What Happens When an Irresistible Force Meets an Immovable Object

<p> The unstoppable force paradox is an exercise in logic that seems to come up in the law all too often. There is a Chinese variant. The Chinese word for “paradox” is literally translated as “spear-shield” coming from a story in a Third Century B.C. philosophy book, Han Fiez, about a man selling a sword he claimed could pierce any shield. He also was trying to sell a shield, which he said could resist any sword. He was asked the obvious question and could give no answer. </p> <p> The Washington Supreme Court broke the paradox between a 12-month moratorium during which the City of Woodinville considered sustainable development regulations for its R-1 residential area, and the efforts by the Northshore United Church of Christ (Northshore Church) to host a movable encampment for homeless people on its R-1 property. <a href="http://www.courts.wa.gov/opinions/pdf/805881.opn.pdf">City of Woodinville v. Northshore United Church of Christ (July 16, 2009)</a>. </p>

July 21, 2009, 2:08 PM PDT

By Dwight Merriam


The unstoppable force paradox is an exercise in logic that seems to come up in the law all too often. There is a Chinese variant. The Chinese word for "paradox" is literally translated as "spear-shield" coming from a story in a Third Century B.C. philosophy book, Han Fiez, about a man selling a sword he claimed could pierce any shield. He also was trying to sell a shield, which he said could resist any sword. He was asked the obvious question and could give no answer.

The Washington Supreme Court broke the paradox between a 12-month moratorium during which the City of Woodinville considered sustainable development regulations for its R-1 residential area, and the efforts by the Northshore United Church of Christ (Northshore Church) to host a movable encampment for homeless people on its R-1 property. City of Woodinville v. Northshore United Church of Christ (July 16, 2009).

NOTE: This post was originally published on International Municipal Lawyers Association Local Government Blog, available at http://imlablog.wordpress.com.

Throw into the mix the Washington State Constitution and the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) and you have enough irresistible forces and immovable objects to fill any Chinese philosopher's book.

The encampment of 60-100 people in the Puget Sound area moves from place to place every 90 days. When it came time for it to move, and Northshore Church applied for a temporary use permit, the city refused to act on it based on the moratorium put in place just a few months before.

Northshore Church sued. The city won at trial and got an injunction against the encampment. The trial court held that the city met its obligation to have a narrowly tailored moratorium that achieved a compelling governmental purpose – thus, there were no constitutional or RLUIPA violations. The appellate court upheld the trial court, even though it found that the trial court should not have applied strict scrutiny.

The Washington Supreme Court reversed, holding that the city could not refuse to process the application because the Washington Constitution guarantees "[a]bsolute freedom of conscience in all matters of religious sentiment, belief and worship [and] shall not be so construed as to justify practices inconsistent with the peace and safety of the state." The refusal to process the application was a substantial burden, said the court, because "[i]t gave the Church no alternatives."

The Court did not reach the RLUIPA claim as it held the constitutional violation was dispositive.

The city's website describes the appellate court decision, but does not report the Supreme Court's reversal. Northshore Church's website, however, celebrates the decision.

The key point is the utter lack of any alternatives. The city simply refused to process the application. Northshore Church said at oral argument that it could have hosted the encampment inside the church (sounds like new evidence to me – surprising how often this kind of thing sneaks in during appellate argument) and the Washington Supreme Court noted this as illustrative of how refusing to process the application precludes considering any alternatives. Almost as important was the moratorium of 12 months and the Washington Supreme Court's precedential decision that a 14-month delay created an unconstitutional burden. The city had not shown the moratorium to be a narrow means of achieving a compelling goal. "Planning pause" moratoria, as we call them, are hard to justify beyond six months and most moratoria should allow some administrative relief for exceptional cases. This is one of those exceptional cases, where the permit was for a temporary use, a use not likely to defeat the purpose of this moratorium to study how to have more sustainable development in a residential zone.


Dwight Merriam

Dwight H. Merriam founded Robinson & Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters.

Gentrification

What We Really Mean When We Say Gentrification

The focus on gentrifying communities has, in many cases, eclipsed the similar problems facing more stagnant neighborhoods.

September 14, 2021 - Vox

Brooklyn Redevelopment

Study: Market-Rate Development Filters Into Naturally Occurring Affordable Housing

New research sheds new light on one of the most hotly debated questions in planning and development.

September 15, 2021 - Full Stack Economics

Rendering of aerial view of Telosa city

Why Tech-Utopian City Plans Fail

Like others before him, e-commerce billionaire Marc Lore wants to build the ideal city from scratch. Urban experts don't have much faith in his chances.

September 9, 2021 - Bloomberg BusinessWeek

Senior Planner

City of Scotts Valley

Deputy Planning Officer (Assistant Planning Director)

Gallatin County Department of Planning & Community Development

City Planner

City of Basehor, Kansas

Urban Design for Planners 1: Software Tools

This six-course series explores essential urban design concepts using open source software and equips planners with the tools they need to participate fully in the urban design process.

Hand Drawing Master Plans

This course aims to provide an introduction into Urban Design Sketching focused on how to hand draw master plans using a mix of colored markers.