Amid a rise in people living without shelter, one Northeast Kingdom town is proposing to ban people from sleeping anywhere on municipal property — a move the Vermont chapter of the American Civil Liberties Union says is likely unconstitutional.
An ordinance unanimously adopted by the Canaan Selectboard on Aug. 21 would prohibit anyone from sitting, standing or loitering “in or about any municipally owned or municipally maintained land, park, building, or parking lot between the hours of 10 p.m. and 5 a.m.” unless authorized by a town official.
The measure would also ban anyone from sitting, standing or loitering on any “street, sidewalk, municipal land, building, or any other public space in town” if an “owner, tenant, or custodian thereof” asks them to leave.
The ordinance notes that “persons who have a legitimate purpose for sitting or standing in such public places” can do so, but does not specify what a “legitimate purpose” could be.
Lia Ernst, legal director for the Vermont ACLU, said the measure “raises a number of constitutional concerns.”
“It violates the Eighth Amendment’s cruel and unusual punishment clause to criminalize sleeping in public spaces when there’s nowhere else to go,” she said. And she added that anti-loitering ordinances are usually found to be unconstitutional.
Indeed, unhoused individuals in Canaan, an Essex County town of fewer than a thousand people, have scant available options. Vermont has one of the highest per-capita rates of homelessness in the nation, and not enough shelter beds to meet the need. But in the Northeast Kingdom, one of Vermont’s poorest regions, the problem is not that shelters are full. It’s that they do not exist.
There are no overnight shelters for the general population operating anywhere within Essex, Orleans or Caledonia counties, according to Martin Hahn, the executive director for the Vermont Coalition to End Homelessness. (Some specialized beds are operated by Northeast Kingdom Community Action, an anti-poverty nonprofit, and Northeast Kingdom Human Services, the region’s mental health agency, he noted.)
Canaan selectboard chair Mark Bullard declined to discuss the new ordinance with a reporter, saying that he wanted to consult with the rest of the selectboard first.
“I don’t want to … have the town being sued for something that I said (that) was misconstrued,” he said. “So I’d rather just get with the other board members, get something concrete, and let you know.” He declined to offer a time at which he might be ready for an interview.
The ordinance is not yet in effect, as Canaan residents could still petition the town to hold a special town meeting to vote on the matter. But unless 5% of the town’s voters sign on to such a petition or the selectboard repeals the ordinance, it will go into effect Oct. 20, according to Canaan town clerk Zachary Brown.
Canaan’s ordinance comes as Vermont’s homelessness crisis has grown more visible — particularly at the local level. On June 1, hundreds of people were evicted as the state wound down a pandemic-era program that had allowed unhoused individuals to shelter in motels.
The Vermont ACLU released an open letter at the time urging municipalities to take a “humane and flexible approach” to people experiencing homelessness sheltering on local public land.
It noted that while municipalities can legally prohibit encampments at certain locations, they cannot ban people from sheltering on all public land, as Canaan’s ordinance appears to attempt to do.
Ernst said the ACLU was anticipating an ordinance much like Canaan’s when it released that letter. She argued that while it remains incumbent on towns and cities to act constitutionally and with compassion, her organization is “not unsympathetic to municipalities” who are “being asked to bear the burden of this statewide failure.”
“This is a fairly predictable and foreseeable example of what everyone said was going to happen when the Legislature and the governor evicted hundreds of households from the hotel voucher program,” she said.
Correction: An earlier version of this story misstated Lia Ernst’s role for the Vermont ACLU.
