Lawsuit loss will cost city

One plaintiff sets the penalty at $100k.

The failed defense of an island-wide moratorium on dock and bulkhead construction could cost the city around $100,000 in legal fees.

The state Court of Appeals on Dec. 21 upheld a 2003 lower court decision striking down the moratorium, and directs the city to cover “reasonable attorney fees and costs” incurred by the citizens who brought suit on the city.

Andy Mueller, an island contractor, initiated the legal challenge, and estimates that he and the five other plaintiffs are owed approximately $100,000.

“It’s a pretty hollow victory,” Mueller said. “That money’s coming out of my tax dollars anyway. The city seems to have had earmuffs on. They were getting bad legal advice, because this is a right we should have had anyway.”

The final amount has not been determined, but city staff estimates are lower.

“We haven’t gotten a bill, but we expect it will be the same as the city’s fees,” said city Administrator Mary Jo Briggs, saying the city may have to pay about $15,000. While much lower than Mueller’s figure, Briggs said the penalty is still a “significant amount” for the city.

The City Council could recommend appealing the judgment, she said, but no course of action has been discussed yet.

“To tell you the truth, we haven’t talked about it yet because it’s been Christmas, but the council may want to review it after the first of the year,” Planning Director Larry Frazier said.

Mueller, island residents Ray and Julie Biggers, Craig and Sandy Powell and the Home Builders Association of Kitsap County brought suit against the city, arguing that the moratorium unfairly restricted property rights.

The council enacted the moratorium in 2001 while the planning department conducted an assessment of shoreline conditions and deliberated on possible new regulations to preserve salmon.

After a court battle in another jurisdiction, the federal mandate was rescinded. After a contentious series of Planning Commission hearings on possible new regulations on Bainbridge shorelines, the issue was punted to the council and eventually was postponed.

“It was to protect salmon habitat from being further degraded and to avoid a rush on permits prior to new regulations,” planner Peter Namtvedt Best said.

But frustrated homeowners argued that the shoreline restrictions illegally infringed on their rights. Kitsap County Superior Court Judge Leonard Costello agreed, ruling in mid-2003 that the moratorium violated the state Constitution.

Costello found that while some state land-use statutes permit building freezes, the Shoreline Management Act does not.

The city immediately appealed the decision while narrowing the moratorium to Blakely Harbor, where restrictions on the construction of new docks was by that time under consideration.

The council allowed the moratorium to expire in March, after the DOE approved new city restrictions on docks on the harbor.

But the city held firm to its appeal despite allowing the moratorium to expire, unsuccessfully arguing that local government moratoriums are protected under the Growth Management Act.

Judge Elaine Houghton found in her decision that the GMA clearly specifies that the Shoreline Management Act governs shoreline development.

“The SMA trumps the GMA in this area, and the SMA does not provide for moratoria on shoreline use or development,” she wrote in the ruling.

Mueller said the city overstepped its legal boundaries despite local opposition and obvious contradictions with state guidelines.

“It’s clear the city gets its authority from the Legislature and the state Constitution,” he said. “The City Council needs to make a note of that and put it up on the wall behind them. They need to know this is not the People’s Republic of Bainbridge Island.”

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