Courts must rein in the North Carolina zoning police

Why do you live where you live or work where you work? And if you own property, why are you restricted in how you can use it? If you’re like most Americans, the answer to these questions — bizarrely, in a supposedly free society — is the same: Because the government said so.

We call this system of legally mandated separation “zoning.” And for Kimberly Dunckel and her family in Winston-Salem, the system controls everything about what they can do on their own land — all the way down to whether they can host Girl Scout groups at their animal sanctuary.

The Dunckels moved to an abandoned rural lot in 2017, fixed it up, and opened their sanctuary to fill a need. For a year-and-a-half, the Dunckels cared for farm animals that had nowhere else to go. The Dunckels also hosted small groups of volunteers and occasional fundraising events.

Then one day, the zoning police showed up and ordered the Dunckels to shut down the sanctuary, even though it had not caused any problems in the neighborhood.

Now the Dunckels cannot host any volunteers, which makes caring for the animals extremely challenging. Nor can the Dunckels host any events, including small educational classes for Girl Scouts and other community groups — even though the Dunckels have ample parking and accommodations.

Elsewhere, the zoning police dictate whether homeowners may construct small add-ons or run quiet businesses in garage or living rooms.

The results are often catastrophic. Zoning makes it more difficult to construct housing, earn income, or use property for any needs in between. And the top-down control has gotten worse over the past 100 years, as the Supreme Court and lower courts sign off.

The earliest zoning codes were ostensibly designed to keep nuisances away from the public to protect human health. But today’s zoning codes govern far more, including what you can plant in your own front yard. Restrictions like these take a toll.

Decades of zoning for housing construction has resulted in acute shortages of affordable units. And with roughly 75% of existing residential zones in the United States restricted to single-family use only, county and municipal laws have excluded new entrants while imposing scarcity and homogeneity into the housing market.

People on the fringes of the economy suffer the most, but zoning laws stop private actors from addressing the fallout. This is what happened in North Wilkesboro, North Carolina, when the Catherine H. Barber Memorial Shelter tried to relocate a homeless shelter to a business district within city limits.

Zoning officials blocked the move using “traffic and safety” as a pretext. But a federal court did not buy the excuse and delivered a legal victory for the shelter in 2021.

“The Board apparently believes—incorrectly—that it can say the magic words ‘traffic and safety’ and this Court will rubber stamp the classification no matter the facts,” the judge wrote.

Chasidy Decker is another tragic case. Decker bought the only house she could afford — a tiny home on wheels. But the zoning police in Meridian, Idaho, told her if she wanted to actually live in her tiny house, she could not park it in a residential neighborhood. Instead, she would have to park her home in an RV park — even though the city’s only RV park was full.

Decker lost her case on July 23, 2024, and will seek further review.

My public-interest law firm, the Institute for Justice, represents Decker and the Dunckels. We also represented the Catherine H. Barber Memorial Shelter. More recently, we filed a brief in the Montana Supreme Court in defense of reforms that would allow Montanans to add much-needed housing inventory within existing single-family zones.

Local activists — people who want to keep new residents out — oppose the Montana change. Other zoning disputes go beyond housing.

Despite what society learned about remote work during the COVID-19 pandemic, zoning laws have not kept pace. Many local governments still insist on forcing home-friendly businesses away from the areas that need them most.

Property owners need courts to step up in cases like these, which is why the Institute for Justice launched its Zoning Justice Project on May 13, 2024. The goal is to challenge unjust zoning laws and advocate for sensible reforms.

Inherent in the right to own and possess property is the right to use it. And North Carolina cities and towns would be much better off if courts and local governments respected that right.