Using 'Rational Basis' Test, Federal Court Holds That Requiring a Homeless Shelter to Obtain a CUP Violates Equal Protection

A United States federal court recently held that Town of North Wilkesboro, North Carolina, violated the the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution when it required a homeless shelter to apply for -- and obtain -- a conditional use permit ("CUP") to operate when similarly-situated entities were not so required. See Catherine H. Barber Memorial Shelter, Inc., v. Town of North Wilkesboro, Case No. 5:20-CV-00163 (US Dist. W.D. North Carolina, December 20, 2021). Of particular interest, the court did not use a "heightened scrutiny" standard in evaluating the case. The court invalidated the CUP requirement for the homeless shelter using a "rational basis" analysis.

Legally, this is an interesting case showing that the Equal Protection Clause and other Constitutional provisions CAN successfully be used to challenge local zoning and land use regulations. Further, this case may be persuasive to other courts when a landowner challenges a land use regulation or denial of a permit based on Equal Protection.

The homeless shelter at issue, the only homeless shelter in Wilkes County, North Carolina, opened in 1987. At the end of 2018, the Shelter began seeking a new, larger location. The North Wilkesboro Zoning Ordinance -- §3.2(B)(2)(c) -- requires homeless shelters to be in the highway-business district, be at least 250 feet away from residences, parks, and schools, adjoin public sidewalks, provide supervision, have at least 50 heated square feet per client, be in harmony with the area and that homeless shelters obtain a CUP before beginning operations.

In the lead-up to opening its new location, the shelter applied to North Wilkesboro for a CUP. The application was denied. Following the denial, the shelter appealed, raising many arguments including challenging the Constitutionality of being required to obtain a CUP. With respect to the Equal Protection argument, the shelter argued that similarly situated businesses and organizations in the highway-business district were NOT required to seek a CUP. Examples cited included:

• Hospitals
• Nursing care institution -- for the "chronically ill or incurable"
• Congregate care facilities -- for the elderly
• Civic, fraternal, cultural, and community facilities
• Emergency shelters
• Lodges
• Day care facilities
• And many more

Further, there were several types of businesses and organizations that WERE required to obtain a CUP if they were in the highway-business district. But, according to the shelter, these businesses were very unlike the shelter. Example cited included:

• Automobile lots
• Raceways
• Waste transfer stations
• Cell-phone towers
• Nightclubs and
• Bed-and-breakfast businesses

In general, the Equal Protection Clause requires that laws be applied equally to those who are similarly situated unless the government has a legitimate purpose for treating people differently. Equal Protection is required by both the federal and North Carolina Constitutions. Most often, Equal Protection involves allegations of discrimination -- being treated differently -- within the context of some invidious classification like race, sex or national origin. In those cases, courts use a legal standard called "strict scrutiny." When that very high standard is applied, the government's "legitimate purpose" will be examined very closely and, most often, the government's purpose will be held lacking.

However, when no invidious classification is at issue, then the courts will use a legal standard called "rational basis." When that very low standard is used, the government must show a rational relationship between its "legitimate purpose" and the method used to achieve that purpose including the classification of citizens. Almost always, the court will uphold the government's law or regulation.

In the homeless shelter case, the court found no invidious classification. As such, the court used the "easy" rational basis test.

However, North Wilkesboro still lost. The Town attempted to argue that the homeless shelter was NOT similarly situated to, for example, a hospital or a nursing home because those businesses required state licensure. The court was not persuaded. Moreover, as the court noted, emergency shelters were not generally licensed by the state and North Wilkesboro did not require that emergency shelters obtain a CUP. The court pointed out that the Town stated that its “legitimate purposes” involved regulating occupancy density and adverse impacts on neighboring landowners. Thus, the court stated:

"Therefore, the proper inquiry is not whether there are some facts that differentiate a homeless shelter from these other uses [like a nursing home], but it is whether there are facts pertaining to the intensity of the land use and the potential impact upon adjoining property owners that differentiate the Shelter."

The court answered that question by saying "[t]he answer is no."

The Town then argued that, even so, there were traffic, safety and harmony concerns about the Shelter operating at the proposed location that justified treating the homeless shelter differently. Again, the court was unpersuaded. There were no actual facts presented that showed that the homeless shelter would cause greater traffic congestion, be less safe or less harmonious in the district than any of the other businesses that were not required to obtain a CUP.

In the end, the court held that, under a rational basis analysis, the North Wilkesboro ordinance discriminated against the homeless shelter in violation of the Equal Protection Clause. The court ordered the Town to allow the shelter to proceed and begin operating.

For more information, and to schedule a confidential consultation with experienced and dedicated zoning and land use attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.