Biggers v. City of Bainbridge Island

• Decision Date: 21 December 2004
• Docket Number: No. 30752-9-II.,30752-9-II.
• Citation: 124 Wn. App. 858,103 P.3d 244,124 Wash. App. 858
• Parties: Ray and Julie BIGGERS, husband and wife; Andy Mueller d/b/a Mueller Construction and Andy Mueller, individually; Craig and Sandy Powell, d/b/a Sealevel Bulkhead Builders; and Home Builders Association of Kitsap County, Respondents, v. CITY OF BAINBRIDGE ISLAND, Appellant.
• Court: Washington Court of Appeals

103 P.3d 244

124 Wn. App. 858

124 Wash. App. 858

Ray and Julie BIGGERS, husband and wife; Andy Mueller d/b/a Mueller Construction and Andy Mueller, individually; Craig and Sandy Powell, d/b/a Sealevel Bulkhead Builders; and Home Builders Association of Kitsap County, Respondents, v. CITY OF BAINBRIDGE ISLAND, Appellant.

No. 30752-9-II.

Court of Appeals of Washington, Division 2.

December 21, 2004.

Dawn Linette Findlay, Inslee Best Doezie & Ryder PS, Bellevue, WA, Stephanie Ellen Croll, Keating Bucklin & McCormack Inc PS, Seattle, WA, for Appellant.

Traci Lyn Shallbetter, Dennis Dean Reynolds, Davis Wright Tremaine LLP, Seattle, WA, for Respondents.

HOUGHTON, P.J.

The City of Bainbridge Island (City) appeals from a trial court order lifting its moratorium on certain shoreline development. We affirm.

FACTS

Forty-five miles of waterfront surround the City. Numerous homes and businesses sit along its shoreline and the area teems with wildlife.

In 1996, acting under the Shoreline Management Act of 1971 (SMA), the City adopted its Shoreline Management Master Program (SMP). At that time, City staff recommended to the City Council's Operations Committee that it place a "temporary nearshore moratorium for all applications for Shoreline Substantial Development Permits and Shoreline Substantial Development Exemptions until the adoption of a revised Shoreline Master Program and Critical Areas Ordinance in late August 2002." Clerk's Papers at 414. The City's SMP did not authorize imposing a moratorium on development and it allowed property owners to apply for permits to build piers, docks, floats, and bulkheads.

On August 22, 2001, the City enacted Ordinance No.2001-34, which imposed a moratorium through September 1, 2002, to preserve the status quo. On October 10, 2001, after holding public hearings and acting under RCW 35A.63.220 and RCW 37.70.390, the City enacted Ordinance No.2001-45, which placed a restriction on applications for new overwater construction (piers, docks, floats) and new shoreline armoring (bulkheads and revetments) because these structures had the "greatest potential to impact shoreline habitat." CP at 19.

Business owners and private citizens¹ (Citizens) sued for a declaratory judgment invalidating Ordinance No.2001-45. On August 14, 2002, after a public hearing, the City enacted Ordinance No.2002-29 and extended the moratorium through March 1, 2003. In response, the Citizens amended their complaint to include Ordinance No.2002-29.²

Both sides moved for summary judgment on the moratorium's validity. The trial court issued a memorandum decision in which it determined that: (1) the moratorium was not valid as a de facto amendment to the City's SMP; (2) the City did not have implied authority to impose the moratorium under the SMA; and (3) even if the City had implied authority, its moratorium was invalid because it was an unconstitutional violation of Washington Constitution article XI, section 11 as a local law in conflict with the state's general laws. The trial court entered an order granting the Citizens' motion and the City appeals.

ANALYSIS

In reviewing an order granting summary judgment, we engage in de novo review, taking all facts and inferences in the light most favorable to the nonmoving party. Boag v. Farmer's Ins. Co., 117 Wash.App. 116, 121, 69 P.3d 370 (2003).

We begin by noting that shoreline development commenced after June 1, 1971, must conform with the SMA and local government shoreline master programs.³ Buechel v. Dep't of Ecology, 125 Wash.2d 196, 203, 884 P.2d 910 (1994); Bellevue Farm Owners Ass'n v. State of Wash. Shorelines Hearings Bd., 100 Wash.App. 341, 350, 997 P.2d 380, review denied, 142 Wash.2d 1014, 16 P.3d 1265 (2000). The SMA seeks to protect fragile shorelines through appropriate utilization, protection, restoration, and preservation. RCW 90.58.020; Bellevue Farm Owners Ass'n, 100 Wash.App. at 350, 997 P.2d 380. We construe the SMA broadly to serve its underlying purpose of protecting and fostering proper use. RCW 90.58.020; Bellevue Farm Owners Ass'n, 100 Wash.App. at 350, 997 P.2d 380 (quoting RCW 90.58.020).

