Flathead Warming Center files federal lawsuit against Kalispell

The Flathead Warming Center filed a federal lawsuit against the city of Kalispell Wednesday following the city’s revocation of the permit that allows it to operate. 

The complaint argues that the City Council’s decision to revoke the homeless shelter’s conditional use permit violated state and federal law by undergoing an unfair and politically charged revocation process that took away the shelter’s “vested right” to the property after Council authorized its permit in 2020. 

A nonprofit national law firm, the Institute for Justice, is representing the low-barrier North Meridian Road homeless shelter that was shut down following a 6-3 Council vote on Sep. 16. The lawsuit was filed in U.S. District Court of Montana in Missoula.  

An emergency order is also being sought asking that the court allow the Warming Center to remain operational while the lawsuit is pending. The aim is to get the shelter operational by Thursday, Oct. 10, according to those involved in the case. 

“The Warming Center hasn’t broken any laws. It never violated its conditional use permit, and so the city had to invent a new procedure just for the Warming Center that it has never used and will never consider using against anyone else, and that’s unconstitutional,” Jeff Rowes, a senior attorney at the Institute for Justice, said in an interview with the Inter Lake. “If the city wants to try to take something like that away, there has to be something like a judicial trial, not a political circus,” he said.  

Kalispell City Attorney Johnna Preble declined to comment on the lawsuit. 

Warming Center leadership and representatives gathered in front of the shelter on Wednesday morning alongside lawyers from the Institute for Justice to announce the lawsuit.  

“It’s going to get very cold,” said a teary-eyed Tonya Horn, executive director of the shelter. “We are worried about the loss of life and the loss of limb.”  

The shelter typically operates from October to April.  

“We will continue to defend the rights of those who need our services, and we will continue to defend our right to serve the people in need,” Horn said.   

Rowes called the case “unprecedented,” saying he has never seen another case in the United States where a government has taken the same action to a private property that Kalispell took on the Warming Center.  

The Institute for Justice won a federal court case involving a homeless shelter’s conditional use permit application in Wilkes County in North Carolina. The county in that instance initially denied the application, arguing that the shelter wouldn't be harmonious with the neighboring community.  

The Kalispell Council’s decision came after months of meetings and work sessions listening to public comment both for and against the Warming Center. Neighbors of the shelter cited safety concerns and complained of littering, loitering, public defecation among other disturbances by shelter guests.  

Councilors charged that the shelter reneged on promises made in its permit application, including its commitment to being a good neighbor and not increasing homelessness or criminal activity in the area.  

The lawsuit argues that the roadmap leading up to revocation lacked elements of a judicial process that would include sworn public comment, cross examination and documented evidence. Instead, Council created a process retroactively to shut down the Warming Center without the intention to apply the same scrutiny to other conditional use permits, according to the complaint.  

"There was no process under the city code or the city rules for revoking that permit. That’s because that permit was always meant to be permanent. And so, the city invented a whole brand-new process,” said Christie Hebert, an attorney from the Institute for Justice also representing the Warming Center. 

The property was purchased through a buy-sell agreement reliant on the assurance that a homeless shelter could operate there, according to both the litigators and Horn.  

According to Kalispell’s zoning, “the granting of the Conditional Use Permit is a matter of grace,” the suit says. The complaint argues that the city has no process for revoking such permits.  

An equal protection claim is also part of the lawsuit, arguing that the city is not treating entities that provide similar social services as the shelter in the same manner. Nor has the city treated the other 200-plus permits the same by attributing all police calls near those locations to the holders of those permits.  

“If they applied this universally, nobody’s property rights would be safe,” Rowes said.  

“There is no rational basis for the differential treatment to which the Warming Center has been subject,” the suit says. “Instead, the only plausible explanation is that the Warming Center has been singled out politically as a scapegoat for social and economic conditions it did not cause and could not have prevented.”  

The complaint also argues that anti-homeless sentiment was enflamed when the Flathead County commissioners released an open letter in January 2023 asking the community to stop aiding the “homeless lifestyle,” asking municipalities “to not permit or expand warming shelters that bring more of these homeless individuals to our community.”  

“There’s not a single public comment when the Warming Center increased its capacity,” Hebert said, adding that the letter’s release stoked violence against homeless individuals.  

The complaint argues that while the shelter has met all of its conditions, any permit violations can be appropriately addressed through a zoning administrator and the Board of Adjustment that is authorized to hear appeals.  

However, the lawsuit claims that the city could not take action against the shelter because it has not violated any Kalispell law.  

The Warming Center in the lawsuit is seeking $1 in damages for the violation of its constitutional rights. The nonprofit is representing the shelter free of charge.  

In addition to the Institute for Justice, which is based in Austin, Texas, the Warming Center is being represented by Crowley Fleck in Billings.  

Reporter Jack Underhill can be reached at junderhill@dailyinerlake.com and 406-758-4407.  

    Jeff Rowes, senior attorney at the Institute for Justice, speaks at a press conference at the Flathead Warming Center in Kalispell on Wednesday, Oct. 9, 2024. (Matt Baldwin/Daily Inter Lake)