The Flathead Warming Center—an emergency shelter in Kalispell, Montana—suffered a cruel blow as winter approaches. On September 16, 2024, the Kalispell City Council voted 6-3 to revoke the Warming Center’s permit, even though it has never been cited for breaking any laws. Now, the people that the Warming Center serves may have nowhere to go during the coming cold winter nights. To fight for its right to remain open and serve the community, the shelter has partnered with the Institute for Justice to file a federal lawsuit to vindicate its right to help those most in need. This case is part of IJ’s broader efforts to support private solutions to public problems, like homelessness, ensuring that charitable organizations are not unjustly shut down when they provide vital services to vulnerable populations.
Case Team
Clients
Case Documents
Complaint
Motion for a Temporary Restraining Order
Memorandum in Support of a TRO
Media Resources
Get in touch with the media contact and take a look at the image resources for the case.
J. Justin Wilson Vice President for Communications [email protected]“I was elected by my neighbors and my neighbors have spoken.”
Kari Gabriel, Kalispell City Councilmember, on why she voted to destroy an emergency shelter.
Politics. That is why, in a 6-3 vote on September 16, 2024, the Kalispell City Council voted to revoke the conditional use permit (“CUP”) of the Flathead Warming Center, a nonprofit that provides a warm, safe place for the homeless to sleep during frigid winter nights. The Warming Center never broke any laws. It never violated any condition of its permit. But it became politically unpopular, and so six members of the City Council destroyed it.
Founders Tonya Horn and Luke Heffernan started the Warming Center in the basement of a local church in 2019 to provide warm and safe beds for homeless individuals during the winter. With the generosity of local benefactors, the Warming Center bought a vacant car repair shop in a commercial area at 889 North Meridian. The Warming Center renovated the building and opened in December 2020 with a 40-bed bunkhouse (later expanded to 50), showers, laundry, a kitchenette, and places for social services providers to help struggling Kalispell residents get back on their feet. In 2023–24, the shelter was open for overnight shelter for 205 nights. Its 50 beds sheltered 324 people, many suffering sudden economic emergencies. 1 It served almost 7,000 meals, provided 3,000 showers, ran almost 1,000 loads of laundry, and offered hundreds of hours of access to social services. Its volunteers donated almost 3,000 hours. 2
The Warming Center needed a conditional use permit from the City Council to open. The Warming Center applied in September 2020 and Mayor Mark Johnson signed the permit on behalf of the City Council in November. 3 During that time, everyone agreed that the Warming Center was needed—Kalispell’s planning department staff, the planning commission, and the City Council. People regularly slept in the horse stalls at the Flathead County fairgrounds near the Warming Center’s new location. 4
But the political winds began to change in 2023. The Flathead County Commissioners wrote a public letter in January 2023 falsely stating that “homelessness is a lifestyle choice for some” and “these wanderers are well networked and eager to share that Kalispell has ‘services’ to serve their lifestyle.” 5 A wave of violence against the homeless followed this letter, including the brutal murder of a Warming Center guest. 6
This letter wrongly blamed the Warming Center for larger trends. Montana led the nation in the growth of homelessness between 2007 and 2023. 7 The U.S. Census Bureau registered a 26.54 percent increase in the Kalispell population between 2020 and 2024, which is likely attributable to remote workers moving to the area during the pandemic. 8 Average rent rose from $883 in July 2022 to $1,455 in July 2024. 9 The unemployment rate rose from 2.5 percent in September 2022 to 5 percent in January 2024. 10 From 2021 to 2023, Kalispell lost two critical mental health crisis and treatment facilities. 11
The homeless are only faceless stereotypes if you don’t talk to them. In 2023, Christine Nelson, now 58, found herself homeless after her husband left her. She is physically disabled and has severe PTSD from childhood and adult sexual abuse. 12 Her words: “My first night out, I got ‘egged.’ People threw raw eggs at me and another person that I had made friends with. That was a scary and humiliating experience. You never feel safe sleeping outside. You could be shot, stabbed, or killed. My sense of insecurity is even worse because I am a woman.” 13 For her, the Warming Center is “a place where I don’t have to feel afraid. People here support me. And I can support other people. I get a sense of purpose and pride from helping others in the community.” 14 She will be back on the streets in winter if the Warming Center can’t open.
Or consider Jerome Amundson, who became suddenly homeless in January 2024 when a family member swindled him out of his life savings and his 18-year marriage collapsed. 15 Suffering depression and guilt, he lost his job and became homeless. “I slept outside because I didn’t have anywhere to go. I had never been homeless before. It was all new to me. It was miserable and I felt ashamed. Being homeless made me want to give up. I had everything I wanted in life and then it was suddenly gone.” 16 On what it meant to come to the Warming Center: “I had zero hope and zero love when I walked through the doors. No one judged. Everyone gave me love. I want to give that to other people.” 17 Jerome now has a job at the Warming Center for this upcoming season. He works but cannot afford an apartment. 18 If the Warming Center cannot open, he doesn’t know where he will go.
