A civil rights lawsuit filed Tuesday seeks a court order requiring the Town of North Wilkesboro and its zoning board of adjustment to allow the Catherine Barber Homeless Shelter to operate in a building at 106 Elkin Highway (N.C. 268 East).
The suit says the zoning board’s Aug. 29 decision denying a conditional use permit needed for the homeless shelter to operate at 106 Elkin Highway was unconstitutional, irrational, arbitrary and capricious. It seeks a court order requiring issuance of the permit.
Arlington, Va.–based Institute for Justice, a nonprofit legal firm representing the Barber shelter board at no charge, filed the suit against the town and its zoning board in U.S. District Court in Statesville. The zoning board voted to deny the Barber shelter board’s application for the permit after holding a quasi-judicial hearing on the request that night.
Dr. Christopher E. Roberts and his wife, Timberli W. Roberts, own the building at 106 Elkin Highway, which is just east of the N.C. 268/N.C. 18 intersection and just west of the N.C. 268/Flint Hill Road intersection. His dental practice, Brushy Mountain Dental, was there before it was moved to West Park Medical Park, North Wilkesboro. The couple offered the 3,224-square-foot, two-story building for free to the shelter board.
A press release issued by Town Manager Wilson Hooper Thursday said Mayor Robert Johnson and Board of Adjustment Chairman Lisa Casey received a summons and complaint for the suit Wednesday. Hooper’s release said town staff and Town Attorney Daniel Johnson are reviewing specific claims made by the plaintiffs and formulating next steps. It said town officials will make limited additional public comments while the matter is in the courts.
The zoning board ruled 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 because it is along a busy highway, it would lower values of adjoining property and it wouldn’t be in harmony with the nearby commercial area.
The suit said concern about the Roberts site being near a busy road is irrational since the town zoning ordinance allows homeless shelters only on property zoned highway business district, an area “along designated highways and thoroughfares.” It said the board has never before denied a conditional use permit in a highway business district because it was next to a major road.
The suit said the board’s claim that the homeless shelter would lower neighboring property values “was based on pure speculation unsupported by data and an expert interpretation of that data.” It also said the board has never before denied a conditional use permit within a highway business district on the grounds that the proposed use wasn’t in harmony with surrounding commercial entities.
“There is not a ‘harmony exception’ to the Constitution’s protection of private property,” said attorney Diana Simpson from the Institute of Justice. Simpson, along with attorneys Alexa Gervasi and Jeff Rowes from the Institute of Justice, represent the shelter board.
“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.
“Allowing the (zoning) 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,” said Gervasi.
“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 Rowes.
Elizabeth Huffman, shelter board president, said, “All we want to do is serve our clients and our community. It isn’t right that the town is making up reasons to keep us out.”
The suit said the Roberts building accommodates the shelter’s expansion from a 10-bed to a 20-bed facility, has necessary utilities and other infrastructure and is within a five-minute walk from businesses offering inexpensive fast food and basic retail goods. It said the building is centrally located, near a major intersection, along bus routes, across from a streetlight and reachable via sidewalks.
In addition to only allowing homeless shelters on property zoned highway business, the zoning ordinance prohibits them from being within 250 feet of property zoned or used for residential purposes and requires that they have access to a public sidewalk. The zoning board found that the Roberts property meets these requirements.
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.”
After three people spoke in favor and four against allowing the homeless shelter on the Roberts property, zoning board member Otis Church said a shelter there would materially endanger public health or safety. “You step out at 6:30 in the morning, and all that traffic and everything—it’s dangerous, and they step right out into the main street (N.C. 268),” he said. “The proximity to the highway makes it unsafe to use.”
Martha Nichols, a zoning board member, said the shelter wouldn’t be compatible with neighboring property. Church agreed. Nichols added, “The traffic back and forth, and these people coming in in the dark and going out in the dark in the wintertime” would be a safety issue due to the highway.
Church said a homeless shelter at 106 Elkin Highway would devalue adjoining property on the same street. When Church made the motion to deny the permit request, he cited safety concerns related to the site’s proximity to N.C. 18 and N.C. 268. Nichols seconded the motion and Casey and Mike Staley concurred.
The conditional use permit is required under an amendment to the town’s zoning ordinance adopted by North Wilkesboro commissioners on May 8, 2018. The Institute of Justice said minutes from that meeting indicate the commissioners adopted this and other requirements for homeless shelters “after getting wind that a nonprofit (Hospitality House) from neighboring Watauga County was considering building a shelter in North Wilkesboro…. The shelter in Watauga County abandoned its plan to come to North Wilkesboro.”
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 wanted to build a facility there, but ran into opposition from people living and/or owning property nearby. The shelter left its prior location 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.