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City mulls Blakely dock ban

If ordinances were simply a matter of reflecting the desires of the majority, there is little doubt that no more docks would be allowed in Blakely Harbor.

But whether a proposal to ban new docks on the quiet harbor is legal is another question, and nobody seems quite sure how it would be resolved.

“We have a right to ask the state, and to see how the Department of Ecology responds,” said Larry Frazier, interim planning director for the city.

Attorney Dennis Reynolds, who frequently represents challengers to island land-use ordinances, is equally equivocal.

“I think the city can ban docks for reasons of critical habitat, such as the presence of eelgrass beds,” he said, “but I question whether the city can ban docks in an entire harbor for aesthetic reasons.”

In the wake of Kitsap Superior Court Judge Leonard Costello’s ruling last month striking down the city’s moratorium on some shoreline construction, the city planning staff has proposed an ordinance that would simply ban new docks in Blakely Harbor.

The proposal drew strong support from south-end residents at last week’s meeting of the City Council’s land-use committee, and from committee members themselves.

The ban is warranted, proponents say, because the harbor is relatively undeveloped, with only five existing docks.

Additional docks could dramatically obstruct views from Blakely Harbor Park, impair navigation, and reduce the area available for anchoring in the popular harbor.

South Bainbridge Community Association president Iver Macdougall, a retired attorney, submitted a position paper saying that the ban supports “the paramount public interest” protected by the state’s Shoreline Management Act, and should therefore be permissible.

The ordinance to ban new Blakely docks is actually an amendment to the city’s Shoreline Master Program, and as such, it would need to be approved by the state Department of Ecology.

“The shorelines are regulated by the state. We are their administrative agents,” Frazier said.

He said the legality of the ordinance would be for the state to determine.

The question, Reynolds said, involves the degree of local autonomy available under a state statute that gives upland property owners a broad right to build a recreational dock, but subjects that right to “applicable local, state, and federal rules and regulations governing location, design, construction, size, and length of the dock.”

While that provision gives localities considerable sway, Reynolds said it may stop short of permitting an outright ban.

Meanwhile, though, Blakely Harbor will likely get one additional dock, as the city has settled its long-running dispute with Seaborn Road residents Kim and Susan Bottles, who had applied to place a low-profile floating dock off their property on the north side of the harbor.

Kim Bottles uses a boat for his daily commute, and the couple said they bought the property on the assurance that there was no prohibition on new docks.

The Bottles’ application and one other on the south shore of Blakely Harbor were instrumental in prompting the island-wide moratorium on new docks and bulkheads struck down last month. But the applications were not affected because they were filed before the moratorium took effect.

Despite a contrary recommendation from the Planning Commission, former planning director Stephanie Warren approved the Bottles application, but limited the length of the dock and required that it be removed from the water during certain spring months during salmon activity.

The city hearing examiner overturned the removal, but retained the length restriction, prompting the Bottles to appeal to the state Shoreline Hearings Board. The Bottles also claimed money damages.

Under the tentative settlement, the Bottles basically get the dock they want, to a length that will give them four feet of water, plus a “token” payment of $9,000, and release the city from further claims, according to City Administrator Lynn Nordby.

The settlement means the Shoreline Hearings Board will not decide the legality of a dock ban in the Bottles case, a ruling that could have determined whether the island’s presently proposed ban is legal.

“It will not set any precedents,” said Reynolds, who represented the Bottles.

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