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State Legislature passes bill giving cities the right to enact shoreline moratoria
The state House and Senate have approved and forwarded a bill (HB 1379) to the governor that would allow municipalities to enact limited moratoria on shoreline development.
The bill is a direct result of a Bainbridge Island moratorium on shoreline development that was declared invalid by the State Supreme Court in 2007.
"This actually goes back to the Bainbridge Island case," said Rep. Larry Seaquist (D-26th Dist.), the Gig Harbor House member who co-sponsored the bill. "This is to clarify the State Supreme Court ruling about whether a city can impose a moratorium on building while they give the update to their Shoreline Master Program (SMP)."
In 2001, the City of Bainbridge Island enacted a controversial shoreline moratorium limiting shoreline construction while updating it's SMP.
A small group of shoreline homeowners, construction firms and building advocates filed suit against the city in a case that became known as Biggers v. the City of Bainbridge Island.
The case eventually went to the State Supreme Court, which agreed in a 5-4 decision that the city's moratorium was illegal.
However, the four dissenting justices, and one concurring justice, believed the city had the right to declare a moratorium while the SMP was being updated.
The city ultimately lost the battle because the swing justice felt the city was excessive in the time span of the moratorium – the city renewed and continued the moratorium, denying shoreline development applications for over three years. The moratorium expired in 2004.
Because of the conflicting nature of the issued opinions, lawmakers have taken it into their own hands to clarify the law, stating that municipalities have the right to enact moratoriums under the Shoreline Management Act (SMA).
"The (Supreme Court) decision left cities uncertain about if it was legal for them to impose this moratorium, the purpose is to resolve that doubt," Seaquist said. "We believe this will solve the legal problems."
In the language of HB 1379, "local governments may adopt moratoria or other interim official controls as necessary and appropriate," while updating their SMPs.
However, to adopt a moratorium, a municipality must hold a public hearing and adopt detailed findings of fact that include justification, proposed actions and expected outcomes of the moratorium.
The bill also states, "...all lawfully existing uses, structures, or other development shall continue to be deemed lawful conforming uses," and that they can "be maintained, repaired, and redeveloped, so long as the use is not expanded."
The moratoriums would last for periods of up to six months and could be renewed twice, for a total of 18 months. There is an additional clause that allows for a moratorium to continue for another six months after the updated SMP has been submitted to the State Department of Ecology for approval, making a two-year moratorium a possibility.
"I am not sure it is a power that needs to be used, I think it will continue be unusual for a municipality to use the moratorium," said attorney Dennis Reynolds, who represented the plaintiffs in the Biggers case. "(HB 1379) has some limitations... that was one of the state's concerns with (Bainbridge's) rolling moratorium – nothing was happening in terms of action plan updates."
Seaquist believes the bill will settle the problems the Supreme Court identified and help departments with permits that are pushed through prior to shoreline management updates.
"The Shoreline Management Programs have to be updated periodically and as the update approaches there is a gold rush of people trying to stuff projects through," he said.
Reynolds hopes the new powers would only be used in limited situations, and not the broad sweeping use that was seen on Bainbridge Island.
"The best use would be for emergencies," he said. "Like a failing septic system... and I can see their uses in discreet situations like that or for failures in infrastructure."
According to Bainbridge Island City Shoreline Planner Peter Namtvedt Best, the move by the House and Senate brings some vindication of the previous moratorium imposed by the city, although the bill is not retroactive.
"It's reassuring to know that the Legislature's intent upholds what we had done previously," he said. "We had that authority and they clarified what the courts had objected to – which was the duration of the moratorium."
The city is beginning to update its Shoreline Management Plan this year to meet a Dec. 1, 2011 deadline. Under state law, SMPs must be updated every seven years.
Shoreline land-use activists, such as the Bainbridge Shoreline Homeowners (BSH), are already wary about the proposed new regulations, and have postulated that another Bainbridge moratorium will be coming soon.
"If you are thinking about building or remodeling a house, outbuildings, bulkhead or dock, you should seek the advice of an experienced land use attorney to make sure that your interests are vested before a moratorium is enacted," said a recent BSH release.
However, according to Namtvedt Best, there has no discussion at that city about a future moratorium while the SMP is updated.
"There has been no discussion and no decision on another moratorium," he said.