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Dock settlement sparks outrage, lawsuit threats

But councilors say any regulatory changes will get full public airing.

The public threatened to sue, made accusations of illegal conduct, secrecy and backroom deals with developers – and yet the City Council did not bend.

Despite a torrent of criticism from residents gathered at City Hall Wednesday, the council authorized the payment of $250,000 to settle nearly a dozen lawsuits filed by Blakely Harbor property owners over a now-defunct moratorium on dock construction.

“I am disturbed where this city is heading as the greed of individuals dictates the rules of environmental protections,” said island fisheries biologist Wayne Daley, who is concerned that new docks in the harbor would reduce salmon habitat.

Bellevue and King County were recently sued for failing to enforce environmental regulations, and had to pay $6 million to take care of the damage, Daley told the council, adding, “You seem to fear lawsuits. Maybe you need to fear a new one.”

About $150,000 of the settlement would go to the claimants, while the remainder would provide improvement funds for Blakely Harbor Park. The settlement also stipulates that the council will consider code revisions allowing new “neighborhood docks” in the harbor.

Part of the city’s motivation for coming to terms with the claimants was to halt the hemorrhage of legal fees, which has cost the city over $200,000 during three years of defending the dock moratorium.

City Attorney Paul McMurray said “considerable resources were expended” in the city’s “vigorous defense” of the moratorium. But McMurray advised the council to consider approving the settlement agreement to avoid further legal battles, including pending lawsuits in United States District Court.

McMurray also said approval of the settlement does not necessarily mean a proliferation of docks in the largely undeveloped harbor, nor does it guarantee the ordinance will be amended.

“It’s not a foregone conclusion,” he said. “If that’s the perception of the public, it’s certainly not the case.”

As stipulated in the agreement, the city must “consider” amending the ordinance, possibly allowing docks shared by four or more shoreline residences. These docks must also meet federal, state and local laws and regulations and gain approval from the state Department of Ecology.

Jo Anne Hacker, one of the claimants against the city, assured those at Wednesday’s meeting that the geography of the harbor’s shore would only allow about 10 docks. That’s up from the two docks allowed under the current ordinance. Each new dock would be built with the environment in mind, Hacker added.

“Each individual takes the responsibility of protecting the harbor seriously,” she said.

Any proposed amendments to the ordinance allowing new docks must follow “an open public process with a required level of public participation,” according to city documents. This process, as stipulated in the settlement agreement, is limited to six months.

But former councilwoman Deborah Vann said she expects the council to pull a legislative slight-of-hand to get the amendments approved.

“I’m very, very skeptical,” Vann said Wednesday. “I think they’ll do a perfunctory meeting, but I’ve seen these people work. (councilors Bob) Scales, Nezam (Tooloee) and Debbie Vancil will do the minimum to pass it.”

Backroom?

Vann said that while still on the council, she participated in closed executive session meetings in which Scales, Tooloee and Vancil expressed their desire to rewrite the dock ordinance. Some of these sessions were conducted with developer Kelly Samson, who owns property on the harbor and is one of the key litigants against the city.

Vann also charged that some councilors falsely stated that the moratorium was only for docks in Blakely Harbor during the three years the ban applied to all island shorelines.

“You completely misled the public,” she told the council. “What we have now is a document that was drafted in secret meetings with Mr. Samson. I know that because I was on the council when this first began, and disagreed repeatedly, saying that we should not be discussing changing an ordinance in secret.

“It is underhanded and probably against the Open Public Meetings Act. It is also against the law to make misleading statements and to make payments of money based on false statements.”

Samson on Friday said only that his “opinion differs” from Vann’s.

The councilors named by Vann refuted her claims at Wednesday’s meeting. They also stressed that the process of negotiating the settlement followed approved city procedures.

“By law, we are not able to discuss litigation in public,” said Scales.

“We’ve heard a lot about the council working in secrecy,” said Vancil. “That’s a serious charge that all council members take seriously. In my experience, that never occurred.”

Vancil also predicted that any ordinance amendments would not mean a “proliferation of 40 or more” docks in the harbor. Rather, various government regulations and construction limitations would likely limit docks to under a dozen.

Tooloee said his support of the settlement is largely based on the need for new rules on dock construction relating to recent research on wildlife habitat.

“For me, this is not about litigation...it’s about policy,” he said. “New information has come to the surface that justifies that we reconsider the policy.”

The settlement could require a slew of policy updates, putting all related regulations up for review, according to the city’s planning director, Larry Frazier.

“I don’t know where this will lead us,” he said.

Vann said she’s willing to wager on harbor landowners winning in the end.

“I will bet money that we will see a rushed process to rewrite the law for Mr. Samson in the next few months,” she said. “These council members who support this have already written the changes and will simply ignore what the majority of the citizens who love this harbor want. The law we have is legal and is withstanding legal challenges.”

The ban

Rules restricting new docks in Blakely Harbor were initially established in August 2001. The city enacted an all-island ban a month later. The wider prohibition was scaled back in 2003 to Blakely Harbor exclusively.

Two lawsuits were filed by harbor property owners in 2003 challenging the validity of the moratoriums. The claimants prevailed in the first lawsuit at the Kitsap County Superior Court and in appeals but the case is currently pending before the Washington State Supreme Court. The city was successful in defending the moratorium in the second suit, prevailing in both the state Shoreline Hearings Board and the Thurston County Superior Court.

Additionally, the claimants filed nine lawsuits in U.S. District Court seeking monetary damages. These suits assert that the moratorium constituted an illegal “taking” of the claimants’ property and violated civil rights. The matter was set for trial early next year.

Some councilors who opposed the settlement’s approval in Wednesday’s 5-2 vote said the city should not let the fear of legal costs dictate policy.

“I don’t like the idea we’re driven by cost savings,” said Councilman Kjell Stoknes. “I’m not sure this is a cost issue here.”

Councilman Bill Knobloch agreed, adding that the harbor is an asset to more than just its shoreline residents.

“For us to cave into litigation doesn’t speak well of our democracy,” he said. “When you go before the man in the black robe and the gavel, you take a risk. It’s a crap shoot. But this is for the court to decide, not us.”

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Downtown bucks

The City Council on Wednesday authorized $2.77 million in bonds to pay for early stages of implementing the recommendations of the Winslow Tomorrow project. The city plans to use the funds to jump start design work and other planning to improve downtown streets and trails. With vigorous public endorsement, the council also approved funds for preliminary design of a downtown parking garage.

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