Everyone who works with the Kalispell homeless—Warming Center staff, an emergency room doctor, a social worker—and the homeless themselves agree that life will become worse for the homeless and everyone in Kalispell if the Warming Center cannot safely shelter people at night this winter.
But the city shut it down anyway.
On September 16, 2024, the City Council passed a resolution revoking the Warming Center’s CUP. 19 Revoking the CUP violated the United States and Montana constitutions. The City Council cannot extinguish the Warming Center’s vested right to carry on its mission via a sham procedure subjecting the Warming Center to made-up standards the city would never apply to anyone else. That is why the Flathead Warming Center has partnered with the Institute for Justice to defend its constitutional right to continue its vital work.
The Warming Center Opens in December 2019.
The Flathead Warming Center is the vision of founders Tonya Horn and Luke Heffernan. They wanted to create a low-barrier shelter that would provide basic services to the homeless year-round and a bunkhouse for sleeping during the frigid Montana winters. Tonya and Luke initially undertook this mission in the basement of a church, but almost nightly the Warming Center had to turn people away because of its very limited capacity. 20 With the number of homeless increasing rapidly in Montana, the Warming Center began to search for a permanent location with greater capacity. 21
In 2020, the Warming Center found a former mechanic shop that was affordable and well-suited to being an emergency shelter. 22 But first, the Warming Center needed two things. First, Kalispell needed to amend the zoning code to allow shelters in the property’s district. Second, the Warming Center needed a conditional-use permit from the City Council.
A conditional-use permit (“CUP”) is required for certain uses of property with the potential to affect others. Bars and large daycare centers, for example, require CUPs in the area where the Warming Center is located. 23 To get a CUP, the property owner must satisfy specific requirements in the Kalispell zoning code, such as prove that the proposed use won’t create excessive noise or traffic. 24
With the help of the city, The Warming Center applied for the zoning amendment and permit in September 2020. Everyone agreed that there was a critical need. The point-in-time count for homelessness in January 2020 registered 79 people without shelter fit for human habitation. 25
City planning staff, in reports issued in October 2020, recommended passing the zoning amendment and granting a CUP, noting that the Warming Center satisfied every condition for a CUP. 26 After hearing community feedback, the City Council unanimously approved the zoning change and the CUP in November 2020. 27 The Warming Center opened on December 23, 2020.
Politicians Unfairly Blame the Warming Center for an Increase in Public Homelessness.
After two uneventful years, in September 2022, the Warming Center obtained the city’s permission to expand from 40 to 50 beds. 28 This step was necessary because the homelessness problem had begun to worsen in the Flathead valley and Montana in general. In fact, Montana led the nation in the growth of homelessness. In its 2024 report to Congress, the federal Department of Housing and Urban Development reported a 551 percent increase in homelessness in Montana between 2007 and 2023. 29
The Flathead valley experienced several trends that likely worsened local homelessness. The U.S. Census Bureau registered a 26.54 percent increase in the Kalispell population between 2020 and 2024 30 , which is likely attributable to remote workers moving to the area during the pandemic. 31 Average rent rose from $883 in July 2022 to $1,455 in July 2024. 32 The non-seasonally adjusted unemployment rate rose from 2.5 percent in September 2022 to five percent in January 2024. 33 These trends, coupled with the crisis in mental-health care, resulted in more visible homelessness in the Kalispell area. 34
The growth in the homeless population led to a political backlash against the Warming Center and a violent backlash against the homeless. In January 2023, the three commissioners of Flathead County released a letter decrying the “low barrier shelter” that purportedly caused “a dramatic increase in homeless individuals.” 35 According to the letter, homelessness “is a lifestyle choice for some” and “these wanderers are well networked and eager to share that Kalispell has ‘services’ to serve their lifestyle.” 36 To those at the Warming Center who work with the homeless, this is ridiculous. And if someone is about to freeze to death, where they are from shouldn’t matter. But the damage had been done. There was an epidemic of violence against low-income and homeless people—being pelted by paintball guns, being doused in water during the cold, deliberately run over, and beaten so badly they wind up with broken bones and, in the case of a 60-year-old man, dead. 37
Rather than use procedures in the law for allegedly problem properties, the City Council made up a process with no constitutional protections to revoke the Warming Center’s permit.
The City Council answered the County’s call to make life more difficult for the homeless. In 2023, the City Council passed ordinances banning the homeless from city parks and forbade motorists from giving money and food to panhandlers. 38 But by spring 2024, the city decided to destroy the Warming Center by revoking its permit.