Standing

The City first contends that two of the Citizens lack standing and their claims must be dismissed. The City asserts that the moratorium ordinances do not directly affect Sealevel Bulkhead Builders, Inc. or Home Builders Association of Kitsap County (HBA) and that they cannot seek a declaratory judgment.⁴

The Citizens sought a declaratory judgment regarding the validity of the ordinance. The Uniform Declaratory Judgments Act allows a party to ask the court to determine an enactment's authority. Chapter 7.24 RCW; Superior Asphalt & Concrete Co. v. Dep't of Labor & Indus., 121 Wash.App. 601, 605, 89 P.3d 316 (2004). To claim standing, a party must allege a justiciable controversy based on allegations of substantial, rather than speculative or abstract, personal harm. Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wash.2d 791, 802, 83 P.3d 419 (2004); Superior Asphalt, 121 Wash.App. at 605-06, 89 P.3d 316.

Washington uses a two-part test to determine standing in a declaratory judgment action. Grant County Fire Prot. Dist., 150 Wash.2d at 802,83 P.3d 419. First, the interest to be protected must arguably fall within "`the zone of interests to be protected or regulated by the statute ....'" Grant County Fire Prot. Dist.,150 Wash.2d at 802,83 P.3d 419 (citation omitted). Second, the action challenged must have caused "injury in fact." Grant County Fire Prot. Dist.,150 Wash.2d at 802,83 P.3d 419; Save a Valuable Environment (SAVE) v. City of Bothell, 89 Wash.2d 862, 866-67, 576 P.2d 401 (1978).

A justiciable controversy is an actual and not hypothetical dispute. Superior Asphalt, 121 Wash.App. at 606, 89 P.3d 316. A justiciable controversy exists if the parties have direct and substantial opposing interests in the dispute requiring a final and conclusive judicial determination. Superior Asphalt, 121 Wash.App. at 606, 89 P.3d 316.

Applying these criteria here, we first ask whether Sealevel and HBA have interests within the ordinance ambit. We agree that they do. The SMP protects the City's shoreline development. The City passed the moratorium intending to evaluate its shoreline development in order to plan for and prevent further shoreline deterioration. Thus, the moratorium seeks to protect the City's shoreline as required by the SMA. As such, the moratorium controls Sealevel's and HBA's island-based business opportunities.

Next, we must ask whether the moratorium causes Sealevel and HBA harm that is not speculative or abstract. SAVE, 89 Wash.2d at 866, 576 P.2d 401. Both Sealevel and HBA engage in land development and shoreline construction in the City. The record indicates that many HBA members, individually and collectively, will be specifically and perceptibly affected by the moratorium as it affects their personal and business interests. Under these legal tests, Sealevel and HBA have standing.⁵

Validity of the Moratorium

The City contends that the trial court erred in deciding that the City had no express or implied authority to impose the moratorium and that the moratorium conflicts with the state's general laws in violation of our state constitution. It asserts that RCW 35A.63.220 and RCW 36.70A.390 grant it broad authority to impose the moratorium.

A city exists and derives its authority and power from the state constitution and the legislature. "It has neither existence nor power apart from its creator, the legislature, except such rights as may be granted to municipal corporations by the state constitution." City of Spokane v. J-R Distrib., Inc., 90 Wash.2d 722, 726, 585 P.2d 784 (1978).

The City argues that it retains broad authority to impose a moratorium ordinance under RCW 35A.63.220 and RCW 36.70A.390.⁶ We disagree.

RCW 35A.63.220 provides:

A legislative body that adopts a moratorium ... without holding a public hearing on the proposed moratorium ... shall hold a public hearing on the adopted moratorium ... within at least sixty days of its adoption, whether or not the legislative body received a recommendation on the matter from the planning agency. If the legislative body does not adopt findings of fact justifying its action before this hearing, then the legislative body shall do so immediately after this public hearing. A moratorium ... adopted under this section may be effective for not longer than six months, but may be effective for up to one year if a work plan is developed for related studies providing for such a longer period.

A moratorium... may be renewed for one or more six-month periods if a subsequent public hearing is held and findings of fact are made prior to each renewal.

The moratorium authority derived from RCW 35A.63.220 is limited to planning and zoning in code cities. It does not grant the City authority in this case because ordinances involving shoreline master programs and shoreline management regulations do not fall within the definition of zoning. Sammamish Community Council v. City of Bellevue, 108 Wash.App. 46, 55 n. 2, 29 P.3d 728 (2001), review denied, 145 Wash.2d 1037, 43 P.3d 21 (2002).

Similarly, RCW 36.70A.390 provides:

A county or city governing body that adopts a moratorium ... without holding a public hearing on the proposed moratorium... shall hold a public hearing on the adopted moratorium... within at least sixty days of its adoption, whether or not the governing body received a recommendation on the matter from the planning commission or department. If the governing body does not adopt findings of fact justifying its action before this hearing, then the governing body shall do so immediately after this public hearing. A moratorium ... adopted under this section may be effective for not longer than six months, but may be effective for up to one year if a work plan is developed for related studies providing for such a longer period. A moratorium ... may be

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