"I am astonished that my ancestors should have allowed the laws to have such an authority against sovereign power."
- King James the First, King of England
Down a quiet road that dead-ends at a farm, on the left, within the city limites of Spokane Valley, Washington, there sits a small brick wall. This wall was built by my client, "Five-Feet-of-Fury", ("Fury" hereafter). I am an an attorney so you likely can tell something has gone wrong. That something took the form of a code enforcement officer slapping Fury with a $500 ticket and a demand to remove the wall because it exists where it should not, i.e., the city's right-of-way.
There are some people to whom you just can’t do certain things. Fury is one of them. Fury, all five feet of her, earned her name by racing drag cars, breaking them, fixing them, and then racing them again. When Fury is not iterating on this, she and her husband, Mike, walk into the Montana wilderness in late Autumn carrying nothing but water and a handful of nuts to hunt critters. The mule deer in Montana really don’t have a chance because Fury has been an Olympic caliber markswoman since her eighth winter. This majestic beast, once running free with Thumper in the Pasayten wilderness but repurposed as a package delivered to Chicago by FedEx formed the basis of my fee agreement. I am now counsel in defense of a wall.
While the wall is cool, it is Fury’s determination, once she is onto a scent, is what brings you this article. To her, there was a principle at stake when the government starts telling you something about your home you didn’t know and demanding money and telling her, not asking, to tear the whole thing down.
From anyone's perspective, the City is simply mistaken. The wall is clearly in Shannon's front yard, well within the perimeter of her fortress. There are no signs, markers, or ancient runes left behind by the settlors of the City to give Fury any clue that she was "infringing" on anything, let alone a figment of the City's legal imagination.
This Fury's story and her "Little Wall of Freedom" - a seemingly innocuous structure that has ignited a passionate debate about property rights, government overreach, and the very nature of civic engagement in the 21st century.
Issues
At first glance, this might seem like a simple case of a citizen running afoul of local regulations. However, as we delve deeper, Shannon's little wall reveals itself as a powerful lens through which we can examine the intricate workings of our legal system and the delicate balance between individual liberty and communal needs.
Constitutional Provisions
- Article I, Section 16 (Eminent Domain): "No private property shall be taken or damaged for public or private use without just compensation having been first made..."
- Article I, Section 3 (Personal Rights): "No person shall be deprived of life, liberty, or property, without due process of law."
- Article I, Section 7 (Privacy): "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."
Municipal Code
- SVMC 22.130.100: "No person shall perform construction work or otherwise engage in activity within existing City rights-of-way without first obtaining a right-of-way permit."
- SVMC 7.05.040(P): Declares that any violation of certain SVMC titles constitutes a nuisance.
State Law
- RCW 47.32.010: "Whenever the department determines and orders that it is necessary for the convenience and safety of public travel..."
Legal Analysis
Now, this is where things get interesting. As I pored over these laws, I started to see conflicts and contradictions that could be the key to Fury's defense.
Conflict Between State Law and Municipal Code
The more I looked at it, the more I realized there's a fundamental conflict between the state law and Spokane Valley's ordinance. It's like they're speaking two different languages:
This conflict raises questions of preemption - in the legal world, that's like saying "my dad can beat up your dad"
State law (RCW 47.32.010) requires a determination of necessity based on public convenience and safety
City ordinance assumes this need without requiring proof
“To no one will we refuse or delay, right or justice.”
- Magna Carta, 1215
The Setting Matters
The stage is set in the Pacific Northwest, on the eastern border of Washington, a stone’s throw from Idaho, and the stage matters. One of Fury’s most important arguments is related to privacy. The earliest residents of the area, the Spokane people, shared hunting and fishing grounds with the Nez Perce, a nomadic people. When Nez Perce Chief Joseph revolted in armed resistance, pursued by the 7th Infantry, his path took him through the border area of Spokane. The distance from the location where Joseph vowed to fight no more forever to the little wall and then to the last stand of the aforementioned deer is about equal.
I mention Joseph because he is the key player in the earliest right-of-way battle, in the military and legal sense of the word. Native people of that era, did not think of land as something that could be owned. Every Chief who ever sat across the table from the Army to negotiate a treaty thought they were trading permission to cross the land unharmed. Native people view land as sacred and we its worshippers. Custodians. Chief Seattle put it this way, “we do not inherit the land from our ancestors; we borrow it from our children.”