There is a process in the Kalispell code for dealing with problem properties. The city could issue citations for violations. 39 But the City has never alleged that the Warming Center violated Kalispell law or its permit. There is also a process for dealing with nuisance properties. The city could go to court to try to prove that the Warming Center is harming the neighborhood. 40 But the city didn’t use either of these actual, existing procedures.
There is no procedure for doing what the city wanted to do—revoke a conditional-use permit. There is no procedure because CUPs aren’t supposed to be revocable. Kalispell law says that, once granted, a CUP “run[s] with” the land, meaning it is a perpetual right that attaches to the property itself. 41 There are over 200 CUPs in Kalispell. 42 Many are for apartment buildings. The city has never revoked a CUP before.
The city realized that it had to make up a procedure to revoke the Warming Center’s CUP because no legal authority to do so exists anywhere in the law. In April 2024, the City Council held a meeting to begin the process of revoking the Warming Center’s permit. A recorded conversation between Councilmember Chad Graham and City Manager Doug Russell indicated their belief that the Warming Center’s permit was “fair game” because permits are a matter of the City Council’s “grace.” 43 This is a basic legal error. Granting a permit is a matter of grace under Kalispell law, but once granted, they become a vested property right that runs with the land. Again, they are not supposed to be revocable. 44
The City Council next held “working sessions” to address revocation on May 13 and May 28, 2024. A majority of public comments at the first meeting favored the Warming Center. 45 For the second meeting, the ratio was 13-3, and the Mayor cut off people commenting in favor of the Warming Center to elicit negative comments. 46 Following these meetings, the City Attorney sent the Warming Center a letter on May 31, 2024, claiming the Warming Center hadn’t been accurate in its 2020 permit application. 47 The City Council seemed to believe that it could revoke the permit if it could identify incorrect information in the permit application. Notably, the May 31, 2024, letter made general allegations of problems associated with the Warming Center, but didn’t provide specific information. 48 When the Warming Center asked for specific evidence, the city didn’t respond. 49
The only thing resembling evidence was a set of charts the city created purporting to show that the Warming Center caused increased police calls. 50 But these charts, even if the underlying data are correct, which the Warming Center can’t confirm, are misleading. The Warming Center is relatively new. It didn’t exist in its current location in 2018–20. So the City could not make charts comparing police calls within the vicinity of the Warming Center when it didn’t exist.
But this ignores other relevant factors, such as the increase in population, rent, and homelessness across Montana. Even taking the data at face value, what does it tell us? If we make an apples-to-apples comparison to another homeless shelter in Kalispell with a similar capacity (Samaritan House 51 ), we find the Warming Center is unremarkable. If we compare Samaritan House, where homeless people sleep year-round, with the months when the Warming Center is open for sleeping, the police call data are comparable.
Police calls 2021–2023 (half-mile radius) | Warming Center | Samaritan House |
Trespass | 43 | 40 |
Disorderly conduct | 28 | 25 |
Welfare check | 46 | 76 |
Mischief | 9 | 21 |
If the city’s theory is correct, then destroying other social service providers would also result in fewer police calls. Yet the City Council isn’t taking steps to shut them down them. The other social service providers have been around for a long time. They aren’t the new kid on the block. So the Warming Center has become the scapegoat.
After a July 16, 2024, meeting, the City Council adjourned for 60 days to give the Warming Center and community members 60 days to come up with a strategy for addressing issues homeless people were causing around town. 52 After the first meeting on August 19, 2024, the community members circulated a letter making demands that were legally and financially impossible, such as hiring a private security force to police the homeless around Kalispell. 53 When the Warming Center responded to these demands in writing on August 22, 2024, saying that the demands were infeasible but the Warming Center still wanted to discuss realistic solutions that involved every stakeholder playing a role, the facilitators canceled the second meeting. 54 The Warming Center wrote the Mayor and the City Council on August 29, 2024, making clear that the Warming Center did not cancel the meeting and was still happy to talk. 55
The City Council nevertheless moved forward with the revocation on September 16, 2024, stripping the Warming Center of its vested right to continue its mission.
That decision will make all the problems with public homelessness worse. People will have to go back to sleeping outside. As the evidence shows, there will be more emergency room visits, maybe even death from hypothermia. 56 More ambulance and police calls. 57 Physical and mental health will deteriorate. 58 Substance abuse issues will worsen. 59 Destroying the Warming Center is cruel and shortsighted.
The Constitutional Claims
The United States Supreme Court has long recognized that property owners have important vested rights when they commence a lawful use of land. The government cannot order you to stop living in your home or shut down a business that is up and running. The Montana Supreme Court has likewise recognized that the state constitution offers vital protections for property owners. These rights are based on the commonsense idea that property owners have a strong expectation in being allowed to continue using their property after they invest hundreds of thousands or even millions of dollars to begin a lawful use. People similarly have a strong constitutional interest in pursuing lawful occupations like serving the homeless.
