Victory in North Carolina! Federal Court Rejects Bogus Zoning Arguments That Kept Homeless Out in the Cold 

Diana Simpson
Diana Simpson  ·  April 1, 2022

A few days before Christmas, a small homeless shelter in northwestern North Carolina received the best present it could have imagined: a victory awarding it the right to open. The Catherine H. Barber Memorial Shelter, represented by IJ, won its lawsuit against the town of North Wilkesboro, which had invoked bogus reasons to stop the shelter from opening. A federal judge cut through the irrationality and declared the town’s actions unconstitutional. It is a momentous decision not just for the Barber Shelter but also for other property owners restrained by draconian zoning boards.

For more than 30 years, the Barber Shelter has provided a warm and safe space to sleep for people experiencing temporary homelessness. In 2020, the Barber Shelter was looking for a new space to serve the community when a local dentist generously offered to donate his office building. The building is perfect—it is in an ideal location for a shelter (nonresidential, near public transit, and near social services) and satisfies all the North Wilkesboro zoning requirements.  

There was a hitch, though: The town’s Board of Adjustment had to sign off by approving a conditional use permit. Instead, the Board invented reasons to deny the permit. For example, the Board fretted about sidewalk and traffic safety issues supposedly presented by the nearby major road. But the zoning code requires that homeless shelters have public sidewalks and be near major roads. Paradoxes like this pervaded the Board’s decision. Its reasoning meant that there was literally nowhere in town a homeless shelter could go.

The Barber Shelter teamed up with IJ to fight back and filed a federal lawsuit in October 2020. Following an intensive year of discovery, the parties briefed the issues and had oral argument in Charlotte, North Carolina. The wait for a decision was mercifully short—and it was a grand slam. The court engaged with the evidence, analyzed the arguments, and ultimately saw the Board’s tortured reasons for what they were: excuses to keep the county’s only homeless shelter out of town. In doing so, the court vehemently rejected the defendants’ pleas for deference: “The Board apparently believes—incorrectly—that it can say the magic words ‘traffic and safety’ and this Court will rubber stamp the classification no matter the facts,” wrote U.S. District Judge Kenneth D. Bell. The judge acknowledged that courts are often deferential to state zoning regulations but said “such deference cannot be an excuse for the Court to abdicate its duty to protect the constitutional rights of all people.” 

IJ has already put the decision to work, citing it in multiple briefs to convince judges in other cases that they can and should stand on the side of property rights. Zoning boards are ubiquitous throughout the country, and they regularly abuse their power. IJ will work to ensure that these boards abide by their constitutional limitations.  

As for the Barber Shelter, its victory is now final. The town declined to appeal the decision, and the Barber Shelter has its sights set on renovating its building to effectively serve the needy. And when the shelter opens later this year, IJ will be there to celebrate.

Diana Simpson is an IJ attorney.

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