It is well established that a contract, or treaty, is not legally enforceable unless there exists “consideration” and “a meeting of the minds.” Consideration means not just a trade. The trade must consists of both sides exchanging something of value.
If Joseph had no concept of property ownership and the 7th Infantry insisted otherwise, how could there have been a meeting of the minds? More importantly, if Joseph didn’t own the land, what could he have given of value?
When a nation signs a treaty to a victorious invader, the territory gained is seceded by the losing nation and annexed by the winning nation. Joseph, Sitting Bull, Geronimo, and others who made a deal with the blue bellies believed they were only grant permission to share their sacred lands, the grounds where their ancestors lie, and hunting grounds and nothing more.
Do you see the irony? For something of value, Chief Joseph granted permission.
Fury's property is within the migratory area of the nomadic Nez Perce. Not far from where Fury's wall defiantly stands, Fury forever deprived Thumper and Flower of their childhood friendlies and Chief Joseph uttered his immortal words of surrender: "From where the sun now stands, I will fight no more forever." Both took of the banner over "permission", an invisible, non-existent thing that exists only in the maps of the mind. Spokane Valley may never use this right-of-way. It's a hypothetical sidewalk, a figment of bureaucratic imagination.
The Principle Of It
For Fury, like Joseph,"it's the principle of it?” She owns the land, darnit. It says so right on the Deed. Fee simple (title) from her front door to the center of the road. She got a job, kept a job, worked the job, and saved her money to buy a home. She mows the lawn, pays property taxes on it, and built a little wall. It is her property.
Was there something from a higher authority than Spokane Valley’s code to settle the matter. The Ten Commandments? What I found was an annoying dearth of guidance. Sure, there is Washington’s eminent domain clause:
“No private property shall be taken or damaged for public or private use without just compensation having been first made ….”
Article I, Section 16 — Eminent Domain
There is also Article I, Section 3 entitled “Personal Rights,: to wit:
“No person shall be deprived of life, liberty, or property, without due process of law.”
There is Article XVII, Section 1 on Tide Lands dealing with tide lands and shores of navigable waters, which kinda has implications for property owners. What is missing is a clear, constitutional rule that describes government’s relationship to private party other than its meddling behavior.
Yet, there's no clear constitutional rule describing the government's relationship to private property beyond its meddling behavior.
Privacy: The Sacred Front Yard
To invoke the august title of "Foot Soldier of the Constitution," our case needed to touch on constitutional principles. Fortunately, privacy is closely related to property, and Washington offers greater privacy rights than federal law:
"No person shall be disturbed in his private affairs, or his home invaded, without authority of law." - Article I, Section 7 of the Washington State Constitution
This provision has led to stricter interpretations of privacy rights in Washington. In State v. Eisfeldt (2000), the Washington State Supreme Court held that the "community caretaking" exception to the warrant requirement is narrower under the state constitution than under the Fourth Amendment.
Privacy in the West Is Alive
In order for me to claim the august title, “Foot Soldier of the Constitution,” the theory of our case had to actually invoke the Constitution. Fortunately, privacy is very close to property. If this was about training AI to argue the case, it might “hallucinate” and output “property” instead of “privacy” due to their proximity to each other in the vector database. Better yet, Washington offers greater privacy rights than federal law., having a state constitutional provision dedicated to it.
“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”
Article I, Section 7 of the Washington State Constitution
To tie this to our case, remember this case is about Fury’s front yard. What is more sacred than a front yard other than, possibly, the back yard. I sometimes wonder what the code guys think now. Do they wish they could take that day back? Maybe, go bust another meth lab instead? This is not to suggest that Fury is more intentional than any other citizen but I am just glad that it wasn’t a private citizen who took the same actions as the code guys did. If they had, this would be a murder trial. Put it this way, knowing what you know about Fury now, would you go onto her property, demand $500, and order her to remove her wall? If you had, you would then heard, “Mike, get the gun!”
The City's Stand: Law and Order in Spokane Valley
To be fair, the City of Spokane Valley isn't twirling a mustache and cackling over Fury's plight. They're simply following their code to the letter. According to Spokane Valley Municipal Code (SVMC) 22.130.100, "No person shall perform construction work or otherwise engage in activity within existing City rights-of-way without first obtaining a right-of-way permit." Furthermore, SVMC 7.05.040(P) declares that "[a]ny violation pursuant to SVMC Titles 19, 20, 21, 22, 23, 24, and/or 25" constitutes a nuisance.