The City of Kalispell’s revocation of the Warming Center’s CUP violates the U.S. and Montana Constitutions in the following ways:
Procedural Due Process: Procedural due process requires the government to give you an appropriate opportunity to be heard before depriving you of life, liberty, or property. The procedures must be proportionate to the interest at stake and designed to minimize the likelihood of an erroneous or unjustified deprivation. A quick hearing before a traffic judge is sufficient for a speeding ticket, but a lot of procedural protections are necessary if someone is facing the death penalty.
Here, the City Council rejected using procedures that do exist in favor of others the city made up on the fly. These made-up procedures had an unconstitutional risk of an erroneous decision. The City Council itself acted as accuser, prosecutor, judge, witness, and jury. None of the witnesses were sworn and there was no cross-examination. When the stakes are this high, the Constitution requires a process with a neutral decisionmaker and basic rules to ensure that facts are correct.
Equal Protection: The city’s destruction of the Warming Center’s right to exist also violates equal protection. Equal protection is the familiar idea that the government must treat similar people or groups the same. In the zoning context, the U.S. Supreme Court ruled in a famous case called City of Cleburne v. Cleburne Living Center that the Equal Protection Clause forbade the government from manipulating its CUP process to stop a group home for the mentally handicapped. In 2021, the Institute for Justice used Cleburne to win a major victory against North Wilkesboro, North Carolina’s similar CUP manipulation to stop construction of a homeless shelter. In striking down the city’s action, the court reaffirmed that cities cannot use CUP ordinances to fence out disfavored groups, including the homeless: “While homeless individuals face many challenges, attaining equal protection of the law under the Constitution ought not be one of them.” 60
This reasoning applies to Kalispell as well. The city would never contemplate shutting down another business or nonprofit in Kalispell using the deficient procedures and flimsy evidence it used to take away the Warming Center’s CUP. In a normal case, if the city believed a property owner were violating the law, it would issue citations and give the property owner an opportunity to defend itself. Or the city could bring a nuisance suit to stop conduct on the property that was having an impermissible effect on the public. The city chose not to treat the Warming Center like other property owners in Kalispell and in doing so to mistreated a disfavored group—the homeless.
The city’s campaign against the homeless also implicates the Montana Constitution’s unique equal-protection provision. The Individual Dignity clause forbids discrimination on the basis of “social origin or condition,” which the Montana Supreme Court has held to refer to economic status. The city’s effort to drive homeless Kalispell residents out of the city and into the shadows by shutting down the Warming Center, one of the few places they are welcome, is a form of discrimination based on economic status.
Substantive Due Process: The U.S. and Montana Constitutions also protect the Warming Center’s right to use its property to help those in desperate need. People all over the world since ancient times—as well as Americans throughout our history—have used private property to shelter the poor and those facing danger, often making the best of trying circumstances. The nativity story in the book of Luke describes Jesus being placed in a manger—a trough for feeding animals in a stable—because “there was no room at the inn.” During WWII until their tragic discovery, Anne Frank and her family, along with four other Jewish refugees, hid from Nazi persecution in the Achterhuis (“back house” in Dutch) in a building owned by the company her father had worked for. Closer to home, the Underground Railroad was a network of private properties such as homes, farms, and churches that abolitionists used to shelter escaped slaves fleeing north.
The Warming Center is part of this long tradition. It was formed and bought its property at 889 North Meridian for the specific purpose of sheltering the homeless during frigid Montana winters. The lethality of Montana winters is so obvious that a federal court of appeals has ruled that the police violated a man’s rights when they took away his keys and watched him walk off into the Montana night in a tee shirt, later freezing to death. The City of Kalispell is effectively doing the same thing by shutting down the Warming Center on the eve of its winter season.
The U.S. Supreme Court has said that our liberties are fundamental when they are deeply and objectively rooted in history and tradition. The noncommercial use of private property to shelter those in life-threatening peril is just such a fundamental right. The Montana Supreme Court also treats “inalienable rights” as fundamental, including express state constitutional rights to private property and seeking safety.
The Litigation Team
The litigation team consists of Senior Attorney Jeff Rowes, Attorney Christie Mason Hebert, and Litigation Fellow Matt Liles. The lawsuit is filed in the United States Federal District Court for Montana.
About the Institute for Justice
This lawsuit is part of the Institute for Justice’s Zoning Justice Project, which seeks to protect the rights of property owners and nonprofit organizations against unconstitutional zoning regulations that restrict their ability to serve their communities. IJ has a long history of defending individuals and organizations across the country who use their property to help those in need, winning similar cases that challenge government overreach. As part of that, IJ believes that individuals and organizations can offer private solutions to public problems. From fighting for homeless shelters to supporting small businesses, IJ has consistently secured victories that uphold Americans’ rights to use their property for charitable and humanitarian purposes.