Case pits NC constitutional right against local zoning restrictions

North Carolina’s Supreme Court has focused more attention in recent years on economic rights. Multiple rulings have cited the state constitution’s protection of people’s right to the “enjoyment of the fruits of their own labor.”

Soon the court could decide whether to take a case that pits “fruits of their labor” against local zoning restrictions.

The dispute involves Kimberly Dunckel, her Fairytale Farm animal sanctuary, and the city of Winston-Salem.

Working with the Institute for Justice, Dunckel is challenging city zoning rules. She argues that Winston-Salem is violating her constitutionally guaranteed economic rights by blocking her animal sanctuary in a neighborhood zoned for residential use.

A trial judge and a unanimous state Appeals Court panel have ruled against Dunckel.

“Defendants’ purpose in preventing certain commercial uses in those [residential] districts is to ‘preserve the residential character of neighborhoods to promote health, safety, and general welfare,’” Appeals Court Chief Judge Chris Dillon wrote on April 1.

“By regulating and preventing Plaintiffs’ commercial use in Plaintiffs’ neighborhood, Defendants’ goal of preserving the residential character of RS-9 districts is achieved,” Dillon added.

“Plaintiffs are altering the residential nature of their … neighborhood” by operating the sanctuary, the Appeals Court explained. “Defendants worked to preserve the character and integrity of the specific RS-9 district’s residential character by eliminating a commercial use from the district. In light of this, Defendants’ enforcement is very effective at achieving their ‘desired public purpose.’”

Dillon noted that Dunckel could operate her sanctuary at another Winston-Salem location with different zoning.

“When a claimant asserts their fundamental right to earn a living has been infringed, the applicable Fruits of Their Labor and Law of the Land test does not require that the means be the best method of achieving the state’s goal; rather, the means chosen must be ‘reasonably necessary,’” he explained. “We believe that, in light of other options, it was reasonable for Defendants to prevent the operation of the Sanctuary at Plaintiff Dunckel’s property.”

Dunckel hopes the state Supreme Court will take a different view of the case.

“Because its operations would do nothing to the residential character of the neighborhood, it challenged the constitutionality of the zoning code as applied to it,” Fairytale Farm’s lawyers wrote in a May 5 petition. “Holding the lack of impact irrelevant, the Court of Appeals rejected the challenge simply because the Sanctuary is a ‘commercial’ use.”

“This case presents one issue: whether the Winston-Salem/Forsyth County Unified Development Ordinances violate the North Carolina Constitution as applied to the Sanctuary,” the petition continued. “Are zoning laws that limit the right to engage in legitimate business exempt from the ‘fact-intensive analysis’ otherwise required for Fruits of Labor and Law of the Land claims?”

Article I, Section 1 of the North Carolina Constitution opens the state’s Declaration of Rights. It features the “fruits of their own labor” language while also protecting rights to life, liberty, and the pursuit of happiness. Article I, Section 19 says no person shall be “in any manner deprived of his life, liberty, or property, but by the law of the land.”

The “fact-intensive analysis” language comes from recent state Supreme Court opinions. Dunckel cites cases involving COVID-era government shutdowns of private bars and an Alamance County racetrack named Ace Speedway.

“Three times in the last two years, this Court has repeated that laws restricting any legitimate business ‘must be reasonably necessary to promote the accomplishment of a public good, or to prevent the infliction of a public harm,’” Dunckel’s lawyers wrote. “Three times it has said that claims under the Fruits of Labor and Law of the Land clauses require ‘fact-intensive analysis.’”

“Even so, the Court of Appeals has now created an exception to those standards for zoning laws,” the petition continued. “Under the [April 1] decision below, zoning laws that burden the right to engage in legitimate business survive as-applied challenge even when ‘negative impacts’ to the public ‘are not present based on the factual record.’”

“That warrants this Court’s review,” Dunckel’s lawyers argued. “In exempting zoning from the usual ‘fact-intensive analysis’ due under the Fruits of Labor and Law of the Land clauses, the decision below ‘appears likely to be in conflict with’ Ace Speedway and other ‘decision[s] of [this] Court.’”

The state’s highest court faces no obligation to take Dunckel’s case. Justices might determine that Dillon applied state Supreme Court precedents correctly.

But if Fairytale Farm gets a new hearing, the court might offer additional guidance to those who question local government restrictions of North Carolinians’ basic economic rights.

Mitch Kokai is senior political analyst for the John Locke Foundation.