Few are happy with Missoula’s new urban camping law — not the No Camp Missoula contingent pushing to ban encampments in city parks altogether, and certainly not Brad Carlson.

Carlson, who has been homeless since 2021, represented Missoula’s unhoused community during the city’s process to develop its partial ban on urban camping, which the city council adopted less than four months ago. He’s now challenging the law in municipal court, placing the blame for what he called uneven enforcement at the feet of city officials.

“City officials and employees have a duty to follow the law,” he wrote in a court filing. Whether his claim has standing — and indeed, whether he can actually seek the redress he desires in the limited venue of municipal court — is now up to a city judge.

Carlson was the first person cited under the new ordinance, which bans camping on city land from 8 a.m. to 8 p.m. and within certain distances of schools, businesses, shelters, sidewalks and waterways, among other restrictions.

In a pair of citations filed in late August, the city alleges that Carlson had camped too close to the Clark Fork in one instance and camped too close to a sidewalk in another. The second citation also alleges that Carlson left personal items outside of his camp structure.

Initial violations of the ordinance are punishable through a written warning. Subsequent violations are charged as a “municipal infraction.”

Carlson denied the allegations and has asked the court to dismiss them, according to court records. But he’s also filed a counterclaim against the city, alleging that the city’s enforcement of the ordinance is inconsistent and improper.

The ordinance, Carlson notes, says that “any enforcement action should be compassionate and should attempt to minimize adverse impacts on the individuals subject to the enforcement to the extent feasible” under the circumstances.

“There were no ‘enhanced resources’ or ‘incentives’ offered before enforcement action or judicial enforcement was pursued,” Carlson, who is representing himself in court, argues in his motion, filed in early October.

He also says the city violated his due process rights and that police cited him based on a faulty understanding of the so-called buffer zones in the ordinance. He argues that Mayor Andrea Davis failed to develop “a resource guide in the form of a map or list” to help houseless Missoulians navigate the ordinance, one of its conditions.

“City officials and employees have not had enforcement action taken upon them for being in violation of the same ordinance,” he argues.

Dale Bickell, the city’s chief administrative officer, told the Missoulian this week that while the city is still developing some of its resources for urban campers, most people have successfully navigated the ordinance.

The city raised a number of procedural and jurisdictional issues in its response to Carlson, and also denied the allegations in his motions.

“As provided by law, this proceeding should be speedy, efficient, and informal. Mr. Carlson’s motions frustrate this intent, but also provide an opportunity for clarification,” attorneys for the city stated in a response filed October 15.

The general rules of civil procedure that would govern other legal matters don’t apply here, the city says. That’s because rules related to municipal infractions come from a specific state statute with its own set of regulations.

For one, “the municipal infraction proceeding statutes do not provide for actionable counterclaims against the municipality prosecuting a petty offense,” the city argues.

Attorneys for the city continue: “Claims against the municipality for damages or tort or civil rights actions must be brought in state or federal court. Municipal infraction proceedings are binary proceedings — asking only whether the violation occurred — just like criminal proceedings from which they originate.”

If the court is to allow these proceedings to include the trappings of a normal court case — counterclaims, discovery and “accouterments of other types of civil proceedings” — the city will not be able to use municipal infractions to enforce the ordinance, it warned.

“If the Court authorizes civil litigation for municipal infraction cases, the City will likely be forced to revert to criminal proceedings for all ordinance violations,” the city wrote.

Judge Eli Parker had allowed Carlson to file his counterclaim motion in a hearing last month. Parker will now hear both parties’ arguments on the motion on October 24. That’s the day after Missoula City Council will hold its initial hearing on a proposed ordinance to entirely ban urban camping in the city, a possibility created by a recent U.S. Supreme Court ruling effectively allowing cities to criminalize homelessness even when no shelter beds are available.

A new growth policy

Missoula has released a draft of its forthcoming land use plan, a “foundational document” that “establishes guidelines for public and private land and is crucial for aligning future development with community priorities.”

The “Our Missoula 2045 Land Use Plan” will update the city’s existing 2035 growth policy. Among the draft’s major points: Missoula needs to add between 22,000 and 27,500 new housing units by 2045 to accommodate a projected 1.4 percent cumulative annual growth rate, which would put the plan area’s population at roughly 128,000.

“In order to meet the community’s housing needs when accounting for historic underproduction of housing, the community should build between 1,100 to 1,500 new homes per year until a stable housing market is reached, and then set a yearly target to produce between 900 and 1,100 homes per year through a 20-year timeframe for this plan,” the document says.

The city was already beginning the process of developing a new growth plan when the Legislature passed the Montana Land Use Planning Act last year, requiring many Montana cities to draft a new plan that complies with a slate of other urban planning laws that the Legislature passed in the same session. Those laws generally require Montana cities to streamline permitting and public participation processes, allow for accessory dwelling units and duplexes and other provisions to encourage what bill sponsor Sen. Forrest Mandeville has called “gentle density.” This plan reflects Missoula’s response to that directive from the state.

Missoulians now have the opportunity to review and comment on the plan. Comments submitted before October 31 will be considered by city staff while comments submitted after that date will be considered by the planning board and city council, the bodies that will ultimately vote on the plan.

The ledger #️⃣

37,000

Projected number of new Missoula residents by 2045, according to a draft of the city’s new growth plan.

The week ahead 🗓️

The proposal to outright ban urban camping in the city goes before a Missoula City Council committee on Wednesday, October 23.

The city’s giving a presentation on the draft Our Missoula 2045 Land Use Plan on Monday, October 21, from 12 to 2 p.m. at the Missoula Public Library, and city staff will also be at the library on Wednesday, October 23, from 10 a.m. to 12 p.m. for more informal discussion.

The second installment of Downtown Dialogues is on Tuesday, October 22, from 4 to 6 p.m. at the First Interstate Bank Building. The theme is “Failing Forward,” and local business leaders will share their experiences of navigating setbacks and turning failures into opportunities for growth.