More candor, please, about legal risks

Last month, a Superior Court judge declared the city’s shoreline moratorium illegal. Last week, the city’s attorneys gave notice that the city will ignore that

decision until the case has been decided on appeal, which will take at least a year, probably more than two years. The city will continue refusing to accept new dock and bulkhead applications during that period.

Next week, the City Council will consider extending the moratorium, which would otherwise expire on its own. The council will also hold a hearing on a subdivision ordinance that calls for a 30 percent setaside of private open space, and will consider an outright ban on future private docks in Blakely Harbor.

In each instance, serious questions have been raised about whether the city’s actions are legal.

l Land-use attorney Dennis Reynolds says the city can’t stay a judge’s decision unilaterally, but rather must file a motion with the court asking for a stay, and demonstrate that a stay would do less harm than putting a decision into effect. Reynolds – counsel for the moratorium’s foes – says he has litigated that specific issue in another county, and prevailed.

l The 30 percent open-space requirement is the same

setaside the Washington Supreme Court struck down last year. The city justifies its requirement on the basis of a community-wide study, but others aren’t sure the study meets legal tests.

l Even before action is taken, attorneys have both denounced the proposed Blakely dock ban as illegal and a “taking” of private property, and defended it as necessary to fulfill the mandates of the state Shoreline Management Act, which says shorelines are to be managed in the public interest. Privately, though, even some who favor the dock ban concede that it involves unresolved legal questions.

In none of these cases is the city taking (or considering) a clearly illegal course of action. But the actions aren’t clearly legal, either.

What can be said with some certainty is that each action will prompt more litigation against the city. And should that happen, it can be said with absolute certainty that it will be expensive.

Unquestionably, each of the actions at issue is legally defensible in the sense that a supporting argument can be made in good faith. But “legally defensible” covers a lot of territory, from virtual certainty down to barely colorable. We sometimes wonder whether the council appreciates the gradations involved.

More to the point, we think the risk vs. benefit calculations must, in some fashion, be shared with the public. Attorney-client privilege might prohibit a disclosure of how the lawyers weigh a course of action. But we see no reason why the council couldn’t and shouldn’t publicly categorize the risks of adverse court action in broad terms such as “negligible,” “moderate” or “significant,” and then say that, nevertheless, they believe that the benefits to the community justify the action, or that the risks warrant inaction.

Council members sometimes argue that the risk of lawsuits should not deter them as they make decisions. In some circumstances, the citizenry would agree; in others, likely not.

Either way – particularly with elections near at hand – the council owes it to voters to explain their thinking. They will decide whether to put the city at legal risk, and it’s fair to judge them accordingly.

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