The Flathead Warming Center on Oct. 24, 2024. (Micah Drew, Daily Montanan)
How can the Flathead Warming Shelter even know if it is supposed to be open?
That was one question federal Judge Dana Christensen asked to a lawyer representing the City of Kalispell in a hearing Friday in U.S. District Court of Montana in Missoula over whether the shelter can continue to operate this winter.
In September, the city council voted to rescind a permit that allows the shelter to provide overnight services.
This month, the shelter sued the city, alleging the decision, “unprecedented” in the country, was made without due process and will harm people who are homeless.
The City of Kalispell, on the other hand, argued it has the right to make land use decisions and ensure public safety, and it always had the authority to revoke the permit, as stated in the permit application itself.
In a hearing Friday over a request from the shelter to stop the permit revocation as the case plays out in court, Christensen raised the question after both lawyers had finished making their arguments.
He said the resolution the city council adopted revoked the shelter’s permit, but that a legal filing from the city said otherwise: “It has been unequivocally rescinded, yet you’re saying they can continue to serve the homeless.”
In a court filing in the case, the city disputed the shelter’s argument the rescission “‘destroyed the Warming Center ‘as it ‘cannot lawfully open at its only place of business to perform its sole mission.’”
“CUP (conditional use permit) rescission does not prevent Plaintiff from operating the WC,” the filing said, and the judge read in court. “The rescission effectively means plaintiff simply cannot offer overnight lodging.” But it can still provide laundry, showers, “light food,” and other community services, the filing said.
Lawyer Marcel Quinn, on behalf of the city, acknowledged the paragraph could have been worded with more clarity. However, the judge said it left the Warming Center in the dark.
“How are they supposed to know what they’re supposed to do?” the judge asked.
The shelter also argued the city adopted the resolution before it was even fully written — one reason a copy of the document wasn’t provided with the agenda at the meeting, the shelter said.
The shelter generally operates from October through April when nights are cold. It has 50 beds available, and in the 2023-2024 season, it provided a place to sleep for 324 individuals, and it turned away people 106 times due to lack of capacity, according to statistics on its website.
Friday, the judge heard arguments on the shelter’s request for a preliminary injunction that would allow the shelter to continue to operate in the winter.
In previous public meetings in Kalispell, members of the public raised concerns about people sleeping in public parks, defecating outside restrooms, and dropping dirty needles.
The shelter argued in part that it’s not responsible for the tragic behaviors of others, and the decision to revoke its permit was made without due process, and now, lives are at stake as temperatures start dropping.
But the city said the shelter misrepresented its commitment to the city in its permit application to be a good neighbor, and it invited the shelter to the table even when it was not legally obligated to do so.
Homelessness is a growing problem in Montana and in Kalispell. The cost of housing is high, and wages have not kept up with people’s ability to pay mortgages and rent.
On the witness stand Friday, Kalispell Police Chief Jordan Venezio agreed the warming center reserved some beds so law enforcement officers could bring people who needed shelter there.
However, Venezio also said he believes the warming center has indirectly contributed to calls for service because he talks with people who tell him they came to Kalispell from out of state to go to the shelter.
In February 2023, the city council signed off on ordinances that limited people’s ability to have “excessive personal property” at public facilities, stopped them from putting up structures on public property, and limited time using park structures without a permit, according to the Daily Inter Lake.
The story said the council approved the ordinances after complaints about drug and alcohol consumption and public urination in a city park.
The Flathead County Commissioners had signed a letter at the time arguing the warming shelter was to blame for problems and titled their message “Stop Enabling Homeless Population.”
Friday in court, Mayor Mark Johnson of Kalispell also took the stand, and the judge asked him where people in the city are sleeping because other shelters are full.
“Where they are not seen,” Johnson said.
On behalf of the shelter, lawyer Jeff Rowes, for the Institute for Justice, said homelessness is increasing in Montana, as is the population, and the shelter is trying to help the most vulnerable people.
But he said it does not control the behaviors of people who are off the property.
Rowes also argued the city invoked new procedures “on the fly” to revoke the shelter’s permit. The shelter was forced to sue in federal court, he said, because there’s nothing in code about revocation, therefore nothing about appealing a revocation, and no citation to fight.
The city heard complaints from residents, and it bowed to political pressure and “scapegoated” the warming center, he said.
“It is implausible to believe that shuttering the warming center and leaving those beds empty and the restrooms closed is going to solve any problems the city is trying to address,” Rowes said.
On behalf of the city, however, Quinn, of Hammer, Quinn and Shaw in Kalispell, said no one disputes homelessness is a problem, but the city’s decision was not meant to stop homelessness or crime.
She said the case is ultimately about a land use decision. Under code, she said, the shelter was obligated to prove it would not have an adverse impact on the neighborhood in order to get its permit to operate.
But Quinn said the shelter painted a picture of its operation that was “woefully inaccurate,” and in order to rectify the harm that resulted to the neighborhood, the city council took action. And she said the application clearly states it has the right to do so.
The warming center earlier announced that it would remain open during the day to provide a limited set of services as the judge considers the request it be allowed to fully operate.
In an earlier statement, the executive director of the shelter said people will face the most severe consequences if the shelter isn’t allowed to help.
Christensen said he would issue a ruling as quickly as possible.