UPDATED: Kalispell permit revocation ‘unprecedented,’ says Flathead Warming Center in lawsuit

The Flathead Warming Center sued the City of Kalispell on Wednesday alleging the City Council unlawfully “extinguished” the nonprofit’s property rights without due process by revoking a permit that allows it to house people who are experiencing homelessness — in an “unprecedented” move.

In a news conference, lawyer Jeff Rowes for the Institute for Justice described the case as one of the most important property rights cases in the United States, and the nonprofit law firm has teamed up with the shelter to teach the City of Kalispell a lesson.

“Private property rights matter,” Rowes said in a recorded stream of the press conference. “What Kalispell did is truly unprecedented. The warming center never broke any laws. It never violated any condition of its permit.

“We have not been able to find another case anywhere in the United States in which a government has done to a private property owner what the city of Kalispell has done to the warming center here.”

The lawsuit was filed in U.S. District Court of Montana, District of Missoula, and the shelter is asking the judge to allow the shelter to open on Thursday. The shelter typically operates from October through April, when temperatures can dip as low as 16 to 31 degrees on average, the lawsuit said.

“With freezing temperatures just days away, the lawsuit asks the court for an emergency order to keep the Center open while the legal battle unfolds, ensuring that those most vulnerable are not left out in the cold,” said the news release about the complaint.

The warming shelter provides people who are experiencing homelessness emergency shelter during Montana’s coldest nights, and its purpose is to prevent injury, “like hypothermia or frostbite, or death from exposure to the elements,” the lawsuit said.

The complaint alleges the City Council used a “sham” decision process in the revocation, deciding to adopt a resolution to take away the permit without first completing the resolution (it had “numerous blanks to be filled out”) or providing it as part of its agenda, the lawsuit said.

“After the City Council voted for Resolution 6227, Warming Center leadership immediately began requesting a copy of the resolution, which city staff ignored,” the complaint said. “On information and belief, the City Council was not able to give the Warming Center a copy of Resolution 6227 immediately following the City Council’s vote because it had not been fully written at that time.”

Just two years earlier, though, the warming center asked for the right to add 10 more beds, and “there was not a single negative public comment” about that modest expansion, said Christie Hebert, also with the Institute for Justice, at the press conference.

The city granted the request, but the political winds changed, Hebert said.

“Blaming the warming center for causing homelessness became a way to score political points,” Hebert said. “And using a process it has never used before and would never use against anyone else, the city took away the warming center’s permit, and, therefore, is preventing it from sheltering the homeless.”

In a phone call, the Kalispell city attorney said the city does not comment on pending litigation.

The shelter’s founders are Tonya Horn and Luke Heffernan, and they first opened the shelter in December 2019, the lawsuit said.

The revocation took place after Kalispell city staff helped Horn work through permitting requirements for a new location and underscored the need for the shelter, according to the complaint.

In 2020, the planning department of Kalispell recommended the City Council approve the application the property be allowed to operate a homeless shelter, stating “homelessness in Kalispell, as throughout the county, is a significant issue,” the lawsuit said.

It also said the permit application was consistent with the city’s growth policy and its goal to encourage “housing types that provide housing for all sectors and income levels within the community,” the complaint said.

But in a 6-3 vote on Sept. 16, 2024, the Kalispell City Council revoked the warming shelter’s permit, “destroying the shelter’s ability to carry out its important work.”

“The city took this extreme action despite never issuing the Warming Center even one citation for violating its conditional-use permit or any Kalispell ordinance,” said the complaint.

The Warming Center is represented by Crowley Fleck in Billings and the Institute for Justice. The Institute for Justice describes itself as a public interest, nonprofit law firm based in Austin, Texas.

“Kalispell’s decision to shut down the Flathead Warming Center without citing it for breaking any law is not just heartless—it’s unconstitutional,” said Rowes, senior attorney at the Institute for Justice, in a statement. “The Center has a vested property right to continue serving the homeless, and the city is scapegoating the Center because it doesn’t want to deal with the realities of homelessness. Shutting down the Warming Center is needlessly cruel and illegal, especially when the city is resorting to baseless accusations to try to justify its unconstitutional actions.”

The complaint describes the evolution of the shelter. At first, it operated with just 20 beds out of the Christ Church Episcopal basement with bathrooms but not showers or laundry.

“Almost nightly, the Warming Center had to turn people away because of its limited capacity, but the Warming Center knew it needed to act immediately to save lives even if that meant operating with less-than-ideal capacity and limited services,” the complaint said.

The shelter’s leaders searched nearly two years for the right property for a more appropriate shelter. In August 2020, the shelter contracted to buy property contingent on the right to operate a homeless shelter, the lawsuit said.

It said Horn had worked closely with the Kalispell planning office to properly submit a permit application that allowed a homeless shelter, and staff identified no criteria that did not favor granting the permit, according to the complaint.

On Nov. 2, 2020, the City Council unanimously voted to grant the Warming Center the conditional use permit, the lawsuit said. It opened its doors on Dec. 17, 2020, at 889 Meridian, and it housed 207 “unique individuals” that winter, the complaint said.