Zoning Justice Project Litigates Cases On The Cutting Edge

No matter the practice area, the world of public interest law is ever changing. To both drive that change and be responsive to it, we must remain strategic, creative, and entrepreneurial. IJ’s litigation within our Zoning Justice Project embodies each of these qualities, with several recent cases showcasing our adaptability.

A good example of making change—and then building off of it—can be found in Georgia. Most recently, IJ won our lawsuit on behalf of a nonprofit looking to build a community of smaller homes in Calhoun, Georgia. You can read more about it on here. But that victory was possible because of an economic liberty case we won at the state’s high court a few years ago. 

In 2023, IJ prompted the Georgia Supreme Court to declare that the government simply cannot pick winners and losers in the marketplace without a good reason based in health and safety. In the years since that landmark win, we’ve filed several cases asking Georgia courts to apply that standard to other areas beyond the traditional economic liberty context—particularly zoning. 

That’s exactly what our strategy was in Calhoun—to present evidence that the minimum square footage requirement was much larger than necessary for health or safety purposes and was instead based merely on zoning officials’ opinion that smaller homes were just “too small” … and likely a desire to exclude poorer people from the city. Though we ultimately won on other grounds, the city’s own lawyer readily agreed that our earlier precedent meant we would have prevailed on those claims. 

Meanwhile, an aspiring hair salon owner, Khalilah Few, was denied a conditional use permit in a suburb of Atlanta. There, local officials think their zoning power means they can deny a permit to an otherwise lawful business because it doesn’t satisfy their subjective sense of how many hair salons is “too many.” IJ helped Khalilah file a lawsuit to reinforce and build upon our previous Georgia victories.

IJ’s Zoning Justice Project also recognizes opportunities that result from cases litigated by others. For example, a 2024 U.S. Supreme Court decision upheld the constitutionality of a municipal ban on camping on public property. But that case left unresolved a question we at IJ were uniquely poised to address: If homeless individuals are prohibited from sleeping on public property, and a town separately prohibits them sleeping on private property, what’s left? 

That’s precisely the issue IJ is litigating on behalf of Gil Kerley in Albuquerque, New Mexico. Gil allowed a few homeless people to spend the night in the private parking lot of his bookstore. In response to this compassionate act, the city fined Gil for the presence of tents as a violation of its zoning code. But New Mexicans have long used their property to help others in need, and the U.S. and New Mexico Constitutions both protect that right. 

IJ is not afraid to take creative approaches to vindicate the constitutional rights of clients, even those ensnared in zoning purgatory. In Calais, Maine, IJ represents Kamiwan and Paul Oliver in a challenge to the town’s hodgepodge of zoning restrictions that make it illegal to raise more than a handful of chickens on one’s own property. For months, the Olivers sought clarity on the town’s laws to see if there was any way they might be able to comply, only to be ignored. Finally, they sued. 

The constitutional right implicated? The Maine Constitution’s newly enshrined “Right to Food” Clause, which protects the right of Mainers to “grow, raise, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health and well-being.” IJ’s lawsuit is the first aimed to vindicate this now expressly enumerated right.

Another novel approach to zoning litigation is unfolding in North Whitehall, Pennsylvania, where a beloved auto mechanic was ordered to shut down his home-based business—even though the garage operated from an isolated 16-acre residence that neighbors never complained about. The owner, Gene Weierbach, was trapped in municipal administrative limbo for more than a year and spent tens of thousands of dollars on a private attorney. 

Now, thanks to some crafty procedural maneuvering by IJ, he has well-positioned constitutional arguments. The Pennsylvania Constitution prohibits local governments from using zoning to run roughshod over property rights or destroy a beloved home-based business. With IJ’s help, Gene is now fully on track to have those claims heard by a proper court.

Zoning cases can be tricky. But by staying flexible—yet always principled—IJ advances cutting-edge arguments wherever and however a case may arise.

Ari Bargil and Bob Belden are IJ attorneys and co-leaders of IJ’s Zoning Justice Project.