Shoreline ruling appealed; some left fuming

Attorneys for the city have given notice that they will appeal a judge’s decision striking down an island-wide moratorium on dock and bulkhead construction.

But the Bainbridge City Council may be willing to set the moratorium aside soon, except for Blakely Harbor.

“I am going to propose (Wednesday) that the council repeal the moratorium in two weeks, except in Blakely Harbor,” Councilman Michael Pollock said, “and I expect they will go along.”

The real objective, Pollock said, is to preserve the status quo until the city has an opportunity to adopt proposed dock limitations for Blakely Harbor.

To do so, the council may have to vote to extend a moratorium that has already been declared illegal by the court.

The problem is how to prevent new dock applications in Blakely Harbor, like the two applications that triggered the moratorium – adopted in August 2001 and extended three times since.

In a June ruling, Kitsap County Superior Court Judge Leonard Costello declared the moratorium illegal. He said that while some state land-use statutes allow such freezes, the Shoreline Management Act does not.

Moreover, he ruled that some docks and bulkheads are exempt from regulation by state statute. The city’s freeze, he said, violates state law by attempting to limit something that state law specifically permits.

But technical legal rules have prevented Costello’s decision from taking effect. First, he needed to sign a judgment formally confirming his ruling, which did not occur until last week. State law automatically suspends the operation of that decision for five days, a time period extended to 14 days if a notice of appeal is filed, which the city’s attorneys did Monday.

And the city is apparently arguing that the ruling is not effective at all until after the appeal is finally resolved, a process that could take a year or more.

Meanwhile, the city is refusing to accept any applications for new docks or bulkheads, a stance that has some islanders fuming.

“I called last week and they said they wouldn’t accept applications until Tuesday, then they said they wouldn’t be accepting them then,” said Katherine Kennedy of Manitou Beach Road, who wants to build a bulkhead to prevent further undercutting of the bluff on her high-bank waterfront home.

Kennedy, an attorney, said she has written letters to the mayor and to council members asking for a meeting to try to work out the problem, but has received no response.

“They are treating the citizens with disdain,” she said.

But Costello’s ruling is only part of the issue. By state law, moratoriums are limited in time, and the current one expires Sept. 1, meaning the council will either have to extend it in the face of Judge Costello’s legal ruling, at least for Blakely Harbor, or accept dock and bulkhead applications.

The latter course of action could frustrate efforts currently under way to ban or at least sharply limit new docks in Blakely Harbor.

At tonight’s meeting, the council will consider two different limitations, both of which appear to have considerable public support.

One alternative would ban all future Blakely docks, but would allow one public dock somewhere in city-owned Blakely Harbor Park.

The other version would not permit a public dock in the park, but would permit two community docks elsewhere – one on the north and one on the south shore, for the use of harbor homeowners.

Either of those proposals would require approval from the state Department of Ecology, which is expected to require several months.

“That is really why we need a moratorium, to give the DOE time for review and approval,” Pollock said.

Council chair Christine Nasser Rolfes said the notion of passing an extension ordinance in the face of Costello’s decision is not particularly attractive, but may be unavoidable.

“We haven’t really figured out what we’re going to do,” she said.

Seaborn Road resident Kim Bottles – whose ultimately successful application for a dock triggered the island-wide moratorium, but who was not affected by it – said that before tying itself in legal knots, the city should determine whether area residents would simply agree to a dock ban.

“Given the opposition to my recent dock project, I would have to believe there are many harbor residents who would willingly give up their dock rights on a voluntary basis,” he wrote in an email to the mayor and council.

Bottles predicted that all but two or three Blakely Harbor residents would either donate or sell any dock rights that they may have, and suggested the city try that approach before continuing with further legal action.

“People generally feel much better when issues are resolved in a cooperative manner,” he wrote. “We already have had more than enough litigation on this island over land use issues. Here is a chance to avoid more.”

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