January 21, 2021

Imagine that you have a piece of property that you want to use. But first you need to get a permit from the town. You check off each code requirement, pull together your application with a professional site plan, and set off for a hearing. But there’s one last thing you didn’t account for: bureaucrats who don’t want you in town.

Sadly, this isn’t a hypothetical—it’s the injustice the Catherine H. Barber Memorial Shelter is facing in North Wilkesboro, North Carolina.

For more than 30 years, the Barber Shelter has provided a warm and safe place to sleep for people experiencing temporary homelessness. The Barber Shelter was looking for a new space when a retired local dentist generously offered to donate his office building. It is perfect: it is just the right size, it is in a great location for a shelter (nonresidential and near public transit), and it satisfies all the North Wilkesboro zoning code requirements.

But the town wasn’t pleased with the development. “The issue here is that it meets the zoning requirements, but that doesn’t mean it belongs there,” said the chair of the Board of Adjustment in denying the Barber Shelter’s permit. Because the shelter met every objective requirement, the board’s objections became more nebulous: It would lower neighboring property values and not be “harmonious” with its neighbors, which are typical businesses that serve people of modest means, like a cell phone store and a dollar store. 

But the Constitution doesn’t have a harmony exception. And it’s illegal for the government to use its zoning power to penalize or arbitrarily restrict the property rights of certain kinds of people or certain types of places. 

This case is much bigger than a modest shelter in a small town. Governments should not be able to veto productive, valuable uses of property without a very good reason. North Wilkesboro’s Board of Adjustment lacked any legitimate reason to deny the Barber Shelter its sought space. In doing so, the board violated both the U.S. Constitution and North Carolina property law. The Barber Shelter has teamed up with IJ to defend its right to serve the needy at this location and to ensure that all property owners—in North Carolina and beyond—are treated equally.

Diana Simpson is an IJ attorney.

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