Flathead Warming Center attorney warns permit revocation could lead to lawsuit

An attorney for the Flathead Warming Center has warned Kalispell City Council that revoking the homeless shelter's permit would violate state and federal law, and result in litigation.   

Michelle T. Weinberg, hired by the Warming Center in June, asserted in a July 12 letter to Council that the shelter has not violated any of the nine conditions included in its conditional use permit, which was first approved in 2020 and amended in 2022. 

“As such, to revoke [the Warming Center’s] 2020 and 2022 [conditional use permits] years after the fact in an attempt to retroactively deny its approval would constitute an arbitrary, capricious, unreasonable and unlawful act contrary to the powers granted to this Council by the Montana Legislature,” the letter read.  

City officials began raising the specter of revoking the low-barrier North Meridian Road shelter’s permit in the spring, citing complaints from nearby residents and businesses. Those allegations included a spike in homeless people in the surrounding neighborhood, an increase in law enforcement service calls and a failure of shelter leaders to be responsive to neighbors’ concerns.  

In a series of meetings in late spring and early summer, Council reviewed the allegations, took public comments — both for and against the shelter — and analyzed emergency call data. Councilor Chad Graham, who led the effort, charged that shelter officials misled officials in their application materials for the permit. 

The effort culminated with a formal hearing on July 15-16. Council ultimately opted to delay action on the permit, giving shelter leaders 60 days to work out disputes with its neighbors. Council is expected to revisit the vote in September.  

BUT WEINBURG told the Daily Inter Lake that revoking the Warming Center’s permit would violate its procedural and substantive due process under the Fifth Amendment because Council made “vague and conclusory allegations” at the Warming Center for being untruthful and for threatening the Warming Center with unreasonable action.   

Weinberg said the Warming Center would be entitled to compensation should its permit be revoked. She indicated that the shelter has spent over $800,000 on the facility since receiving its permit.  

Weinberg asserted in the letter that the city cannot prove that the Warming Center increased homelessness in the surrounding area or that increased loitering, law enforcement calls and other criminal activity is attributable to the shelter.  

She also told the Inter Lake she was skeptical that city officials could use public comment at Council meetings to support revocation. 

“Not in this kind of situation when there’s a vested right on the line,” she said.  

Weinberg said that because the Warming Center has met the conditions listed in the permit, if the dispute was brought to court, the court would find the comments irrelevant.  

For the court to hear public concerns, the testimony would have to be sworn and subject to cross examination, Weinburg said.  

“To me, it’s pretty black and white, and I feel like the court would likely agree with me,” she said. 

A letter sent by City Attorney Johnna Preble to Warming Center staff in May alerting them to the possibility of revocation referenced call data analysis performed by city officials. That analysis showed a 90% increase in calls for trespass, disorderly conduct, welfare checks and criminal mischief in a half-mile radius around the shelter since it opened.  

Kalispell saw a 50% increase in those types of calls citywide during the same period, according to the data presented.  

Weinberg described the analysis as “intentional manipulation” to blame the Warming Center for problems stemming from the Flathead Valley’s population boom and housing crunch. 

Attempts to reach Preble or City Manager Doug Russell for comment prior to the Inter Lake’s print deadline were unsuccessful.  

Weinberg argued the concerns raised earlier this year should have been addressed during the permit review process. She said that city planning officials should have alerted Council to any issues and worked with the applicant to “clear up any confusion ... But that didn’t happen.” 

“They knew at the time what population the homeless shelter was intended to serve,” Weinberg said. “Nobody could have predicted that the housing crisis, Covid and the huge increase in homelessness that had occurred all across the country, and in Montana in particular. So it's ludicrous, to be honest, to pin that on that on my client.”  

COUNCILOR RYAN Hunter said he believes that officials should have begun working with the shelter on neighborhood concerns earlier.  

“I do think that should have been step one in the process rather than going through months of acrimony to get to that point,” he said. 

Like Weinberg, he questioned whether Council could revoke the Warming Center’s permit. 

“I am very skeptical about the city’s legal ability to revoke or ban the conditional use permit over issues, particularly over issues that are not actual conditions on the permit,” he said.  

But Councilor Sam Nunnally said that the city has authority to revoke the permit as it does any other conditional use permit. Citing the dispute with the Warming Center, he said he could not outline the municipality’s process for revoking a conditional use permit.  

Nunnally acknowledged that it is “something that doesn’t happen very often and hasn’t happened while I’ve been [on Council].” 

Hunter said he hoped that shelter officials and neighbors would find common ground prior to the dispute returning to Council in September. He argued that City Hall has a role to play in an eventual solution.  

“This is a community wide crisis, and it’s not going to be solved just by the nonprofits and community members,” he said. “The government has resources and authority that are necessary to tackle such a complex problem.”  

Nunnally, though, said the city should take a hands-off approach to talks between the shelter and neighbors. 

“We don’t want to direct anything one way or another, because it’s going to be a decision that ultimately will come back to us,” Nunnally said. “It needs to be the stakeholders and the Warming Center coming up with that option.” 

Warming Center Executive Director Tonya Horn said she hoped the city will participate in finding a solution for the Warming Center. Like Hunter, she said she would have preferred city officials began discussing the problems earlier on.  

"This process went from zero to [possible] revocation, just like that, without any dialogue,” she said. 

While the Warming Center is challenging Council’s authority to revoke its permit, Horn said she understands the importance of communicating and collaborating with the community. 

“I really do hope that in the end, that we’ll have everyone at the table for collaboration, and that includes the city,” said Horn, who also plans to include homeless residents in the discussions. 

Horn said that she expects a working group will be formed to address the situation with publicized meetings.  

“I think that neighbors need to feel like they’re heard,” said Horn. “And so, I hope through this process of good communication ... that neighbors will feel more heard, because we do care.” 

Weinberg said she hoped that city officials will use the 60-day period to drop the revocation effort. 

“I’m hoping that reasonable minds will prevail here, and they will just take this off the table,” she said.  

Jack Underhill can be reached at junderhill@dailyinterlake.com or 758-4407.