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If the suit fits, bear it

(See accompanying story, "Is every day the city's day in court?")

On the frontier of yesteryear – at least in the Hollywood version – sheepmen, cattlemen and farmers traded gunfire over land and water.

Today, environmentalists, homeowners and developers still fight over land and water, but their weapons are lawsuits. The frontier is Bainbridge Island.

Over the last three years, the city has been involved in no fewer than 18 lawsuits, some as plaintiff, some as defendant, and some as an unwitting third party caught up in disputes between neighbors.

“I really have no way of knowing, but I suspect that’s unusually high compared to some other cities,” said city attorney Rod Kaseguma. “But Mercer Island, for example, has no undeveloped land, so it doesn’t have the land-use issues that Bainbridge does.”

Land use was in fact at issue in all but two of 18 Bainbridge Island lawsuits.

Of the seven land-use suits that have been at least partially resolved, the city prevailed in four, although two of those are still subject to appeal. The city lost one, and settled two on terms favorable to the opposing party.

Here is a tally of those 18 lawsuits, from information provided by Kaseguma, city Administrator Lynn Nordby and city Finance Director Ralph Eells:

l Woodland Village – Neighbors opposed a subdivision on Ferncliff Avenue for a number of reasons, principally that the city should not have included wetlands in its calculation of acreage for housing-density purposes. After a hearing examiner decided for applicant Doug Nelson, neighbors pressed an appeal to the city council then to Kitsap County Superior Court, where a judge ruled for the city and the developer.

l Taurnic Place – Owners John and Marcia Belforte challenged the city’s open-space requirements on their in-town subdivision. After a suit was filed, the council approved much of what the developers wanted, and the court upheld the city’s actions. A claim for damages remains unresolved.

l Strawberry plant – After the old strawberry pier at the foot of Weaver Road burned to the waterline, owner Earl Miller claimed he had a grandfathered right to rebuild an over-water office structure. The city disagreed. A trial court ruled for Miller, but the court of appeals reversed, finding for the city.

l Fletcher Landing road-end – The city claimed a public right-of-way over a 40-foot-wide strip ending at the water on the island’s west side. Some 20 upland owners with deeded rights to the beach resisted, and the city filed suit. The trial court ruled for the city; neighbors say they will appeal.

l Wing Point road-end – The city also claimed a right-of-way to the end of Wing Point Way on the island’s east side. The case was settled in mediation, with the city getting a view corridor but otherwise abandoning its claim.

l Papa Murphy’s – After approving a take-and-bake pizza outlet in the Village shopping area, the planning department reversed the ruling under pressure from the council, and determined that the operation ran afoul of the city’s fast-food ordinance. The owner sued; the city settled the case, agreeing to grant the applicant a permit and pay $80,000 to his attorney for fees. The outlet was never opened.

l Charles Cole – After granting a permit to build a home near the Murden Cove shoreline, the planning department, under what former mayor Dwight Sutton later acknowledged was pressure from his office, reversed itself and ordered the applicant to obtain a shoreline development permit. Cole sued successfully to get his building permit; his claim for money damages is ongoing.

l Mark and Portia Nadler – Claiming the presence of a protected wetland, a neighboring couple sued the city and the county housing authority to block construction of one of four affordable homes in the Fort Ward area. The court ruled for the city and housing authority, and recently refused to reconsider that ruling. The case is subject to appeal.

Unresolved litigation includes:

l Homebuilders Association – The county builders association has filed three suits against the city, one to block a permit surcharge meant to fund affordable housing, one against a moratorium on new dock or bulkhead permits, and one against the current subdivision moratorium. All are pending.

l Jason Lowe – The former owner of what was then called the Winslow Landing project north of the ferry terminal sued to force the city to process his building permit, and for alleged damages for delays. With the project sold to new owners, the permit claim is moot and Lowe is no longer actively pressing the damage claim. But the case has not formally been dismissed, Kaseguma said.

l Lavon Enterprises – Larry Stutsman, owner of portions of the Winslow ravine and adjacent land, has sued the city for permission to develop a lot east of the ravine now used for parking. No decisions have been made on the recent action.

l Point White drainage – A Point White resident has recently sued the city, claiming water draining from upland areas has caused property damage. The suit has yet to go to trial.

l Neighborhood disputes – The city has been named as a co-defendant in two pending actions in which one neighbor is suing another. One case, at the island’s north end, involves responsibility for a landslide that damaged property. The other, in the Lynwood area, involves claims that a water tower was built too tall.

In the two actions unrelated to land use, the city joined with other governments to successfully challenge the constitutionality of two Tim Eyman initiatives.

Finance director Eells says both state law and the city code contribute to the spate of litigation.

“The Growth Management Act and state environmental laws give citizens certain rights that don’t exist in other states, and other provisions of state law give developers certain unusual rights concerning fees that can be charged,” he said. “And our ordinances contain confusing and sometimes contradictory provisions.

“The net result is that a lot of people in a lot of different situations have what they think are legitimate arguments that can be made.”

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