Kalispell endangering vulnerable Montanans

Temperatures are dropping in the Flathead Valley. Nighttime temperatures are already well below freezing, meaning anyone caught outside with no shelter could face life-threatening conditions. This winter at least 300 Montanans will face that peril thanks to the Kalispell City Council, which recently closed the Flathead Warming Center — an essential emergency shelter in Kalispell.

Now, the shelter is fighting to keep its doors open.

On Sept. 16, city leaders rescinded the Warming Center’s conditional use permit, forcing it to close right before the start of winter. That revocation of the center’s permit not only endangers vulnerable Montanans — but it violates the Constitution and the city’s own laws.

Under the Constitution, if the government wants to take away property rights, it must do so in a court of law, or a hearing that looks and works like one. That means a neutral person like a judge must examine the evidence and decide based on the facts, not what will score the most political points. Additionally, Kalispell can’t treat the Warming Center differently from similar property owners. The U.S. Supreme Court has been clear that cities can’t use zoning laws to push disfavored groups — like the homeless individuals the Warming Center serves — out of town.

Kalispell’s own laws state that once the city grants a conditional use permit, it becomes part of the landowner’s property rights. These permits “run with the lot,” which means they’re a property right like any other. No one would invest in Kalispell if the city could revoke conditional use permits for whatever reason and with whatever process it wanted. And neither would the Warming Center’s community donors, who spent close to a million dollars to purchase and renovate their property.

That’s why the Flathead Warming Center has teamed up with the Institute for Justice to file a federal lawsuit against the city. The city’s action was wrong, unprecedented, and unconstitutional. There’s no doubt that cities should be able to address public problems like sharp rises in homelessness. But the City Council’s decision will make homelessness in Kalispell worse. The Warming Center keeps people who need shelter out of public spaces and off the streets. And more importantly, it saves lives.

Skyrocketing housing prices and a lack of public resources for mental health treatment are forcing more people in Kalispell into homelessness. In fact, half of the Warming Center’s guests last winter have lived in the Flathead Valley for more than 10 years. Tonya Horn and Luke Heffernan recognized this problem and the danger in sleeping outdoors in freezing cold, so they decided to address the problem by opening the Flathead Warming Center in 2019. Thanks to Tonya and Luke, along with their volunteers and donors, the homeless community in Kalispell has had a warm place to take refuge during brutal winter months.

For nearly four years, it seemed the city of Kalispell recognized that the Warming Center was performing an essential service. But as Kalispell experienced problems with homelessness in public spaces, the political winds changed. After years of supporting the Warming Center, city leaders began blaming the Center for any problems related to homelessness—regardless of the evidence. Doing so became a way to score political points.

The Warming Center was not breaking any laws. If it had, the city would’ve issued citations or filed a nuisance lawsuit. But Kalispell didn’t do any of that. What its City Council did instead was invent an illegal procedure to do something it has never done before: revoke the Warming Center’s permit.

On Oct. 25, the Flathead Warming Center and Institute for Justice will head to court to try to keep the Center’s doors open for the winter. The Center’s lawsuit seeks to vindicate Americans’ property rights everywhere. But for some Kalispell community members, our fight is even bigger. In the words of Tonya Horn, “The Warming Center may be the only thing standing between them and the deadly cold.”

Matt Liles is a litigation fellow at the Institute for Justice, which is a national nonprofit public interest law firm. The institute represents its clients, including the Warming Center, for free based on the generosity of more than 9,000 individual donors.