LITIGATION BACKGROUNDER

Akron Right to Shelter

Akron Charity Sues for Right to Shelter the Homeless

In America, as elsewhere since ancient times, people have used their land to shelter the neediest. The Underground Railroad relied on private homes to shuttle escaped slaves to freedom, property owners during the Great Depression let the homeless build encampments on their land, and houses of worship have long taken in those with nowhere to go.

Following this tradition, Sage Lewis pioneered an innovative community for the homeless on his commercial property at 15 Broad Street in Akron, Ohio. Sage’s nonprofit, The Homeless Charity, provides tents, food, a community day center, showers, bathrooms, laundry, clothing, computers, and social-service resources to 44 residents. Sage’s goal is to help those most in need transition from the streets to permanent housing.

But the City of Akron is trying to eliminate his work. The city has concluded that the tent village is incompatible with its surroundings and the city’s zoning code. To advance vague interests in aesthetics and harmony, the city is willing to cast the homeless back onto the streets or into a shelter system they fear. The harm this poses to the community’s residents is profoundly disproportionate to the miniscule public benefits stemming from prohibiting sleeping on commercial property. That is why Sage and The Homeless Charity (representing itself as well as the residents) have brought a constitutional challenge to save their community, ensure that the residents have every option on their road to permanent housing, and establish a low-cost/high-impact, private-sector model that can be implemented in any city.

Sage’s Vision: Creating A Home for Those Without

Sage and his wife, Rocky, are Ohio natives and entrepreneurs. In 2010, they bought a commercial building at 15 Broad Street in the Middlebury section of Akron. The area surrounding their building is dominated by commercial and non-single-family uses. A tire store, mattress store, fire station, and church are nearby. The church operates low-income senior-citizen apartments next to 15 Broad, and a low-income housing complex is under construction across the street.

Sage never expected to be helping Akron’s homeless. In fact, he befriended them by accident. In 2015, Sage ran for Akron mayor as an independent and needed hundreds of signatures to get on the ballot. As he walked the streets asking for signatures, Sage learned the stories of the homeless. They stopped being stereotypes and became real people with understandable, often heartbreaking, struggles. This was a life-changing experience, and Sage started hiring the homeless to help him with his auctioneering business at 15 Broad. He next gave them permission to open a thrift store peddling unsold items from the auctions. All proceeds went to the homeless themselves. Step by step, a community coalesced around Sage’s building and his and his wife Rocky’s willingness to help.

In January 2017, Summit County Metro Parks evicted 40–50 homeless adults from unsanctioned campsites in the woods along unused railway tracks. The agency ousted the homeless to extend the Freedom Trail hiking path. Facing freezing temperatures and nowhere to go, some asked Sage for permission to set up their tents in the backlot of 15 Broad. They hoped that staying on Sage’s private property with express permission would alleviate the ever-present fear of eviction or arrest that comes from squatting illegally on public or private land. Plus, Sage’s building provided shelter from the bitter winter wind, and the basement of 15 Broad could be used to warm up.

This initial version of the community that exists today had a rough start. Sage allowed anyone to set up a tent and imposed few rules. This, he now recognizes, was a mistake because people lit fires, drank, and made noise. Much of the controversy over the tent community today involves concerns about things that happened in the early days and no longer occur.

Sage took these concerns to heart and retooled his approach. He created a structure for governance and rules. First, every new resident must undergo a drug and alcohol evaluation as well as a mental-health screening. Sobriety is a key step, and no one may drink or use drugs on the property or be present if intoxicated. Quiet time lasts from midnight through 8:00 a.m. each day.

Next, the community is self-governed by the “Tri-Council,” which the residents elect from among their own every three months. The Tri-Council enacts and enforces the Code of Conduct, mitigates conflict, and evicts residents who cannot follow the rules. There are procedures, including procedures for appeal, when someone violates the Code. The Code ensures that the tent community remains a positive place where residents can overcome their obstacles.

The residents make the community run smoothly with their own labor. Unless a resident has an outside job, everyone must work at least one hour each day. They clean bathrooms, organize and distribute donated clothing, oversee the thrift store, cook, maintain the donated computers, tend to the garden, and provide security. Many residents obtain “staff” positions within the community and work the equivalent of full-time jobs. The responsibility, leadership, and personal pride that come with staff jobs help residents prepare for regular employment and transition back to housing.

