Clergy dispute Mercer Island's Tent City rules

Clergy on Mercer Island want the city to change a new ordinance aimed at regulating homeless encampments like Tent City 4, arguing the city's new rules limit their constitutional right to minister to the homeless.

And a constitutional-law professor has agreed with the clergy's assertions, saying the ordinance, passed by the City Council 5-2 last month, "trampled all over the church's rights."

"It's actually kind of precisely how you're not supposed to treat churches as a city," said Stewart Jay, a law professor at the University of Washington.

At issue is the Mercer Island clergy's religious right to host the homeless encampment as part of its ministry. Law experts say that hosting a homeless encampment is a protected religious activity and that cities are required to use the least restrictive means necessary to regulate such camps.

But city officials say they welcome Tent City and have been in talks with the clergy to try to come up with a solution. Mayor Jim Pearman said it's possible the ordinance could be reconsidered. After initial discussions with the city, some ministers say they are hopeful they can find a resolution and plan to continue talking.

City officials say the ordinance is supposed to ensure the encampment and its residents are respectful of residents and neighborhoods. The camp of about 100 homeless men and women rotates among Eastside cities and is now in Issaquah.

Mercer Island clergy are most concerned about a requirement that says Tent City's managing organization must obtain warrant and sex-offender checks for residents within seven days of their arrival on the island, and the Tent City host is responsible for verifying checks took place. They also dislike other features of the ordinance: a time restriction that says 18 months must pass before a camp can return within 1/2 mile of the previous site, a requirement that the host church enforce the camp's code of conduct including no alcohol, no weapons and no drugs; and a requirement for an informal public meeting before applying for a permit to host Tent City.

"We feel it's a way to prevent us from having Tent City, going through these hoops," said Mark Travis, president of the Mercer Island Clergy Association. "This ordinance just plays into the stereotype of Mercer Island not being a welcoming place."

Mercer Island City Attorney Katie Knight said compared with those of other municipalities, Mercer Island's ordinance is "middle of the road."

"I'm surprised that after all these years of litigation ours would raise any eyebrows whatsoever," she said.

The ordinance went through several public hearings. Clergy members attended hearings but could have spoken up more during the public process, Travis acknowledged.

Leslie Ann Knight, pastor of Mercer Island United Methodist Church, which hosted Tent City in 2008, said the clergy is not responsible for making sure an ordinance is constitutional.

"Part of it was we did not pay close enough attention, but it really isn't our job to be writing constitutional ordinances," she said.

The state Legislature also passed a bill recently, which awaits the governor's signature, that provides cities with guidelines on what is and is not acceptable when adopting an ordinance regulating homeless encampments.

The bill requires churches to get insurance to prevent cities from getting sued, which takes care of one concern the clergy had over signing a "hold harmless" agreement, Knight said, but otherwise doesn't appear to impact any other elements of the ordinance.

Other Eastside cities have floundered while trying to regulate Tent City or even keep it out. Bellevue had a yearlong, contentious debate before the city agreed on a policy. The state Supreme Court recently ruled the city of Woodinville could not refuse to consider permits from churches for homeless encampments, calling a ban on the encampments unconstitutional.

State law has come down in favor of religious institutions, and Mercer Island's ordinance clearly limits churches, said law-professor Jay. Applying warrant checks to just the homeless encampment and no one else on the island is unconstitutional, he said. A restriction on weapons is a problem, he said, because the city is not allowed under state statute to have regulations on firearms.

Mercer Island was obviously trying to balance previous Tent City cases while drafting the ordinance, he said.

"It very likely violates federal statue, the federal land use statute, and I think clearly the Washington State constitution," Jay said.

Ted Hunter, the attorney for Share/Wheel, which oversees Tent City, said the organization believes ordinances that require warrant checks are unconstitutional because they treat a population of people differently. But Share/Wheel chooses not to contest the requirement in court and instead educate by complying with various city ordinances, he said.

Warrant checks provide cities with some sense of security, said Hunter, who said Mercer Island has been welcoming to Tent City.

"There's a broad array of concerns and passions about the homeless populations," he said. "From a Share/Wheel perspective, we think a lot of the concerns are misplaced."

The Mercer Island clergy association also has been working with the Greater Church Council of Seattle on the dispute. Executive Director Michael Ramos said the pastors are highly regarded members of the community.

"This is a fundamental religious duty to shelter those who are homeless and feed those who are hungry," he said. "The Mercer Island ordinance flies in the face of that basic right."

Nicole Tsong: 206-464-2150 or ntsong@seattletimes.com

Information in this article, originally published March 15, 2010, was corrected April 2, 2010. A previous version of this story incorrectly stated that a recent state bill requires churches hosting encampments to get insurance to prevent cities from being sued. The law actually prohibits cities from requiring the insurance. The story also said the ordinance requires warrant/sex offender checks within seven days of arriving on the island. The ordinance requires checks within seven days before arrival.