Catherine H. Barber Mem'l Shelter, Inc. v. Town of N. Wilkesboro Bd. of Adjustment of the Town of N. Wilkesboro
| Decision Date | 20 December 2021 |
| Docket Number | CIVIL ACTION NO. 5:20-CV-00163-KDB-DCK |
| Citation | 576 F.Supp.3d 318 |
| Parties | CATHERINE H. BARBER MEMORIAL SHELTER, INC., Plaintiff, v. TOWN OF NORTH WILKESBORO BOARD OF ADJUSTMENT OF the TOWN OF NORTH WILKESBORO, Defendant. |
| Court | U.S. District Court — Western District of North Carolina |
Alexa Gervasi, Pro Hac Vice, Diana K. Simpson, Pro Hac Vice, Institute for Justice, Arlington, VA, Jeffrey T. Rowes, Pro Hac Vice, Institute for Justice, Austin, TX, David G. Guidry, Charlotte, NC, for Plaintiff.
Daniel Stuart Johnson, Vannoy, Colvard, Triplett & Vannoy PLLC, North Wilkesboro, NC, Patrick Houghton Flanagan, Cranfill, Sumner & Hartzog, L.L.P., Charlotte, NC, for Defendant.
THIS MATTER is before the Court on Plaintiff Catherine H. Barber Memorial Shelter, Inc.’s ("Shelter") Motion for Summary Judgment (Doc. No. 34) and on Defendants’ Motion for Summary Judgment (Doc. No. 32). The Court has carefully reviewed the motion and considered the parties’ briefs and exhibits. The Court finds that under North Carolina law the Shelter was entitled to issuance of the conditional use permit, and the Board's denial of the permit was not supported by substantial competent evidence, which is required to deny it. Alternatively, the Court finds that the conditional use permit requirement as applied to the Shelter violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution as there is no rational basis for differentiating the Shelter from other uses that do not require a conditional use permit. For these reasons and the others discussed below, the Court will GRANT Plaintiff's Motion for Summary Judgment (Doc. No. 34); DENY Defendant's Motion for Summary Judgment (Doc. No. 32) and enter Summary Judgment in favor of Plaintiff.
The Catherine H. Barber Memorial Shelter, the only homeless shelter in Wilkes County, North Carolina, opened in 1987. (Doc. No 35-18). From 1987 until 2019, the Shelter operated out of a home in North Wilkesboro located at 86 Sparta Road, but that residence was not always large enough to serve the Shelter's needs. Id. Therefore, by the end of 2018, the Shelter started looking for a new location. Id.
When it initially opened, the local zoning ordinance didn't regulate homeless shelters. (Compl., ¶ 52). However, in 2018, the Town of North Wilkesboro ("Town") added a homeless-shelter provision to its local zoning ordinance. Id. at ¶ 53. In the provision, a homeless shelter is defined as "a short- or long-term shelter for persons who lack a fixed, regular and adequate nighttime residence." North Wilkesboro Zoning Ordinance § 3.2(B)(2)(c) (the "Zoning Ordinance"). The Ordinance sets strict limitations on where homeless shelters can be located, requiring homeless shelters to be in the highway-business district; be at least 250 feet away from residences, parks, and schools; adjoin public sidewalks; provide supervision; have at least 50 heated square feet per client; be in harmony with the area; and obtain a conditional use permit ("CUP"). See Zoning Ordinance §§ 11.4-11, 6.7.1.
The Town alleges that it determined which proposed land uses would require a CUP based on a legislative process that includes public input and examined the proposed land use's potential impact on the health, safety, welfare of the community, adjacent land uses, and the Town's comprehensive land use plan adopted in 2018. (Doc. No. 33-2). There are 128 uses in the highway-business district that only require a permit from Town staff, who have no discretion to deny it if the use complies with the zoning code. See Zoning Ordinance § 6.7 (table of uses). Only six uses other than a homeless shelter require a CUP (a car lot, race way, waste transfer station, cell-phone tower, nightclub, and bed-and-breakfast). Zoning Ordinance at § 6.7. Homeless shelters are the only non-commercial use requiring a CUP and are also the only use providing overnight shelter to those in need that requires a CUP. For example, no CUP is necessary for addiction-rehab facilities, medical-rehab facilities, long-term care and nursing homes, emergency shelters, group homes, lodges, or hospitals. Id.
There are six criteria that the Town considers when deciding whether to grant a CUP: public safety; zoning compliance; no substantial injury to property values; area harmony; water and sewer availability; and conformity with the Town's general plan. See Zoning Ordinance § 3.4. To obtain a conditional use permit, the applicant applies with a fee, a completed form, explanation of the proposed use of the property, site plan, documentation of the facts supporting the application, and a list of neighboring property owners. See Zoning Ordinance § 3.4(C). The applicant bears the burden of producing sufficient evidence at the hearing to demonstrate that the desired use complies with the Town's Ordinance. See Id.
