Preserving non-city gets more difficult

For the last decade or more, since all-island cityhood and the passage of the state’s Growth Management Act, Bainbridge Island has lived in a legal limbo.

Legally, we are a city. But in our hearts, there’s still a good bit of country, wanting as we do our farms, fields and trees.

This “countrified” city is a difficult entity to nurture under the GMA, which has the stated purpose of putting people in cities – or at least into “Urban Growth Areas” – in order to minimize the intrusion into non-urbanized countryside.

When the GMA says “rural,” it means it – our “semi-rural” large-lot developments don’t cut it. (There are even those who term our one-acre or two-and-a-half-acre zoning as “sprawl.”) On the other hand, “cities,” as we chose to be, are places where people are supposed to live in numbers.

When the paradox of a city trying to be rural was pointed out to the Growth Management Hearings Board, it said, basically, “okay for now.” As long as Bainbridge can accommodate its projected growth, the board said, it could maintain its relatively low density in the areas outside of Winslow.

But the board warned the city against over-reliance on large-lot zoning, lack of sewer and water service, and lack of rights-of-way for additional roads; if push ever came to shove, it said, Bainbridge would have to abandon its “rural” trappings and start looking more like a real city.

Last week, the state Supreme Court put another obstacle in the path we have chosen, declaring that mandatory open-space setasides constitute an indirect form of taxation. Such requirements are permissible only to compensate for specific impacts caused by a specific development – a test that cannot be met, the court said, by a straight percentage requirement.

Potentially, that ruling appears to jeopardize this city’s requirement for open space in most subdivisions. Like the case at issue, the Bainbridge open-space requirements are based on simple percentages – from 40 percent to 80 percent, depending on the underlying zoning – for the stated purpose of preserving “the natural character of the city.”

There may be differences between the Bainbridge program, which generally leaves title to such setasides in private hands, that could make the case inapplicable. And it’s certainly unclear whether a developer could sue over an island subdivision that has already been approved.

But there is an underlying message that city decision-makers need to keep in mind, which is that, like it or not, property owners have certain rights. Those rights are subject to restrictions in the name of safety, health and general welfare – categories that including environmental health and zoning rules. But the sphere or regulation is finite, and it is questionable whether community aesthetics, no matter how widely shared, trump property rights, at least in the eyes of the court. That’s especially true where our objective of maintaining “the natural character of the city” may be a legal oxymoron.

We see much potential here for rash action – a moratorium while the city while it figures out its next move, or a lawsuit by building interests – when cool heads are needed.

All parties should remember that our “rural” city is a glass house in which we all live. Throwing stones could leave us all exposed.

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