The 1231 Second St. winter shelter, housed in an old Public Works building, opened for the first time last season. The city is considering whether to use the space again. Photo: Natalie Orenstein

It would cost the city of Berkeley nearly $1.2 million to provide 268 shelter beds for people experiencing homelessness this winter, according to papers filed Tuesday in federal court.

That would still leave at least “420 people in Berkeley unsheltered on any given night,” according to the document, written by Deputy City Attorney Lynne Bourgault. The city cannot provide shelter for all of its homeless residents “without substantial additional resources that the City currently does not have.”

Earlier this month, a federal judge required the city to submit a plan by Tuesday for how it will shelter its homeless population over the winter. The order stemmed from a lawsuit filed against the city and BART by residents of a homeless camp on BART property near the “Here There” signs at the Berkeley-Oakland border.

U.S. District Court Judge William Alsup ordered the city to submit a plan “that will shelter substantially all of Berkeley’s homeless.” Alsup also ordered the attorney representing the campers who filed the suit to submit the plaintiffs’ vision for shelter, writing: “Failure to be specific may be a sign that there is no practical solution.”

The city’s “practical plan” document offers Bourgault’s analysis about the possibility of sanctioned encampments in Berkeley; provides an overview of the money the city currently spends on services and shelter; and offers a frank assessment of the city’s approach to enforcement related to illegal camping and other use of public space. It also looks at what several approaches to winter shelter could be as the season changes and outdoor conditions worsen.

The city spent about $400,000 in 2016-17 on its winter shelter program at the Berkeley Emergency Storm Shelter (BESS) and at 1231 Second St. According to Bourgault, Berkeley does not have enough space to provide shelter beds for everyone sleeping on city streets, even if money was not an issue.

“The few city-owned facilities that could conceivably be prepared in time for winter — questions of funding aside — would only house an estimated 268 of the 664 people experiencing unsheltered homelessness in Berkeley on any given night,” she wrote.

The city says potential options for winter shelter beds include the traditional BESS model, run by the Dorothy Day House; a return to 1231 Second; new city-owned property at 1011 University Ave.; the as-yet-unbuilt STAIR Center on Second Street between Cedar and Virginia; and the basement of Old City Hall.

But each of those locations has limits or challenges. The BESS model only has room and funding for 65 people for up to 45 nights, or 21 people if the beds are available for the entire 140-day season.

The 1231 Second St. location is currently being used by the Public Works department. If the space is used for shelter instead, 47 beds would be available and staffing and operations would cost nearly $94,000.

The old Premier Cru building, where the city hopes to one day build affordable housing, could be converted “into an emergency, barracks-style sleeping space” at a cost of $186,000, “with an unknown (and possibly substantial) cost for repairs (including a leaky roof), heating, and utilities.” The city says 75 people could sleep there.

Assuming the new STAIR Center on Second could open in time for the winter season, it “would come at an estimated capital cost of roughly $332,000 and a staffing cost of roughly $93,660 for a total of $425,660” as a winter shelter. That center would be part of the Pathways program, which has been a major initiative of the council majority elected last year.

As far as Old City Hall, at 2134 Martin Luther King Jr. Way, the basement is “not seismically up to code, but is indoors. With work to improve the facility, including bathrooms and securing access to other parts of the building, the basement could likely accommodate about 75 people each night for approximately $100,000 in capital and $186,000 operating.”

Tuesday night, Mayor Jesse Arreguín proposed making mid-year budget allocations of about $2.4 million toward services and shelter related to homelessness: $1.9 million for the Pathways project on Second; $300,000 for the winter shelter program; $170,000 to help pay for other shelter needs; and $50,000 for a downtown storage pilot program. Council is slated to discuss and vote on the proposal next week.

Regarding enforcement, the city does have rules that “make it illegal to, e.g., camp in City parks, camp at the Berkeley Marina, use a ‘house car’ for human habitation, or sleep or lie across sidewalks in the commercial districts.” But, the attorney continues, “these ordinances are rarely enforced and even more rarely result in criminal citation.”