The effect of 15 Broad is evident in the upward swing of its residents. The most important benefit is physical safety. Life on the streets poses immense risks of assault, sexual violence, theft, and weather extremes. Everyone at 15 Broad—especially women, gay men, and the elderly—reports feeling much safer in the tent community than on the streets or even in a traditional shelter. The resident-run security team operates around the clock and includes female members. No one tolerates violence, theft, threatening behavior, or verbal abuse.

Beyond the tents, 15 Broad also offers food, showers, laundry facilities, bathrooms, clothing, computer access, social-service resources, and the other support residents need to transition to permanent housing. This community dayroom at 15 Broad is open to all Akronites and assists many whose lives teeter on the edge of homelessness.

The charity also provides stability. The traditional shelters force people to leave each morning with their possessions and wait in line in the evening for a bed. They also restrict how many nights a person can stay, separate couples, pressure the homeless into religious observance, and grant no privacy. At 15 Broad, by contrast, no one is expected to cart off their possessions for the day and hope a tent is available again that night. No one is kicked out for staying more than a handful of days each month. Couples can stay together if they wish. There is no religious mission. And tents provide genuine privacy. The building is also a central location where social workers and other experts can easily find the homeless day after day.

The homeless have voted with their feet. Forty-four people now sleep at 15 Broad Street, and there is usually a waiting list of at least twenty. That Sage’s model has such appeal, despite housing people only in tents, should inspire creative reevaluation among social-service providers in Akron about traditional approaches to homelessness.

15 Broad, its amenities, and its commitment to meeting the homeless where they are in their lives have created the structure and positivity needed for success. Gary Mikes is a former resident of the tent community. He has since become an entrepreneur and created Houses for the Homeless, an organization that seeks to obtain vacant houses in Akron, renovate them, and provide them as housing for the homeless. He has also recently regained custody of his son. Mary Zettel, a current resident of the tent community and member of the Tri-Council, came to the community after developing an alcohol problem. The sober environment and supportive community have been invaluable to Mary in her sobriety. She now has a job and is searching for an apartment close to 15 Broad so she can remain part of the community.

Sage and Rocky’s property has also become a focal point of Akron generosity. Countless volunteers, from high-school students to the retired, donate their time, money, and used items to the residents and others struggling economically. One grandmother of three makes lunch for fifty every Tuesday and eats with the homeless friends she has made. Other volunteers ferry residents to medical appointments, do maintenance at 15 Broad, and help however needed. This generosity helps 15 Broad operate on a shoestring budget of roughly four dollars per person per day.

As 15 Broad Street evolved, Sage and his supporters realized that it needed more structure. He and his wife, along with other Akronites dedicated to helping the needy, formed The Homeless Charity, a tax-exempt, 501(c)(3) nonprofit corporation. Sage serves as executive director, and there is a five-member board of directors.

The next big step is moving away from just tents. Sage and The Homeless Charity recognize that tents are not a long-term solution for anyone. The Homeless Charity recently acquired a single-family home next to 15 Broad that has been converted into a shelter. Phase two of the charity’s growth will involve buying and renovating low-cost property, such as abandoned houses, to provide more indoor living space. The charity also wants to renovate 15 Broad to allow people to sleep inside, and The Homeless Charity and the city are working together to advance this transition.

But this does not mean that The Homeless Charity will give up its core innovations, including tents. The charity will move people out of tents only when the residents are ready and only when the available indoor housing affords the safety, stability, privacy, and community that presently exists at 15 Broad. The Homeless Charity wants to retain the right to pitch tents if someone needs immediate shelter and an indoor bed is unavailable.

Sage did not create America’s first tent city. Camp Hope operates in Las Cruces, N.M., where it provides tents for fifty people as they seek to transition back to permanent housing. Camp Hope is a nonprofit organization that is supported by the City of Las Cruces, which allowed the camp to be set up on city-owned land. Another transitional living community is Dignity Village in Portland, Or. Though not tent-based, Dignity Village provides sparse living conditions; its structures are made of recycled materials and lack electricity and running water. All of these organizations work to further a common goal: To provide support for the very neediest in society and help to get them off the streets and ultimately into permanent housing.

City Officials Reject The Tent City

In the spring of 2018, the City of Akron asked Sage to apply for a conditional-use permit for the tent community to bring the property into compliance with the zoning code. The building at 15 Broad Street is zoned commercial, which means that residential use is non-conforming. To obtain an exception, called a conditional-use permit, a property owner must submit an application. The planning commission evaluates the application using criteria in the zoning ordinances,  holds a public hearing, and makes a recommendation to the city council to approve or deny the permit. The city council also holds a public hearing and then makes its decision.

