Federal judge hears arguments over allowing the Flathead Warming Center to open this winter

MISSOULA – Lawyers for the Flathead Warming Center argued in federal court Friday to keep the overnight shelter open this winter while it sues over the revocation of its city-issued permit.

Citing neighborhood complaints, Kalispell City Council in September voted 6-3 to strip the North Meridian Road facility of its conditional use permit, which allows it to operate as a shelter. The effort was led by City Councilor Chad Graham, who argued that the shelter violated its permit by failing to live up to assertions made by the nonprofit’s leaders during the application process.  

Following the decision, the Warming Center — represented by the national nonprofit the Institute for Justice — sued the city in U.S. District Court in Missoula.  

Seeking an injunction, its attorneys argued before Judge Dana Christensen on Friday that keeping the shelter closed through the winter will inevitably lead to illness, injury and possibly death among Kalispell's homeless community. 

Todd Johnson, an emergency room physician at Logan Health Medical Center in Kalispell, testified that he expects to see an increase in exposure-type illnesses such as frostbite and hypothermia, as well as enflamed mental health issues from a lack of access to the social services the Warming Center provides. 

And Jennifer Ball, a social worker with the Kalispell office of the Montana State Public Defender, testified that closing the center could push the city’s homeless population into public spaces looking for shelter.  

She said that people in survival mode are more likely to commit crimes to stay warm or get food.   

Crime also factored into the city’s argument against allowing the facility to operate as an overnight shelter.  

Kalispell Police Chief Jordan Venezio testified that the Warming Center contributed to illegal activity along the North Meridian Road corridor. He told the court the shelter had an adverse effect on the neighboring community by attracting homeless people, some of whom are involved in criminal activity.  

Venezio also detailed how an officer tore a pectoral muscle while struggling with a Warming Center guest. 

When Jeff Rowes, an attorney at the Institute for Justice, asked whether the shelter’s closure would disperse other potential violence around the city, Venezio replied that it might. 

Venezio also testified that his officers had encountered people at the Warming Center who he said came from outside Montana to avail themselves of the facility. In early 2023, Flathead County commissioners penned a letter that argued in part that the region’s homeless population came from elsewhere to take advantage of the community’s generosity.  

Ball, though, testified that most homeless individuals in the city are from Kalispell.  

The Warming Center, which has seen a loss in donations and grant requests put on hold since its permit was revoked, served 300 individuals last season, said Executive Director Tonya Horn while on the witness stand.  

WHILE LAWYERS for the Warming Center argued the Council’s revocation process was unfair and violated the shelter’s vested property rights, attorneys for the city deemed it a “land-use issue.” 

Marcel Quinn of Hammer, Quinn and Shaw PLLC, which is representing the city, argued that Council was within its power to revoke the permit because of the shelter’s adverse effect on the surrounding neighborhood and its reneging of promises made in its permit application, among them agreeing to remain receptive to neighbor complaints.    

Mayor Mark Johnson, who supported revoking the conditional use permit, testified that shelter leadership was unresponsive to resident concerns. He also suggested that the shelter bears responsibility for homeless individuals off of its property. 

Representatives of the Warming Center argued the behavior of homeless people off of its property is beyond the scope of the homeless shelter. 

Whether the shelter can offer any services following the revocation of its permit also proved a sticking point. In the weeks after Council’s vote, the Warming Center began offering daytime services, including access to laundry and shower facilities, and a space to warm up. Under cross-examination, Horn said shelter leadership believed it could offer those services based on a document the city filed in response to the lawsuit.  

Johnson later testified that he believed the facility could not operate as a shelter following Council’s decision, to include letting homeless people nap in the facility’s beds during daytime hours.  

That prompted Christensen to seek clarity on what services the shelter can and cannot offer. In response to questions from the judge, Quinn said that the facility could offer showers, laundry access and social services, but the details were ultimately up to the city’s zoning administrator.  

“So you’re saying they can serve the homeless in certain ways, but they can’t serve the homeless in other ways?” asked Christensen. 

Lawyers for the shelter argued that municipal officials have been unclear about what services it could offer post-revocation while attorneys for the city criticized Warming Center leadership for failing to follow up with City Hall.  

“How are they supposed to know what they are expected to do?” asked Christensen after litigators delivered their final arguments. 

How the property would be used would have to be discussed between the zoning administrator and shelter leadership, said Quinn. 

THE HEARING, which lasted roughly seven hours, ended without a decision from Christensen. It was not immediately clear when the judge will rule on the request.  

Lawyers for the Warming Center said they were encouraged by Christensen’s questions throughout the hearing.  

“The hearing today went very well. The judge was clearly engaged. The witnesses provided clear testimony about the issues, and now we just wait and see,” Rowes told the Inter Lake following the hearing. 

Quinn declined to comment.  

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