The answer to a lawsuit filed against the Town of North Wilkesboro and its zoning board of adjustment defends the denial of a permit allowing the Catherine H. Barber Homeless Shelter to operate in a building at 106 Elkin Highway.

The answer maintains that “competent and substantial evidence” support the zoning board’s findings of fact and decision to deny the conditional use permit. The suit was filed Oct. 12 and the answer on Nov. 30, both in U.S. District Court in Statesville.

The answer asks that a judge dismiss the suit and denies that Catherine H. Barber Memorial Shelter Inc. (the plaintiff) was injured or damaged by any town policy, practice or procedure.

The suit said the zoning board’s Aug. 29 decision after a quasi-judicial public hearing on the conditional use permit request was unconstitutional, irrational, arbitrary and capricious. It said the plaintiff’s civil rights were violated and sought a court order requiring issuance of the permit and requiring the town and zoning board to let the Barber homeless shelter operate there.

The Institute for Justice, a nonprofit legal firm based in Arlington, Va., filed the suit at no charge on behalf of the Barber shelter board. Diana Simpson, Institute of Justice lead attorney in the case, said the suit is in the discovery phase and should remain so for about six months. This is the fact-finding portion for both sides.

Daniel Johnson, interim town attorney, and Patrick H. Flanagan, a Charlotte-based attorney, represent the defendants and filed the answer.

The answer said the zoning board’s actions, practices and policies attacked in the suit “are necessary for the orderly, safe and efficient operation of” town government. It said the zoning ordinance “represents a valid exercise of the police power” of the town and denial of the conditional use permit was a legitimate exercise of municipal government.

Dr. Christopher E. Roberts and his wife, Timberli W. Roberts, deeded the 10,019-square-foot, two-story building and .23 of an acre at 106 Elkin Highway (N.C. 268 East) to the Barber shelter board as a donation on Dec. 18. Roberts’ dental practice, Brushy Mountain Dental, occupied the building until it moved to West Park.

The zoning board ruled Aug. 29 that the Roberts property failed to meet three of six requirements for a conditional use permit. The board found that it would endanger public health by being along a busy highway, that it would lower values of adjoining property and that it wouldn’t be in harmony with the nearby commercial area.

The suit said concern about the site being near a busy highway is irrational since the zoning ordinance only allows homeless shelters on property zoned highway business district, which means along highways. It said the zoning board had never before denied a conditional use permit in a highway business district because it was next to a major road.

The suit said claiming the homeless shelter would lower neighboring property values “was based on pure speculation unsupported by data and an expert interpretation of that data.” It said the board had never before denied a conditional use permit in a highway business district due to being out of harmony with nearby commercial entities.

“There is not a ‘harmony exception’ to the Constitution’s protection of private property,” said Simpson.

“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,” said Simpson.

Zoning board chair Lisa Casey said during the Aug. 29 public hearing, “I think the issue here is that it meets the zoning requirements, but that doesn’t mean it belongs there.”

The suit said the Roberts building accommodates the shelter’s expansion from a 10-bed to a 20-bed facility and meets other needs, has necessary utilities and is within a five-minute walk from fast food and basic retail goods. It said the building is centrally located, well lit, near sidewalks, near a major intersection (N.C. 268 and N.C. 18) and along bus routes.

The building meets the zoning ordinance requirement of having access to a public sidewalk and not being within 250 feet of property zoned or used for residential purposes.

More than a year ago, the zoning board denied the shelter board’s application for a conditional use permit and two zoning variances for vacant property on N.C. 18 North in the Fairplains community. The shelter board ran into opposition from people living and/or owning property nearby. The shelter left its longtime prior location nearby on N.C. 18 North because it needed more space.

The shelter was without a home for about a week about a year ago before reopening in a temporary location — the second floor of the Crossfire United Methodist Church worship center on N.C. 115 near North Wilkesboro. It has remained there during the search for a long-term location.

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