but homelessness, on-street camping and crime was a key issue throughout the heated race. 

In their compliant, the group of nine residents and business owners — who own property in Salt Lake City’s downtown, Central City, and Ballpark neighborhoods — accused Salt Lake City of adopting a policy for “several years now” of “inviting and fostering vagrancy, public camping, public urination, public defecation, and the public use of illegal drugs (including fentanyl and heroin) on its property, to the detriment of several neighborhoods and businesses.”

In a March 14 hearing, attorneys for the nine residents and business owners argued against the city’s motion to dismiss the lawsuit, attempting to frame their claim as a “nuisance case” and urging the judge to consider the city as a liable “landowner” that has allowed a nuisance to persist. 

If the city were a “private landowner,” Wurman argued, “they would never get away with what the city is doing here.” 

But city attorneys argued Salt Lake City is “different than other private property owners because it has property abutting almost every other private property” in the city. They also argued the complaint was too broad and lacked specific allegations about locations of tents or encampments the city has allegedly failed to abate — while also ignoring the city’s “enormous efforts and the realities” government faces when it comes to homelessness. They said the plaintiffs were trying to “shoehorn what is, at face, a disagreement over municipal policy into a law of nuisance.” 

Katie Nichols, an attorney representing Salt Lake City, told the judge during the March 14 hearing that there is “no dispute” that it’s “beyond unfortunate” that homelessness and on-street camping happens in Salt Lake City. “But what we’re talking about here is elevating the individual choices of nine folks and making their properties the priority for the entire Salt Lake City police department.” 

The judge agreed with the city. He wrote that by asserting the city “could create a ‘managed campsite’ or require ‘unsheltered individuals to utilize available emergency shelter beds and available supportive, rapid, and transitional housing units,’ the plaintiffs are implicitly invoking the city’s police powers to remedy existing conditions.” 

“Any given member of the public might complain about how a city allocates its resources, and many such complaints could be articulated under the broad umbrella of nuisance law,” the judge wrote. “The public duty doctrine places limits on when such complaints may be litigated in the courts as opposed to the ballot box.” 

The judge also included a footnote in his written decision that while he didn’t want to minimize the harms the plaintiffs allege they have suffered, he acknowledged it’s “problematic to refer to unsheltered people as constituting a ‘nuisance.’” 

A spokesperson for Salt Lake City Mayor Mendenhall’s office issued a prepared statement on Thursday expressing appreciation for the judge’s “well-reasoned opinion and conclusion that this complicated and nuanced issue is best addressed by elected officials and policymakers, not the courts. 

The mayor’s office also expressed gratitude for the judge’s statement that it is “problematic to refer to unsheltered people as nuisances.” 

“We believe the court’s acknowledgement of the humanity of the unsheltered community is an important distinction in this case,” the mayor’s office said. “Salt Lake City will continue implementing additional resources and services for individuals experiencing homelessness with our partners at the local and state level.”