North Carolina Right to Shelter

The Barber Shelter opened three decades ago to help Wilkes County residents in temporary crisis.

When Catherine Barber passed away in 1989, her family wanted to honor her memory. She always had a heart for helping others. She provided a home to children in need of one for many years, lovingly raising foster children along with her biological children. Wishing to continue this tradition, Catherine’s family decided to open a shelter to provide temporary housing for those in crisis situations.

The Catherine H. Barber Memorial Shelter opened its doors at a small house in North Wilkesboro and ran a ten-bed overnight shelter there for three decades. As the only shelter in all of Wilkes County, most clients are experiencing temporary homelessness due to acute economic distress, domestic abuse or a family breakdown. One of the shelter’s clients, for example, lost his job and then everything else, and was living in his car when it broke down. He found his way to the shelter, where he was able to stay until he found a job and a place to live. He’s now back on his feet.

The Barber Shelter’s goal is to transition people as quickly as possible to more long-term arrangements. The shelter is open from 6:30 p.m. until 6:30 a.m. every day, and there is a 14-night limit. It works closely with local social services agencies to help people get resources and stability. The shelter is a modest size, matching the small town of 4,500 people who make up North Wilkesboro. The shelter housed a total of 200 different people during 2018, averaging around 6 people per night. Some nights the shelter exceeds capacity and is forced to turn people away, but most nights it has empty beds. The shelter is run by an all-volunteer board of directors and pays two part-time staff to be present while the shelter is open.

The shelter has strict rules to ensure the safety of the clients, the staff, and the community. Those with serious criminal records are excluded. There is zero tolerance for violence and uncivil behavior. No drugs or alcohol are allowed. No loitering is permitted outside the shelter when it is closed during the day. Over its 30 years in North Wilkesboro, the shelter has maintained an exemplary record. In fact, as part of the zoning proceedings in this case, the board contacted the police about complaints over the past year—there were none.

When the Barber Shelter first opened, it did not need any special zoning clearances. But in 2018 the town amended its zoning code to add a specific set of rules for homeless shelters.[1] Now shelters must:

• be in the Highway Business district, which snakes through town along the major roads;
• be a certain distance from houses, schools and parks;
• have minimum square footage per overnight client; and
• have sidewalks in front.[2]

The new ordinance also requires shelters to get a conditional-use permit—a permission slip that the town’s Board of Adjustment votes on.

The shelter needed to move in October 2019 when it lost its lease at the home it had been renting since 1989. The shelter also wanted a larger space for those occasions when more than ten people needed shelter for the night. Generously, the Crossfire United Methodist Church offered its space as a temporary haven, and the shelter has operated there while looking for a permanent home.

In spring 2020, a dentist offered to donate his 3,000-square-foot office building to the Barber Shelter. This location is ideal because it satisfies all requirements of the zoning code for homeless shelters. The property is in the Highway Business district at the intersection of two major roads. It is the only building on the half-acre lot, and the immediate neighbors are a mix of non-residential uses, such as a health-foods store, small Pentecostal church, dollar store, gym, and billboards. The state just built new sidewalks along the road in front of the shelter. Public transit can be reached on foot in less than 5 minutes. And there are no houses, schools, or parks nearby. In other words, the zoning requirements are 100 percent satisfied.

But that is not enough for the town’s Board of Adjustment.

The town of North Wilkesboro does everything it can to exclude the homeless from an Ideal Location

The town of North Wilkesboro has spent years erecting barriers to homeless shelters. Shelters used to be allowed without the government’s permission. But, in 2018, when the town got wind that a nonprofit from neighboring Watauga County was considering building a shelter in North Wilkesboro, the town council went to work, and passed amendment to the zoning code that imposes specific requirements on homeless shelters, including a conditional-use permit.[3] After the city passed the amendment, the nonprofit abandoned its plan to come to North Wilkesboro.

This 2018 amendment has proved an equally effective barrier to the Barber Shelter. After the dentist offered to donate his building, the Barber Shelter applied for the conditional-use permit. It hired an architect and surveyor to create maps laying out the property, building, landscaping, and storm water drainage. The Barber Shelter’s application objectively satisfied the five criteria of the zoning code’s homeless shelter ordinance.[4] Even the Board of Adjustment agreed: “[T]he issue here is that it meets the zoning requirements,” Board of Adjustment Chair Lisa Casey acknowledged. “[B]ut that doesn’t mean it belongs there.”[5]

In other words, the Board had to grope for reasons to deny the permit, despite the fact that the shelter complied with the zoning code. These contortions resulted in irrational reasons for denying the permit.

• Traffic safety—the Board objected that the shelter would be next to a busy road and its clients would use the sidewalks. But the zoning code requires shelters to be next to busy roads and have public sidewalks.
• Property values—the Board objected that the shelter would substantially lower neighboring property values. But the Board had no evidence in support of this claim—it just made it up. Also, no homeless shelter raises neighboring property values. Many legitimate land uses that cater to low-income people won’t raise property values, and there is no requirement that they do.
• Harmony—the Board objected that the Shelter wouldn’t be harmonious with neighbors, such as a small Pentecostal church. But the church never objected to the shelter and there is no reason to assume it opposes helping the needy. And the other neighbors are typical businesses, such as a cellphone store and mirror factory. The town cannot rationally require a shelter to be in a business zone and then reject a permit application because the shelter is near businesses.