In 2019, the Shelter applied for a variance from the Town of North Wilkesboro Planning Department to relocate to 108 Sparta Rd., where it planned to build a permanent facility. (Compl., ¶¶33, 34). The Board denied Plaintiff's request for a variance because the location was closer than 250 feet to a residence, in violation of the Zoning Ordinance, and because the location did not have a sidewalk, which would have required the Shelter's residents to walk in the highway. (Doc. No. 33-2). The Shelter did not appeal the Board's decision. (Compl., ¶35). In need of a new residence, the Crossfire United Methodist Church offered its second floor as a temporary location (Doc. No. 35-18). After a quick renovation, the Shelter moved in October 2019 (Doc. No. 35-20). In moving to Crossfire, the Shelter did not need to seek the Town's zoning approval because Crossfire is outside of the Town (Doc. No 35-24 Ex. 3).
In 2020, dentist Christopher Roberts and his wife Timberli donated the property at 106 Elkin Highway in North Wilkesboro, their former dental office, to the Shelter (Doc. No 35-20). According to the Shelter, the property is an ideal location and meets every requirement of the homeless-shelter ordinance. (Doc. No 35-20). In July 2020, the Shelter filed a CUP application (Doc. No 35-8) ("CUP Application") to move to 106 Elkin.
On August 26, 2020, the North Wilkesboro Board of Adjustment held a quasi-judicial hearing to discuss the Shelter's CUP application (Doc. No. 35-9). The Town's planning director testified that the application met all zoning requirements (Doc. No. 35-10). Carmen Daecher, then a Shelter board member and a traffic engineer, guided the Board through the Shelter's application. (Doc. No. 35-9 at 3). He explained the Shelter's operations, its plans to renovate 106 Elkin, and why the Shelter believed the location was ideal. The Shelter operates from 6:30pm – 6:30am and usually serves about 10 individuals. 106 Elkin Highway is centrally located to and within walking distance of inexpensive restaurants and nearby businesses and services the Barber Shelter's clients could use, particularly with the sidewalks. He also offered testimony from Dr. Alan Rice, the pastor of Crossfire United Methodist Church, and Derek Wyatt, the night manager at the Barber Shelter. Id. at. 3–5. Dr. Rice testified that he had not received a single complaint from neighbors and had no troubles with loitering or trash since the Shelter arrived. Id. at 5–6. And Mr. Wyatt testified about how the Shelter provides its clients breakfast and transportation each morning and how local police regularly bring people to the Shelter. Id. at 7–8.
In response, neighboring property owners or renters John Battle, Yvette Bushard, James Brown, and Scott Nafe testified against the CUP application. (Doc. No. 26-1 at 48). John Battle testified that the proposed location for the Shelter was one of the busiest commercial locations in North Wilkesboro and that the proximity of the sidewalk in front of the Shelter to the highway could endanger the safety of the homeless people who would be using it primarily in the evening or early in the morning. (Doc. No. 26-1 p 50). Mr. Battle testified that occupants of the Shelter walking around early in the morning or late in the evenings created a danger as customers pulling in and out of the nearby parking lots would have difficulty seeing them (Doc. No 26-1 at 50). Mr. Brown testified that having a homeless population that relies on walking and bicycles would be hazardous in such a highly congested area. (Doc. No. 26-1 at 57). While acknowledging that he believed "traffic would be one of the issues of public safety that may be of concern," (Doc. No. 26-1 at 26), Mr. Daecher offered evidence concerning the flow of traffic around the Shelter and stated that the traffic would be opposite to the demand for other businesses in the area. (Doc. No. 26-1 at 27-33).
The Board also heard testimony regarding the impact the proposed Shelter would have on the surrounding properties. (Doc. No. 26-1 at 37). Mr. Daecher testified that the proposed improvements that would be made to the exterior of the building could only add to the value of the neighboring properties, but he agreed that public perception indicated that the neighboring property owners were not supportive of the Shelter's presence. (Doc. No. 26-1 at 37). He summarized his view of the reality of the public's reaction as follows: Id. As with the "traffic" issues, the witnesses opposing the CUP testified regarding their concerns for property values and the safety of the area should the Shelter be permitted. Mr. Battle expressed his concerns that the Shelter would negatively impact the safety of surrounding businesses and renters and damage businesses by making their customers afraid to come to the area. (Doc. No. 26-1 at 48). Ms. Bushard testified that she was likewise concerned about her...
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