Court tackles animal sanctuary owner’s suit against Winston-Salem ban
North Carolina’s second-highest court will decide whether Winston-Salem violated a local woman’s constitutional rights when it ordered her to close an animal sanctuary at her home.
A three-judge Appeals Court panel heard an hour of oral arguments Wednesday in the case Dunckel v. Winston-Salem.
Kimberly Dunckel and her Fairytale Farm Animal Sanctuary are working with the Institute for Justice to challenge the city’s 2023 decision to block the sanctuary’s operations on a 3-acre residential property.
Dunckel’s lawyer cited two sections of the North Carolina Constitution focusing on economic rights.
“The ‘fruits of their own labor’ clause and the ‘law of the land clause’ protect Kimberly Dunckel’s right to earn money and run her lawful business so that she can fulfill her vocation — her calling — which is taking care of these animals and serving her community,” argued IJ’s Caroline Grace Brothers. “Because the record shows that prohibiting her from doing that is nowhere near reasonably necessary to accomplish the city’s goal, the city violated her rights.”
The plaintiffs argued that Winston-Salem officials cited potential noise, odor and especially traffic problems linked to the sanctuary’s events, though city zoning rules allow other businesses that could create similar issues.
“The whole point of having zoning districts and having a comprehensive plan is to be able to keep the unity of the city and to keep the industry in one area and the commercial in one area and the residential in one area, where people can live in a peaceful place and have the sanctity of their community,” responded Marissa West, Winston-Salem’s assistant city attorney.
Chief Appeals Court Judge Chris Dillon and Judges Julee Flood and Christopher Freeman questioned lawyers on both sides of the argument.
“Could the city prevent me from operating a law firm out of my house, where I’ll have no more than two people show up?” Dillon asked. “Can’t they do that?”
“They’ve made the policy decision that day cares are OK, but not animal sanctuaries. Can they do that, or is that too arbitrary?” he added.
Flood asked about the impact of Dunckel opening her sanctuary after the city had adopted rules banning that type of business. “Some of these other permitted uses, maybe they asked on the forefront,” she said. “It’s not something that we have before us, but I’m kind of bothered by the fact that this happened after the fact.”
While questioning some of Dunckel’s arguments, the judges also expressed skepticism about Winston-Salem’s claim that she had no standing to bring a lawsuit. The city argued that it never had issued a final order forcing the sanctuary to close.
“At what point did they shut down?” Freeman asked. “Was it because you told them to or because they just chose to?”
Winston-Salem raised concerns about sanctuary events that could attract hundreds of people to Dunckel’s neighborhood.
“What makes it an event that makes it, like, you can’t do that in my residential neighborhood?” Dillon asked. “Because I could have a big Super Bowl … or Halloween party, and by the way, I have pets here if you want to look at them. … What makes it an event that makes it bad?”
Schools would be allowed in the neighborhood. Dunckel could be “educating the public about the plight of the animals,” Flood said. “Why would this not equate with some sort of educational opportunity?”
Dillon, Flood, and Freeman face no deadline for a decision in the case.
“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 in November 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 brief last November 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.”
“Court tackles animal sanctuary owner’s suit against Winston-Salem ban” was originally published on www.carolinajournal.com.
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