She goes on to describe the Berkeley community as “quite tolerant of the challenges associated with homelessness,” and says the city “provides significant support to homeless people.” That includes nearly $6 million each year from the Department of Housing and Urban Development, the bulk of which goes toward permanent housing subsidies. The federal money provides 260 permanent housing vouchers for homeless people with disabilities, and supports 60 transitional housing beds for single adults and families, according to the city.

The city also uses nearly $4 million each year from its General Fund to support a “robust network of emergency shelter, transitional housing, and rapid rehousing (short-term subsidies).” In 2016, “this network of services helped 2,681 people struggling with basic needs live better lives.”

Bourgault writes that the city could face legal risks if it decides to create sanctioned encampments because those camps may not meet the basic health and safety standards required by law. The camps would also divert resources away from the approach the city has taken to date, she wrote. Focusing on permanent housing for the most vulnerable unsheltered individuals is an approach that has been endorsed by the federal government and experts in the field, she continued.

“City staff have been reluctant to pursue sanctioned encampments precisely because they distract limited resources, staff time, and nonprofit capacity from the ultimate goal: actually ending people’s homelessness by getting them housed,” she wrote.

What Berkeley has focused most of its resources on are “national best practices” through its Hub program and the Berkeley Way project that is in development downtown. Berkeley Way — 89 affordable units in a 6-story building — is set to cost $51 million, or $578,000 per unit, and feature a service center called the “Hope Center” that will also have 44 shelter beds. The city is also pursuing its Pathways project, set to one day feature an outreach team, a 50-bed shelter, 50 tiny homes that would help provide a bridge to permanent housing, and a “Homeward Bound” program that would help unsheltered individuals reunite with friends and family with permanent housing in other cities.

The attorney’s analysis was decidedly lukewarm on the subject of sanctioned camps. Wrote Bourgault: “Every dollar spent on operating sanctioned encampments is a dollar not spent on housing subsidies, supportive case management, or respite programs.”

She did note that a new law at the state level, which goes into effect Jan. 1, would allow the city more flexibility related to homeless shelters — and provide protection from lawsuits —  if the city enacts its own health and safety standards and gets them approved by the state. That process would take some time, though.

Bourgault also noted that the city is not legally allowed to use parks or other open space as homeless camps without voter approval, and cannot use Berkeley Marina land for that purpose because it would be inconsistent with the Public Trust Doctrine that allows Berkeley to use that land.

But Bourgault told the judge it can be a challenge to enforce the city’s laws related to camping in public places.

“Arrests and citations are infrequent, and are usually unrelated to lodging in public,” she wrote. When there is enforcement, she continued, “Typically, persons who are camping on public property move to a new location, and the City undertakes efforts to remove trash, and thoroughly clean the area. Often, the encampment then moves back to its previous location.”

Represented by attorney Dan Siegel, the plaintiffs wrote that the city “has chosen to ignore the Court’s direction” to come up with a plan to shelter the homeless. According to Siegel, the city argued it could not shelter the bulk of the city’s homeless this winter, and thus did not provide a plan to do so. The plaintiffs say their practical plan includes suspending city rules against a variety of activities: sleeping in cars and RVs; camping and sleeping on marina land, and in other public parks and open spaces; lying on commercial sidewalks during the day; and lodging on public property.

Siegel writes that normal police services, garbage pick-up, porta-potties and hand-washing stations should be provided anywhere camping is allowed in Berkeley, and that the city should make its public restrooms more readily available.

Last week, the city filed a motion to dismiss the plaintiffs’ lawsuit, writing that plaintiffs failed to provide specific claims or allegations that would give the suit enough legal standing. A hearing has been set for arguments about that subject Dec. 28 at 450 Golden Gate Ave., San Francisco, in Courtroom 8 on the 19th floor.

Emilie Raguso (former senior editor, news) joined Berkeleyside in 2012 and covered politics, public safety and development until her departure in 2022. In 2017, Emilie was named Journalist of the Year...