The gaping holes in the asserted reasons for denying the conditional-use permit[6] suggest that they aren’t the real reasons. The real reason seems to be that the town doesn’t want a shelter or, at least, not a shelter anywhere that town residents have to look at it or see the people who use it. That violates the U.S. Constitution and North Carolina property law.

Legal Claims

Governments should not be able to veto productive, valuable uses of property without a really good reason. The Board of Adjustment lacked any legitimate reason to deny the Barber Shelter its sought space. In doing so, the Board violated both the Constitution and North Carolina law, so the Barber Shelter is taking the dispute to court.

Equal Protection

The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution prevents governments from treating people differently from one another. The government may only treat similar people differently if it has a legitimate reason. Often, the asserted reasons fall apart on closer inspection and it becomes apparent that the real reason for a law or government decision is illegitimate and one the government tries to hide.

The U.S. Supreme Court has used this approach—asking whether there are legitimate reasons for a law and, if not, whether the only explanation is illegitimate—in a case about the intellectually disabled that has chilling parallels with what North Wilkesboro did to the Barber Shelter. In City of Cleburne v. Cleburne Living Center, Inc., a property owner sought to open a group home for the intellectually disabled but needed a conditional-use permit. The city refused to grant one, however, invoking six reasons ranging from its proximity to a school to its presence in a 500-year flood plain. The Supreme Court rejected these asserted arguments and found that real reason the city denied the permit was because it did not want the mentally handicapped to live there.

In North Wilkesboro, the town’s reasons for rejecting the conditional-use permit application are obvious pretexts for blocking the Barber Shelter from helping the unfortunate. For example, the Board of Adjustment denied the permit because the shelter would be on a busy road and the clients would use sidewalks. But the zoning code requires homeless shelters to be in the Highway Business district and to have sidewalks. Further, other similar uses in the Highway Business district do not need a conditional-use permit, such as hotels, motels, and temporary drug and alcohol rehabilitation facilities; all involve overnight stays and present the same use of sidewalks as shelters. Ultimately, zoning decisions must be based on concrete evidence of actual harms, which simply does not exist here.

North Carolina Zoning Law

In addition to the strong protections offered by the Equal Protection Clause and recognized by the U.S. Supreme Court in Cleburne, North Carolina state law provides robust protections for property owners. North Carolina requires decision makers to follow a particular standard in considering permits, and for good reason—conditional-use permits give the government veto power of productive use of property, a power that should be used only sparingly and with great care.

The Board of Adjustment completely disregarded this standard. It considered lay testimony about traffic and property values, and it utterly failed to weigh the evidence and determine whether the opponents’ evidence (such as it was) outweighed the Barber Shelter’s evidence. Beyond that, the Board of Adjustment’s concerns were clearly pretextual.

To vindicate the rights of the Barber Shelter for use private property to help those in need, the Institute for Justice has filed a lawsuit in federal court seeking to end the town’s attempt to use pretextual excuses to prevent a private property owner from using his property as he sees fit.

The Litigation Team

The case is being litigated by IJ Attorneys Diana Simpson and Alexa Gervasi and IJ Senior Attorney Jeff Rowes. They are assisted by David Guidry of Mainsail Lawyers as local counsel. IJ is a nonprofit that does not charge its clients for representation.

About the Institute for Justice

Founded in 1991, the Institute for Justice is the national law firm for liberty and the nation’s premier defender of private property rights. IJ litigates in the courts of law and in the court of public opinion to defend free speech, property rights, economic liberty, and educational choice. This includes IJ lawsuits defending the rights of homeowners against unconstitutional zoning ordinances, as in Wilmington, N.C., unconstitutional code enforcement practices, as in Pagedale, Mo., and eminent domain, as in National City, Calif., and the United States Supreme Court case Kelo v. City of New London.

[1] See Minutes of May 8, 2018 Regular Meeting, Mayor and Board of Commissioners of the Town of North Wilkesboro, https://www.north-wilkesboro.com/AgendaCenter/ViewFile/Minutes/_05082018-58.

[2] Zoning Ordinance §§ 6.7, 11.4-11.

[3] See Minutes of May 8, 2018 Regular Meeting, Mayor and Board of Commissioners of the Town of North Wilkesboro, https://www.north-wilkesboro.com/AgendaCenter/ViewFile/Minutes/_05082018-58.

[4] Zoning Ordinance § 11.4-11.

[5] Marty McGee, Conditional-use approval of homeless shelter site denied again, Wilkes Journal Patriot, Aug. 27, 2020, https://www.journalpatriot.com/news/conditional-use-approval-of-homeless-shelter-site-deniedagain/article_764ff652-e8bc-11ea-abfe-870e0d953337.html.

[6] Lisa Casey, Board of Adjustment Chair, Town of North Wilkesboro, to Catherine H. Barber Memorial Shelter, Re: Conditional Use Permit for 106 Elkin Highway, North Wilkesboro, NC 28659 (Sept. 9, 2020).