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Rights vs. 'permission' at issueCases that could change dock regulations are going through the courts.
Whether there should be new docks in Blakely Harbor poses a philosophical question:Who owns the water - adjoining landowners who want to build a dock over or on it, or the public that objects to visual and navigational intrusions?But the resolution is likely to be less philosophical than legal. And the legal answer is far from clear-cut.Having a dock is not a property right, said Iver MacDougall, a retired attorney and president of the South Bainbridge Community Association. You may own the tidelands, but you do not control the water.In one sense, MacDougall is clearly correct - there seems to be little question that the State of Washington has the right and obligation to control the waterways and the lands underneath them.The real question may be whether the state, as owner and controller of the waterways, has given blanket permission to build docks.At one point in time, the answer appeared to be yes. In 1983, the Washington State Legislature passed a law stating that the abutting residential owner to state-owned shorelands, tidelands, or related beds of navigable water may install and maintain without charge a dock on such areas if used exclusively for private recreational purposes.Opponents challenged that law in court, claiming that under the ancient public trust doctrine, the state owned the tidelands and controlled the waters for the benefit of all citizens, and could not grant exclusive use to the adjoining landowner.The challengers did not prevail. In a 1987 case, the Supreme Court said that the state was not giving away any property rights, but simply giving permission to build docks - permission the state could revoke.And it said the Legislature was striking a reasonable balance of interests by allowing private docks, which provide recreational opportunities for landowners and guests, while not unduly burdening the non-owning public, who could navigate around or under the structures.Later in 1987, the Supreme Court said that what the Legislature gave, it could take away. It said that an owner who was denied permission to develop the tidelands could not sue for compensation, because he had no property right, only the opportunity to seek permission.According to MacDougall, modifying or withdrawing any general permission to build docks is exactly what the state is doing. He points to two recent decisions by the state Shoreline Hearings Board denying dock permits on Hood Canal because of the visual impact, and because of the possible proliferation of docks in relatively pristine areas. Those cases have been appealed to Mason County Superior Court, but no decisions have been announced. The Mason County cases, though, were based on that jurisdiction's specific shoreline regulations. Bainbridge regulations are different, and the city's planning department is not sure it can deny permits based on aesthetics or neighborhood opposition.I don't think those things will be an issue, planning Director Stephanie Warren said, adding that environmental issues would be decisive.MacDougall thinks the Blakely Harbor applications may end up in court, even though he agrees that environmental concerns are not terribly significant.The cumulative adverse effect on the public interest is a basis for denial, he said.There is considerable community feeling about this. We're prepared to litigate.