Judge smites shoreline moratorium

Saying the city exceeded its legal authority, Kitsap Superior Court Judge Leonard Costello this week invalidated Bainbridge Island’s moratorium on new dock and bulkhead construction.

“Because the legislature has authorized the use of moratoria in other similar land development statutes and it did not include such authority in the Shorelines Management Act, no such authority can be implied by local governments,” Costello wrote in his decision.

The moratorium had been challenged in a lawsuit by island builder Andy Mueller, a bulkhead-building company and the Kitsap County Homebuilders Association.

Mueller said Friday he will be satisfied when the moratorium is officially lifted – that awaits the judge’s signed order, or an appeal by the city – and described the ban on some shoreline construction as “a gross overreaction” by the council.

“The principal issue for me is that this community worked long and hard to develop a shoreline master program, (which) was a long, difficult battle, and this community pulled together and did a pretty good job,” Mueller said. “Then this city council comes in and decides they want to redo it.”

Costello found that even if the city did have authority to enact a moratorium on “substantial” shoreline activities, it could not extend the moratorium to bulkheads for single-family residences or to docks costing less than $5,000.

State law specifically excludes those from the definition of “substantial,” he ruled.

The moratorium was imposed by the Bainbridge City Council in November 2001, when it appeared that the city would have to comply with new federal regulations for the protection of salmon.

After a court battle in another jurisdiction, those federal regulations were withdrawn. But work on Bainbridge regulations continued, leading to a contentious series of Planning Commission meetings last year over shoreline vegetation and other issues.

The question of shoreline regulation was punted to the council, but it’s unclear when they will take up the issue.

In the meantime, the moratorium has been extended twice.

Council chair Christine Rolfes said Friday she was disappointed by Costello’s decision.

The council will meet with attorneys for the city next week, in part to determine whether to appeal, she said.


Immediately upon hearing of the decision this week, Manitou Park Boulevard resident Katherine Kennedy and husband Alfred Kitching went to City Hall to file an application to build a bulkhead.

“We don’t know what the city has in mind for the future, so we wanted to get an application on file so that we would vest under current law,” said Kennedy, a lawyer.

But, she said, they were told that the department would not accept their application until city officials consulted with legal counsel about the Costello ruling.

Kennedy left the application with the planning department anyway, along with a check for the $900 permit processing fee, “which should show that we made an honest attempt to file it” should the matter come to litigation.

Kennedy’s house and those of her neighbors sit on a high bank, which she said is being undercut by wave action from relatively open stretch of Puget Sound.

“We bought our house in 2000, and we’re the only one without a bulkhead,” she said. “There was a toe there from a slide in 1997 that we thought would give us some protection, but that has completely disappeared, and there has been some undercutting of the bluff.”

Water is getting behind neighboring bulkheads and beginning to damage them as well, she said.

Kennedy’s house is some 65 feet from the bluff’s edge and is in no immediate danger, but she said the septic system is close to the edge and could be compromised.

It’s unknown how many other bulkhead and dock permits have been held up by the moratorium.

Costello’s decision won’t become final until he signs a formal order, which he indicated he would do upon presentation by attorneys. At that point, the city would have to abide by the ruling or ask Costello to stay the ruling pending appeal.

“I doubt the court will stay the ruling. That is a pretty difficult threshold,” said Dennis Reynolds, attorney for the challengers.

Lifting the moratorium will also allow applications for new docks in Blakely Harbor, Reynolds said, even though the city Planning Commission has recommended that the harbor be kept dock-free.

“That recommendation may be part of the city’s new shoreline master program, and we would address that at a future time, but at the moment, applications for those docks would have to be accepted,” he said.

An important aspect of the decision is Costello’s declaration that shoreline regulation is principally a matter of state rather than local regulation. That logic could also apply to the division of land, and call into question the city’s current subdivision moratorium, also the subject of litigation.

“We want to sit down with the city and talk about that in light of the shoreline decision,” Reynolds said. “If we can’t come to some sort of understanding, we will have to ask the court for a decision in that case.”

Looking beyond the moratorium, Mueller said that any subdivision ordinance that includes open-space requirements will itself face a legal challenge.

“We’re just dying to get this before the courts,” he said. “The city is just wasting taxpayers’ dollars messing with this thing.”

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