From the city's perspective, it's cut and dry. Fury built a wall in the right-of-way without a permit. That's a violation of 22.130.100, which automatically makes it a nuisance under 7.05.040(P). Case closed, wall must go, here's your $500 fine. It's not personal; it's just the law.
On the surface, it seems like a David and Goliath story, with the mighty city wielding its legal sledgehammer against poor Fury and her little wall. But is it really that simple?
The Question of Proportionality and Fairness
Let's take a step back and ask: Is the city acting heavy-handedly here? Does proportionality matter in the application of law? Is there not a duty for the government to act fairly and reasonably?
Consider this: Up and down Fury's street, there are all sorts of "obstructions" in the right-of-way. Trees that have stood for decades, mailboxes, landscaping features, even the occasional parked car. Are these all nuisances too? Should every homeowner on the block be slapped with a fine and a removal order?
The principle of proportionality suggests that the severity of the law's application should be in proportion to the harm caused. Fury's wall isn't blocking traffic. It's not creating a safety hazard. It's not even an eyesore (unless you have a pathological hatred of well-crafted masonry). So why the harsh response?
Moreover, there's a general expectation that government will act fairly and reasonably in applying its laws. The Supreme Court has long recognized that even when the government acts within its powers, the Due Process Clause protects against government power arbitrarily and oppressively exercised (Daniels v. Williams, 474 U.S. 327, 331 (1986)).
By rigidly applying a one-size-fits-all approach without considering the actual impact of Fury's wall, the city might be falling short of this standard of fairness and reasonableness. They're using a cannon to swat a fly, and in doing so, they risk undermining the very principles of good governance they're supposed to uphold.
Strict Liability
The city's approach to Fury's wall appears to be rooted in a strict liability theory. In legal terms, strict liability means that a party can be held responsible for damages or a violation without any need to prove fault, negligence, or intent. In Fury's case, the city seems to be applying this principle to their right-of-way ordinance. Under this interpretation, the mere existence of the wall in the right-of-way, regardless of its impact or Fury's intent, is enough to constitute a violation. This approach removes any consideration of the wall's actual effect on public safety or convenience, or Fury's lack of knowledge about the right-of-way. It's a binary proposition: if the wall is in the right-of-way, it's a violation, period. While strict liability can serve legitimate purposes in some areas of law (like product liability or certain environmental regulations), its application in municipal code enforcement, especially concerning property rights, raises serious questions about fairness, proportionality, and due process. Is it just to treat Fury's decorative wall the same as one would treat a deliberate and dangerous obstruction of a public thoroughfare? This strict liability approach, while administratively convenient for the city, may well be at odds with broader principles of justice and the more nuanced requirements set forth in state law.
Conflict Between Code, Strict Liability, and Privacy
Washington was a territory when the Civil War was won. The vibe of Joseph in parts of Washington is palpable. Is there a legal basis for the question: does our state's promise of privacy restrict government from arbitrary and capricious abatement actions in the absence of a pretty good reason?
Like most things related to the constitution, we must borrow from criminal law. In 2000, a telephone repairman in Lacey, Washington stumbled onto what looked like a marijuana grow operation at a residence. Dutiful, he called the police who investigated immediately, obtained a telephonic warrant and people who would have committed no crime today went to jail.
On review, the Washington State Supreme Court held in In State v. Eisfeldt (2000) that the “community caretaking” exception to the warrant requirement is narrower under the state constitution than under the Fourth Amendment.
What level of intrusiveness is the City allowed to inflict without any explanation? The Eisfedlt Court expressly required more than strict liability when invading a Washingtonian's privacy. In State v. Mayfield (2016), the Court limited the “search incident to arrest” exception and required police to articulate a specific safety or evidence preservation concern before intruding into the privacy of its resident, especially a search.
That sounds more like it. It is still hardly a level playing field but under this theory, that the issue is privacy, we are merely starting to believe that the government is required to have a good reason to do that which would be outlandish and unacceptable if executed by you or me.
The Scales of Law: From Fundamental Forces to Municipal Codes
In physics, we understand the universe through fundamental forces and particles, arranged in a hierarchy from the cosmic to the quantum. The legal world, though man-made, mirrors this structure in what I call the Scales of Law. At the top, we have the U.S. Constitution, our legal equivalent of gravity, shaping the entire system. Below that, federal laws, state constitutions, and state laws form the strong and weak nuclear forces of our legal atom. At the smallest scale, like quarks, we find local ordinances - fundamental, yet subject to the influences of all the forces above.
