Supreme Court spanks city over moratoria

But the city is left puzzled by the split decision over shoreline permits.

The City of Bainbridge Island erred when it imposed a moratorium on shoreline construction, the Washington State Supreme Court ruled this week.

The court, in a 5-4 decision, said the city did not have the authority to freeze shoreline development in the manner in which it did.

Wider implications, however, remain up for debate because one justice – though he ultimately favored the litigants – also sided with the reasoning of the court’s minority.

“While I disagree with the lead opinion’s conclusion that the city lacks authority to impose any shoreline moratoria, I do agree that this moratorium exceeded its lawful power,” wrote Justice Tom Chambers in his concurring opinion.

Still, Chambers wrote, “it is arrogant, high handed, and beyond the pale of any constitutional authority for a stagnant government to deny its citizens the enjoyment of their land by refusing to accept building permits year after year based on a rolling moratorium.”

The moratorium – imposed by the City Council in 2001 and later extended several times – aimed to give the city time to bring local codes into compliance with new federal regulations intended to protect salmon. It stopped the construction of bulkheads and docks, among other structures.

In a strongly worded majority opinion, Justice James M. Johnson said the city’s “imposition of repeated moratoria was unconstitutional and unlawful.”

“Clearly, the city’s procrastination resulted in a physical degradation of these private owners’ property without any direct cost to the city,” Johnson wrote. “The authors of our constitution would be surprised by the city’s claim of power.”

That claim – which the city argued is existent in state law – was shot down in a June 2003 decision by Kitsap Superior Court Judge Leonard Costello, which this week’s Supreme Court ruling upheld.

Costello at that time found that the city did not have the authority to enact the moratorium because it conflicted with the 1971 Shoreline Management Act, which supersedes the city’s authority.

Costello further found that even if the city had the authority to impose the moratorium, that authority does not extend to bulkheads for single-family residences or docks costing less than $5,000.

In a dissenting opinion, Justice Mary E. Fairhurst supported the city’s contention that the moratoria were necessary.

“Land use scholars and courts recognize that moratoria are valid tools for local government to forestall filing of permit applications when amending land use regulations,” Fairhurst said. “The SMA does not expressly prohibit cities from imposing moratoria on shoreline development.

“The only possible conclusion to draw from all the evidence is that the city acted reasonably in adopting its moratorium because it promoted the health and welfare of the public related to the city’s interest in protecting the shoreline from overdevelopment while it amended its SMP and comprehensive plan.”

Thursday’s decision said the litigants – which include island residents Ray and Julie Bigger, Craig and Sandy Powell, island builder and resident Andy Mueller, Sealevel Bulkhead Builders and the Home Builders Association of Kitsap County – are entitled to monetary damages.

Their attorney, Dennis Reynolds, said the ruling is clearer than some reports are making it out to be.

“The city is kind of toast here,” he said. “Some people seem to think that the decision would allow you to have a shoreline moratorium – it really doesn’t say that.”

Reynolds said cities do have some authority to restrict size and setbacks of structures while they retool code, but the moratorium imposed by the city was far too lengthy and restrictive.

“To outright preclude development, there’s no reasonable way to do that,” he said.

Reynolds said this week’s decision could bode well for a group of litigants – whom he also represents – still deadlocked with the city over dock restrictions in Blakely Harbor.

City Attorney Paul McMurray said the city still is evaluating its options, including whether to file a motion for reconsideration by the court.

After studying more closely the court’s decision, the city’s legal team, along with council members and the mayor, will decide in executive session how to proceed.

“The city obviously is disappointed in the ultimate outcome of the decision,” McMurray said. “It appears that the city won on the law, but lost on the facts.”

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