Sage submitted his application for a conditional-use permit in April 2018. He supplemented it through September 2018 with supporting documents. These included: a report by a planning expert (the former planning director for the City of Dayton who had addressed homelessness there); declarations and affidavits from himself, current and former residents of the tent community, and other supporters; hundreds of letters from Akronites to the city council; and point-by-point refutations of the city’s position. Not only that, residents and supporters packed city hall for both the planning commission and city council meetings, during which public support was overwhelmingly in favor of 15 Broad.

On July 7, 2018, the planning commission voted 3–1 to recommend denial of the conditional-use permit. On September 17, the city council voted 8–4 to adopt that recommendation. The city council did not have to vote. It could have continued to work with The Homeless Charity on how to shape the conditional-use permit to ensure that Sage can help the homeless while being a good neighbor.

But the city council chose to vote no, pushing Sage and The Homeless Charity into a corner. Under Ohio law, the no vote triggered a 30-day window for challenging the city’s decision in court.

The Homeless Charity Is Fighting Back In Court

Sage and The Homeless Charity have partnered with the Institute for Justice to take the city to court. We argue that the city council’s decision violated not only Akron zoning ordinances, but also the constitutional rights of Sage, The Homeless Charity, and its residents under the Ohio Constitution.

The key theme of our constitutional argument is that the city cannot cast the homeless back into the streets—doing them real harm—to advance vague interests in aesthetics or harmony. In other words, the city’s actions are irrational, and hence unconstitutional, because the actual harm the city is doing to specific people is profoundly disproportionate to the miniscule public benefits of not allowing them to sleep at a commercial property.

Importantly, we are not arguing for a general constitutional rule that anyone can shelter the homeless in tents anywhere, such as typical residential neighborhoods. This case is about a special permit for 15 Broad Street. Its location and commercial character mean that it is an appropriate place for The Homeless Charity to do its work. We recognize that the constitutional analysis may be different for similar work on other property.

Turning to specifics, the city’s actions violate three distinct rights under the Ohio Constitution: (1) property rights; (2) due-process rights; and (3) the right to seek and obtain safety. First, the Ohio Constitution protects property far better than the United States Constitution. For at least 25 years, the Ohio Supreme Court has been at the forefront of a movement by state courts to rely on their constitutions when examining personal rights and liberties. Indeed, the state high court recently held that “the founders of our state expressly incorporated individual property rights into the Ohio Constitution in terms that reinforced the sacrosanct nature of the individual’s ‘inalienable’ property rights."

IJ has had notable success litigating property rights in Ohio state courts. In 2006, the Ohio Supreme Court unanimously held that eminent domain could not be used for private economic development. This was the first case decided by a state high court on that issue following the U.S. Supreme Court’s reviled decision in Kelo v. City of New London, which allowed governments to use eminent domain for private economic development. Susette Kelo’s heartbreaking story of losing her working-class home to wealthy developers, now a major motion picture, did not happen in Ohio because of its strong constitution and judicial enforcement of those rights. IJ represented the property owners in both cases, and has represented Ohio homeowners in another successful property-rights case.

Here in Akron, we will argue that the property rights of Sage and The Homeless Charity prevent the city from shutting down the tent community. Sheltering the neediest members of society is a legitimate and ancient use of private property that the government cannot impede without a very good reason—and no such reason is present in this case.

In addition to property rights, Ohio’s due course of law clause  requires the government to act with basic rationality—a test the city fails here. It is irrational to prevent Sage and The Homeless Charity from sheltering the most vulnerable members of society from the life-threatening dangers of the streets. Whatever abstract interests the city is purporting to advance by denying the conditional-use permit, they pale in comparison to the real harms that eviction will impose on the residents of 15 Broad Street. The due course of law clause does not allow this sort of gross disproportionality.

Finally, the Ohio Constitution enshrines a right to seek and obtain safety. Ohio courts have not determined exactly what this means, but if it means anything, then the destitute and forgotten with no home of their own have a right to seek and obtain refuge on private property with the express permission of the owner.

Litigation Team

IJ Senior Attorney Jeff Rowes and IJ Attorney Diana Simpson represent Sage, The Homeless Charity, and Sage Lewis LLC in the lawsuit. They are assisted by Rebecca Sremack of the Sremack Law Firm LLC as local counsel.

Founded in 1991, the Institute for Justice is the national law firm for liberty and the nation’s leading advocate for private property rights. Since 1991, it has litigated in the courts of law and in the court of public opinion to defend free speech, property rights, economic liberty, and educational choice. IJ is a nonprofit that does not charge its clients for representation.