This hierarchy isn't merely academic; it's the framework for resolving conflicts between laws. When laws at different levels clash, courts employ the doctrine of preemption, a legal principle that higher laws supersede lower ones. In Fury's case, this principle becomes crucial as we examine the interplay between state law and municipal code.
RCW 47.32.010: The State's Standard
At the state level, RCW 47.32.010 sets a clear standard for removing obstructions from rights-of-way. The statute states:
"Whenever the department determines and orders that it is necessary for the convenience and safety of public travel..."
This language is critical. The state law requires a determination of necessity, specifically tied to the "convenience and safety of public travel." This is not a mere formality; it's a substantive requirement that demands justification before action.
The Conflict and Its Implications
The divergence between the state law and the city ordinance is more than a technicality; it's a fundamental conflict in legal approaches. The RCW sets a higher bar, requiring the government to justify its actions based on public need. The city's ordinance, however, assumes that need without requiring proof.
This conflict touches on core principles of due process and the limits of government power. The state law provides a safeguard against arbitrary government action, ensuring that property rights are not infringed without due consideration. The city's strict liability approach, while perhaps administratively convenient, potentially overreaches by ignoring the more nuanced standard set by the state.
As we prepare Fury's appeal, this conflict becomes our legal fulcrum. The question isn't just whether the wall is in the right-of-way, but whether its presence necessitates removal under the state's standard. If the wall doesn't impede public travel or safety, there's a strong argument that the city's action is not just overreaching, but in conflict with state law.
FAQ Section
Q: Does the city have the right to demand removal of structures from private property?
A: Cities generally have the authority to regulate structures on private property, especially when they encroach on public right-of-ways. However, this authority is not absolute and must be exercised within the bounds of due process and other legal constraints. The city must typically demonstrate a legitimate public interest, follow proper procedures for notification and appeals, and allow reasonable time for compliance. In some cases, if the structure poses an immediate threat to public safety, the city may have broader powers for swift action.
Q: What is a public right-of-way and how does it affect private property?
A: A public right-of-way is a type of easement granted to local governments for public use, typically for roads, sidewalks, and utilities. While property owners often own the land under the right-of-way, the government has the right to use and regulate this area for public purposes. This means that structures or modifications within the right-of-way, even if on what appears to be private property, may be subject to municipal regulation and removal orders. The extent of the right-of-way and specific regulations can vary by jurisdiction, so it's important for property owners to be aware of local ordinances and property boundaries.
Q: How can citizens challenge municipal orders like the one Shannon received?
A: Citizens can typically challenge municipal orders through a formal appeals process, which should be outlined in the order or available through city resources. This often involves filing an appeal within a specified timeframe, presenting evidence and arguments at a hearing, and potentially escalating to higher authorities or courts if necessary. It's advisable to carefully review the order, gather relevant documentation (such as property surveys, permit records, and photographs), and consider seeking legal counsel. Additionally, engaging with local elected officials, attending city council meetings, and organizing community support can be effective ways to address broader issues related to the order.
Q: What role can technology play in making the legal system more accessible to citizens?
A: Technology has the potential to significantly democratize access to legal information and resources. AI-driven tools could help citizens navigate complex legal documents, understand the implications of local ordinances, and even predict potential outcomes of legal disputes. Virtual reality could be used to visualize property boundaries and right-of-ways, making abstract legal concepts more tangible. Online platforms could streamline the process of filing appeals, accessing public records, and participating in local governance. However, it's crucial that these technological solutions are designed with accessibility and user-friendliness in mind, ensuring they truly empower citizens rather than creating new barriers.
Conflict of Laws
Q: How can communities balance the need for regulation with respect for individual property rights?
A: Balancing regulation and property rights requires ongoing dialogue, transparency, and flexibility from both government officials and citizens. Communities can establish citizen advisory boards to provide input on local ordinances, implement sunset clauses for regulations to ensure periodic review, and create clear, accessible guidelines for property modifications. Emphasizing education and communication about local laws, rather than punitive enforcement, can foster a more cooperative atmosphere. Additionally, implementing mediation processes for disputes and exploring innovative solutions like transferable development rights can help strike a balance between individual interests and community needs. Ultimately, the key lies in creating a governance model that views citizens as partners in community development rather than simply subjects of regulation.
