The Flathead Warming Center on Oct. 24, 2024. (Micah Drew, Daily Montanan)
The Flathead Warming Center will be open for overnight service starting Thursday evening for people experiencing homelessness in the Flathead Valley after a federal judge granted a preliminary injunction reinstating the shelter’s operating permit while the case plays out in court.
U.S. District Court of Montana Judge Dana Christensen wrote in his order granting the preliminary injunction that the warming center had established “serious questions” about whether it was given due process before it was shut down for nightly services, that it would suffer irreparable harm if the permit revocation was allowed to stand, and that an injunction is in the public interest while the remainder of the case moves forward.
“We’re elated that we can keep helping people through the worst of the winter,” said Flathead Warming Center Executive Director Tonya Horn. “With this decision, we will be here to provide warmth, safety, and support to those who need it most. We plan to do so with our community’s continued support as we work with everyone to take care of our most vulnerable neighbors. This winter is expected to be harsh, and we’ll do everything we can to keep our community’s homeless residents safe and out of the cold.”
Institute for Justice Senior Attorney Jeff Rowes, who is representing the shelter in the case, called the injunction a “critical victory” early in the lawsuit. He said the shelter would open Thursday night for services.
“The court’s decision will protect the homeless this winter and reenforce that the Constitution protects all of us, even those with the least power and influence,” Rowes said in a statement. “The facts section of Judge Christensen’s decision is a devastating account of the injustice the City inflicted on the Warming Center and on the homeless people it serves.”
Kalispell City Attorney Doug Russell said the city does not comment on pending litigation.
The Kalispell City Council in September revoked the shelter’s conditional use permit, which meant the shelter could not house people and offer services overnight, on the basis that the warming center was a neighborhood nuisance and created a negative impact to the surrounding area.
The Flathead Warming Center, first opened in December 2019, is the only low-barrier shelter in the Flathead Valley and can house as many as 50 people each night. It operates between from October through April, when nighttime temperatures are typically below freezing. Last winter, it served 324 different people, provided 3,000 showers to people and 1,000 loads of laundry.
The warming center sued in early October, alleging the city council’s September approval of a resolution revoking its conditional-use permit violated its property rights without due process. The suit alleged that the resolution was not fully complete before it was approved, nor did the city respond to the warming center’s request for a copy of the resolution or give it a chance to respond.
The shelter raised money to buy and renovate a property, and the city council first granted the shelter’s conditional-use permit in November 2020. The Flathead Warming Center opened a month later when the city issued the shelter a temporary certificate of occupancy for the winter.
In 2022, the warming center asked in an administrative conditional-use permit to increase its occupancy from 40 to 50 people, which was approved by the city without any signs the shelter was not being a “good neighbor,” nor any indication that the center had made any false representations in its application for the permit.
In 2023, the city council passed ordinances prohibiting people from storing excessive personal property on public property and prohibiting tents and shelters in parks. Christensen noted in his order that violence against people experiencing homelessness, and those who help them, in the area increased after the ordinances were passed, including one man being beaten to death.
The city council this past May reviewed the shelter’s original permit and took public comment from both the shelter and its neighbors, and then told the shelter it wanted to hear from leaders and possibly consider rescinding the shelter’s permit.
Horn noted, as did the center’s attorneys when a hearing was held on the proposed injunction in late October, that city code does not include information on how a conditional-use permit can be rescinded, and that the shelter had met each condition required by the permit.
There was a mediation period late this summer, and in September, the council chose to revoke the permit.
In his analysis granting the injunction, Christensen agreed with the shelter’s arguments throughout. He said the City of Kalispell had failed to point to any section of city code or state law that allows for the council to rescind a conditional-use permit “as a matter of grace” to neighbors.
He also wrote that more concerning was the city “had prejudged the issue it was supposed to adjudicate,” and possibly for years, as he said his review of the permit showed, the warming center never agreed to certain regulations the city tried to impose.
He found the city never identified the alleged falsehoods in the permit application or the complaints from neighbors, nor did it allow the shelter to cross-examine witnesses, thus depriving it of due process.
He also agreed that the council’s decision would cause the shelter irreparable harm absent an injunction because people experiencing homelessness would face the risk of death or injury if the shelter cannot be open at night. Part of the shelter’s mission is to give people a warm and safe place to sleep throughout the winter. The warming center said it would lose $185,000 in pending grants and donations if an injunction was not issued, and would have to lay off some or all of its 12 staff members.
Christensen found based on testimony from the shelter and mayor, shelter officials did not lie on the permit application and that it would be “inconceivable” for him to find the city faced hardships based on the permit. He also found that allowing the shelter to operate overnight would not have more adverse effects to neighbors than the effects to homeless people if the shelter was not allowed to operate.
“While the Court is sympathetic to the experiences of community members, it is illogical to assume that decreasing services to the homeless will alleviate the adverse effects the City is experiencing,” Christensen wrote.
Elaborating on that point, he noted that the city had argued at the October hearing that people experiencing homelessness were urinating and defecating in the area. But since the shelter provides the only overnight public bathrooms in the city, closing those would only lead to more people doing so in public.
“To put it another way, granting the injunction is more likely to alleviate any hardship to the City than exasperate it,” the judge wrote.
A Logan Health Center doctor testified at the October hearing that it would see increased cases of frostbite, hypothermia, trench foot and death if the shelter was not allowed to operate overnight through the winter. That showed, according to Christensen’s order that the balance of hardships and public interest tipped in the shelter’s favor.
“The judge recognized that there are serious problems with what the City did and that irreparable harms would likely occur if the Center can’t provide overnight shelter,” Institute for Justice Attorney Christie Hebert said in a statement. “We look forward to working with the City as the case progresses to find a way forward that balances the needs of the community with the shelter’s essential mission. The Warming Center remains committed to serving Kalispell’s homeless and being a good neighbor, within the limits of what it can do.”