Appeals Court to review animal sanctuary’s suit against Winston-Salem
North Carolina’s second-highest court will consider soon an animal sanctuary’s lawsuit against Winston-Salem. The sanctuary and its owner are working with the Institute for Justice to challenge the city’s decision to block the sanctuary.
A trial judge ruled for the city and against Kimberly Dunckel and Fairytale Farm Animal Sanctuary.
“No less than three times in the past year, the North Carolina Supreme Court has reaffirmed that laws burdening the fundamental right to run a lawful business must be ‘reasonably necessary’ to accomplish the government’s aim,” Dunckel’s lawyers wrote in a brief filed Monday at the North Carolina Court of Appeals. “To comply with the Constitution, the ‘effective[ness]’ of the law must outweigh the ‘burden’ on the targeted business.”
“The City of Winston-Salem’s decision to prohibit Appellant Kim Dunckel and her family from operating Fairytale Farm — a lawful 501(c)(3) animal sanctuary — defies that mandate,” the court filing continued. “Before the City forced her to stop, Kim used her 3.3-acre property to house farm animals with special needs and host small groups of volunteers and occasional events to help fund the animals’ care.”
“Not only does the record prove that none of those activities caused traffic, parking, noise, or other issues, every single one is already permitted in the Dunckels’ residential zoning district,” the sanctuary’s lawyers added. “Winston-Salem’s municipal code allows them to keep the animals. The zoning code permits home-based businesses. And other businesses in the same district may host as many or more guests than Fairytale Farm.”
“So why did the City shut down a much-needed Sanctuary? Because the Dunckels are ‘sheltering’ their animals and ‘animal shelters’ are not allowed in residential areas because they cause traffic, parking, and noise issues,” according to the court filing.
“To recap: In the name of preventing traffic, parking, and noise problems, the City outlawed a legitimate nonprofit sanctuary that did not cause traffic, parking, or noise problems,” Dunckel’s lawyers wrote. “Meanwhile, the City allows others in the same neighborhood to care for those same animals and host the same number of visitors creating the same amount of traffic. Nothing in the record or the City’s brief justifies enforcing a prohibition that simultaneously fails to accomplish the City’s purpose and imposes a tremendous burden on the Sanctuary.”
“Because North Carolina’s Constitution does not tolerate such needless restrictions on the right to run a lawful business on one’s property, this Court should reverse the trial court’s judgment,” the brief added.
City officials argued in a Nov. 3 brief that zoning enforcement resulted from a complaint filed against the property in January 2023.
“The complaint received detailed stark concerns over the care and conditions of the animals on the Property,” Winston-Salem’s lawyers wrote. “The complaint, in addition, listed the Property as an animal sanctuary with concerns for ‘visiting public’ and ‘child, adult volunteers, and visiting groups.’”
Dunckel “unlawfully operated” the nonprofit sanctuary, city lawyers wrote. “The Sanctuary hosted a variety of regular events that increased the traffic and changed the character in their residential neighborhood.”
City zoning officials told Dunckel she could keep the animals as personal pets but could not operate the animal sanctuary at its current location. She could apply for a permit to operate any part of the business that would fit under the home occupation section of the city’s development ordinance.
Dunckel never appealed the zoning officer’s decision, according to the city’s brief. She never requested a change in zoning or the development ordinance. “Due to the compliance of the Dunckels, a Notice of Violation was not issued, and the investigation of the matter was closed by the City of Winston-Salem.”
Winston-Salem argued that Dunckel lacked standing to sue because the city never issued a final, binding decision against the property.
City lawyers also targeted the merits of Dunckel’s argument.
“The underlying lawsuit seeks to invalidate the ability of the City of Winston-Salem to enact reasonable zoning measures to protect the health, safety, and general welfare of its citizens,” according to the city’s brief. “The purpose of designating residential districts is to preserve the residential character and integrity of the community. It is to allow people to live in peaceful quiet zones without traffic of businesses and children can play without obnoxious smells, sounds or groups of people being draw to the area by a commercial attraction.”
Monday’s brief marked the final scheduled Appeals Court filing in the case. It has not yet been scheduled for arguments.
“Appeals Court to review animal sanctuary’s suit against Winston-Salem” was originally published on www.carolinajournal.com.
