J. Justin Wilson
J. Justin Wilson · October 7, 2020

When the Catherine H. Barber Memorial Shelter applied for a zoning permit to open at a new facility in North Wilkesboro, its board of directors was confident that the town would grant the permit. After all, the building is in an ideal location, near businesses and public transit but far from residential areas, and it meets the town’s requirements for homeless shelters. They assumed they would get the permit and could then shift to renovating the space to meet their needs. But one thing they didn’t expect was the town Board of Adjustment to break its own rules—as well as state law and the Constitution—to find a reason to deny the permit.

Citing the shelter’s supposed lack of “harmony” with the community, among other reasons, on September 9, 2020, the Board of Adjustment rejected the shelter’s application. Now, with the help of the Institute for Justice, the Barber Shelter is fighting back. Today it filed a lawsuit to the challenge the Board’s denial and stand up for the shelter’s right to use private property for private charity.

“There is not a ‘harmony exception’ to the Constitution’s protection of private property,” said Diana Simpson, an attorney at the Institute for Justice, which represents the Barber Shelter. “The Supreme Court has made it clear that when the government limits people’s property rights, it must follow the rules and have a rational reason for imposing those limitations. The Town of North Wilkesboro and its Board of Adjustment could not point to a single good reason to reject the Barber Shelter, but they denied the permit anyway. From their actions, it is clear that they just don’t want a homeless shelter anywhere.”

The Catherine H. Barber Memorial Shelter opened its doors more than three decades ago. As the only shelter in all of Wilkes County, N.C., most clients are experiencing temporary homelessness due to acute economic distress, domestic abuse, or a family breakdown. Its goal is to transition people as quickly as possible to more long-term arrangements, working with local social services agencies to help people access resources and get back on their feet.

In search of new space, the Barber Shelter was relieved when a local dentist offered to donate his 3,000 square foot office building. It is in an ideal location—in the Highway Business district, just as the zoning code requires; its immediate neighbors are a mix of non-residential uses, such as a cell-phone store and gym; it is near public transit; and the state just built new sidewalks along the road. In other words, the property completely satisfies the town’s zoning requirements.

But that is not enough for the Town of North Wilkesboro, which has taken steps in recent years to remove people in need from visibility. Until 2018, shelters were allowed without a special permit. But after getting wind that a nonprofit from a neighboring county was considering building a shelter in North Wilkesboro, the town amended its zoning code to add specific requirements for homeless shelters, including that they obtain a conditional-use permit from the town’s Board of Adjustment.

The Barber Shelter’s conditional-use permit application objectively satisfied the zoning code’s homeless shelter ordinance. Even the Board of Adjustment agreed: “[T]he issue here is that it meets the zoning requirements, but that doesn’t mean it belongs there,” said Board of Adjustment Chair Lisa Casey. So the Board of Adjustment came up with irrational reasons to deny the permit. One such reason? The supposed danger of the proximity of the Barber Shelter to the road and sidewalks, despite the fact that the zoning code requires shelters be next to busy roads with sidewalks.

“All we want to do is serve our clients and our community,” said Barber Shelter Chair Elizabeth Huffman. “It isn’t right that the town is making up reasons to keep us out.”

The lawsuit asks the court to hold that the Barber Shelter’s constitutional rights are violated by the town requiring that homeless shelters obtain a conditional-use permit, even though similar uses, like drug rehabilitation facilities, don’t need one. It also argues that the Board of Adjustment violated the U.S. Constitution in denying the Barber Shelter a conditional-use permit based on irrational reasons not supported by evidence.

“The principles of this case affect Americans everywhere,” said IJ Attorney Alexa Gervasi. “Allowing the Board’s decision here to stand paves the way for zoning boards to invent irrational reasons to deny any applicant their permit, regardless of their proposed use.”

In recent years, the Institute for Justice has particularly focused on the abuse of zoning laws through excessive fines and fees to deny freedom and opportunity to those of modest means. This case expands on that work.

“In such difficult times, it is more important than ever that officials and courts respect the basic rights to equal protection and property ownership that have enabled so many to escape poverty and chart their own courses,” added IJ Senior Attorney Jeff Rowes.