The Arizona Supreme Court has refused to reconsider a court ruling that found Tucson liable for the public nuisance created by homeless camps in a midtown neighborhood wash.
Adrian Wurr, co-chair of the Hedrick Acres Neighborhood Association and one of three plaintiffs who originally sued the city, said the Supreme Court’s decision allows the trio to “breathe a sigh of relief.”
“With the Appellate Court decision we were pleased of course, we felt it was the right decision and corrected an error of the Superior Court kind of trying to separate between the homeless camps, which they agreed the city consented to, but not the trash and drug abuse, that (the court) said the city didn’t consent to,” Wurr said.
Wurr said he and the plaintiffs thought the homeless camps and the issues stemming from them “were two sides of the same coin.” The Supreme Court’s refusal to review the appeal, he said, makes him and the other plaintiffs feel the courts see it their way.
“We did not ask for damages, we simply just wanted the city to uphold existing laws so that the park could be enjoyed by everyone,” Wurr said Wednesday.
In September 2023, Wurr, a neighbor and a business owner in the neighborhood sued the city over homeless encampments continuously cropping up in nearby Navajo Wash. They argued in Pima County Superior Court that city was liable for policies on homeless camps in the wash that were a both a private and public nuisance.
The state Supreme Court has let an appellate court ruling that found the city liable for homeless camps in a midtown neighborhood wash stand.
The neighbors sought an injunction to force the city to remove the camps, but were denied in a Pima County Superior Court ruling. That ruling concluded that the city did not cause the encampments to move in, nor did its tiered protocol when it comes to encampments “set in motion” any nuisance within the wash.
The Appeals Court disagreed. Earlier this year it said the city “is liable if it consents to the activity that causes the nuisance, notwithstanding the City’s designation of that activity by tier or under any other classification system.”
“In the Navajo Wash, the nuisance is the drug paraphernalia, the refuse, the feces, and the fires. But the activity that causes that nuisance is camping by homeless individuals, which led to a total abatement of the Navajo Wash encampments at least ten different times in the ten months preceding trial,” wrote Presiding Judge Michael Kelly, who presides over the Arizona Court of Appeals.
“Because the City knew the activity of homeless camping in this location was being carried on and that it repeatedly and continually caused a nuisance, the trial court erred . . . The City is liable for the public nuisance in the Navajo Wash, and the Appellants are entitled to injunctive relief.”
The state’s high court last week declined to review the appellate ruling.
That means the case will return to Pima County Superior Court “to enter judgement in favor of the Appellants on their claim for injunctive relief,” Kelly wrote.
On Wednesday, city spokesman Andy Squire said the city attorney’s office is reviewing the ruling and will discuss its next steps with the city council.
“While we are disappointed in the Court’s unwillingness to address what we assert to be an overreach by the Court of Appeals, we believe Mayor and Council have already taken the necessary steps to address this issue by passing Ordinance No. 12182 in June of this year, prohibiting camping in wash areas and giving City staff the tools they need to both enforce the ordinance and support our unhoused neighbors getting into permanent housing,” Squire said in an email.
The city implemented its three-tiered Homeless Encampment Protocol in 2022, but homeless people began setting up encampments in the wash beginning in 2018 or 2019, Wurr said. And according to the Appeals Court’s decision from earlier this year, encampments in the wash reached tier-three status “on at least ten separate occasions between April 2023 and February 2024,” which means the encampment is a danger to its inhabitants and the surrounding community and needs to be cleared.
This week the Goldwater Institute said, rather than enforcing laws to protect “public health and safety,” the city’s tiered protocol has “amounted to permission for people to live in the park illegally.”
“Homelessness is a tragic and frustrating issue. But policies that leave people living on the streets aren’t the answer. Instead, they only create a new set of victims: the innocent taxpayers who must pay for police protection that they don’t receive,” the organization said in a news release. “The time has come for city officials to shoulder their responsibilities — instead of forcing homeowners to shoulder the costs.”
