Council extends Blakely dock ban

Questions about ban’s legality persist as an island-wide moratorium expires.

The City Council narrowed the area of engagement but girded for another legal battle Wednesday night when it voted to continue until March 2004 a moratorium on new docks in Blakely Harbor.

It allowed the moratorium to lapse for the rest of the island on Sept. 1, meaning that new dock and bulkhead applications will be accepted beginning Tuesday morning.

“We should reduce the extent of the moratorium to Blakely Harbor, which was the original intent when we passed it,” said council member Michael Pollock.

The council enacted the moratorium in August of 2001 after two applications were filed for new docks in Blakely Harbor, which at that time had only five overwater docks or piers.

Rather than limit the geographic extent of a moratorium to Blakely Harbor, though, the council made the moratorium island-wide to preserve the status quo while the planning department conducted a comprehensive assessment of near-shore conditions, a predicate to making possible changes in shoreline regulations aimed at protecting salmon.

But changes in the shoreline regulations aren’t expected until sometime in 2005, in part because of the requirement for state approval. And council members were not willing to continue the island-wide moratorium that long.

“Re-doing the master plan for the whole island is taking more time than we thought,” said council member Lois Curtis. “Lifting the moratorium on the rest of the island is the right and fair thing to do.”

The council also heard public testimony on a proposal to ban all new single-user docks in Blakely Harbor, but referred the matter back to the land-use committee for further deliberations.

“You can feel justified in making this decision by knowing you are sustaining the bay (Blakely) for a large number of people, not just on the island but around the region,” said Rachel Smith of Seaborn Road, the only Blakely Harbor resident to speak in favor of a dock ban.

Carol Winston, another Seaborn Road resident, didn’t agree.

“I do have a right to a dock. It’s in my deed,” she said. “I hope you are committed to defending your right (to ban docks) in court.”

The council is considering two ordinances, one allowing a public dock in Blakely Harbor Park, the other proposing a private community dock on each shore. Both would continue the ban on new single-user docks.

Country Club Road resident Tom Morgan endorsed the idea of joint-use docks, but said the city should not set a numerical limit.

“Residents won’t agree to that prohibition,” he said. “Instead of limiting the number of joint-use docks, develop a set of objectives and let the residents work out the details.”

While the council wrestles with the issue – a process some members said could require significant deliberation – it must rely on the moratorium to prevent new dock applications that could become vested under present law. That law subjects dock applications to environmental review, but does not flatly prohibit docks in Blakely Harbor or anywhere else.

Such reliance may be problematic. In June, Kitsap County Superior Court Judge Leonard Costello declared the island-wide moratorium illegal, ruling that the state shoreline law, unlike other land-use laws, does not give a city the right to impose a freeze. That rationale would appear to apply equally to a geographically limited moratorium.

The city filed a notice that it is appealing Costello’s decision, then filed a unilateral notice declaring Costello’s ruling stayed, or suspended, until the issue is decided by the appellate court, a process that will take at least a year and probably longer.

But the Seattle lawyers who challenged the island-wide ban don’t believe the city’s unilateral declaration of a stay is effective. They say the city must ask either Judge Costello or the court of appeal to put a stay into effect, a matter within either court’s discretion.

“We have filed a motion to strike the stay, and hope to have it heard on Sept. 8,” said Traci Shallbetter of Davis Wright Tremaine in Seattle, who worked with Dennis Reynolds of the same firm challenging the city’s shoreline moratorium on behalf of the county home builders’ association.

In order to get a discretionary stay, she said, the city will have to demonstrate that it has at least a debatable issue on appeal, and that the harm from allowing new dock applications will exceed the harm from continuing a ban.

Reynolds and Shallbetter spoke at a Tuesday forum on shoreline-owner rights sponsored by Bainbridge Concerned Citizens, which drew a full house to the Commons.

Shallbetter said a Blakely dock ban will keep the issue in court.

“We have clients who do want to apply for a dock in Blakely Harbor,” she said.

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