Biggers v. City of Bainbridge Island

• Decision Date: 11 October 2007
• Docket Number: No. 77150-2.,77150-2.
• 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, Inc., and Home Builders Association of Kitsap County, Respondents, v. CITY OF BAINBRIDGE ISLAND, Petitioner.
• Court: Washington Supreme Court

169 P.3d 14

162 Wn.2d 683

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, Inc., and Home Builders Association of Kitsap County, Respondents, v. CITY OF BAINBRIDGE ISLAND, Petitioner.

No. 77150-2.

Supreme Court of Washington, En Banc.

Argued March 16, 2006.

Decided October 11, 2007.

Stephanie Ellen Croll, Michael Charles Walter, Keating Bucklin & McCormack Inc PS, Jay Palmer Derr, Gordon Derr LLP, Peter L. Buck, The Buck Law Group, Seattle, WA, Dawn Findlay Reitan, Inslee Best Doezie & Ryder PS, Rosemary Anne Larson, Attorney at Law, Bellevue, WA, for Petitioner.

Dennis Dean Reynolds, John E. Keegan, Davis Wright Tremaine LLP, Seattle, WA, Traci Lyn Shallbetter, Shallbetter Law, Cle Elum, WA, for Respondents.

Daniel Brian Heid, City of Auburn, Auburn, WA, Milton G. Rowland, Foster Pepper PLLC, Spokane, WA, Amicus Curiae on behalf of Washington State Association of Municipal Attorneys.

Russell Clayton Brooks, Pacific Legal Foundation, Bellevue, WA, Andrew C. Cook, Building Industry Association of Washington, Olympia, WA, Amicus Curiae on behalf of Building Industry Association of Washington, Washington Association of Realtors and Pacific Legal Foundation.

Hilary S. Franz, Hilary S. Franz, Attorney at Law, Bainbridge Island, WA, David Alan Bricklin, Bricklin Newman Dold LLP, Seattle, WA, Amicus Curiae on behalf of Washington Environmental Council.

Laura Colthurst Kisielius, Civil Division, Snohomish County Prosecutor's, Everett, WA, Amicus Curiae on behalf of Snohomish County.

Thomas J. Young, Katharine G. Shirey, Attorney General's Office, Ecology Division, Alan D. Copsey, Office of the Atty. General, Olympia, WA, Amicus Curiae on behalf of Washington Department of Ecology and Washington State Dept. of Community Trade & Economic Development.

J.M. JOHNSON, J.

¶ 1 Today, we review the Bainbridge Island City (City) Council's adoption of rolling moratoria, which imposed a multi-year freeze on private property development in shoreline areas. The City denied the processing of permit applications for more than three years. There is no state statutory authority for the City's moratoria or for these multiple extensions. Clearly, this usurpation of state power by the local government disregards article XVII, section 1 of the Washington Constitution, which expressly provides that shorelines are owned by the state, subject only to state regulation. The City is not authorized to adopt moratoria on shoreline development arising out of its police powers under article XI, section 11 of the Washington Constitution, which limits local government to regulation "not in conflict with general laws." Thus, we affirm both the trial court and the unanimous Court of Appeals decision invalidating the ordinances.

SUMMARY OF THE CASE

¶ 2 The ultimate subject of this lawsuit is the construction of shoreline structures designed to protect the land of shoreline property owners. These structures are, by definition, improper subjects for city-issued moratoria because inaction leaves all shoreline property defenseless against erosion. See e.g. RCW 90.58.020 (calling for effective and timely protection for the shorelines of single family residences).¹ Despite the clear violation of property owners' rights, the City embraced the moratoria as a means to refuse consideration of any permit applications, thereby deferring difficult development decisions.

¶ 3 Under the City's scheme, suspension of the application process left private property owners to bear the costs associated with this denial of process (including property erosion and economic loss).² See W. Main Assocs. v. City of Bellevue, 106 Wash.2d 47, 51-52, 720 P.2d 782 (1986) (noting the costs to society where property owners cannot plan developments with reasonable certainty). Clearly, the City's procrastination resulted in a physical degradation of these private owners' property without any direct cost to the City.

¶ 4 In its defense, the City argues that the moratoria were necessary to allow time to update its Shoreline Master Program (SMP). This argument is undercut by an inconvenient truth: the relevant statutes do not require the SMP to be updated until December 1, 2011. RCW 90.58.080(2)(a)(iii). It is unclear whether the City planned to ban applications until 2011, thereby allowing erosion damage to continue unabated for 10 years. Prior to this civil action, the City had years to make any required plan changes but did not do so. The City justified its moratoria actions by arguing that any new construction permitted may harm the shoreline habitat. This rationale cites potential harm rather than actual, demonstrated harm. Standing alone, theoretical harm is not enough to deny private property owners fundamental access to the application review process, or protection and use of their property.

¶ 5 The importance of shorelines of statewide significance is codified in the Shoreline Management Act of 1971, chapter 90.58 RCW (SMA), and the SMA balanced this policy with the rights of private property owners. See RCW 90.58.020. Under the SMA, the state has the primary authority to manage shoreline development. This is done in a coordinated fashion, in conjunction with local governments. There is no authority in the SMA, express or inherent, which justifies the City's attempt to impose unilateral moratoria. Municipalities possess only those powers given by the legislature. See Lutz v. City of Longview, 83 Wash.2d 566, 570, 520 P.2d 1374 (1974). Moreover, the SMA does not allow for a city-adopted moratorium, and the SMA cannot be amended by implication.

FACTS AND PROCEDURAL HISTORY

¶ 6 The City of Bainbridge Island constitutes the entire island, located in Puget Sound and surrounded by approximately 48 miles of shoreline. The City adopted its SMP in 1996 in conjunction with its comprehensive plan under the Growth Management Act, chapter 36.70A RCW (GMA). The City's SMP identifies environmentally sensitive areas and native vegetation on the island, designates shoreline uses by area, sets out specific shoreline use regulations and plan administration, and includes a map. The parties agree that the City's SMP does not contain any reference to the use of moratoria on shoreline development.

¶ 7 In August 2001, city staff requested the City council to adopt a moratorium on shoreline development pending revision of the SMP ostensibly because the City staff lacked scientific information needed to assess the possible environmental effects of shoreline development on salmon habitat. On August 22, 2001, the City adopted Ordinance 2001-34, which imposed a one-year moratorium on filing "new applications for shoreline substantial development permits, shoreline substantial development exemptions and shoreline conditional use permits." Clerk's Papers (CP) at 140. The moratorium did not apply to "applications solely for [the purpose of] normal maintenance, normal repair and emergency repair of existing structures." Id. The ordinance stated that the City needed additional time to study scientific information and revise its SMP, "during which time significant shoreline habitat that supports a species threatened with extinction could be lost or damaged." Id. The ordinance referred to authority set out in RCW 35A.63.220 and RCW 36.70A.390 and stated that the City would hold a public hearing within 60 days and prepare findings of fact in accordance with those procedures.

¶ 8 In October 2001, the City held a public hearing and adopted Ordinance 2001-45, which amended Ordinance 2001-34. This ordinance did not amend the one-year term but altered the scope of the moratorium. The moratorium continued to prohibit the filing of new applications for shoreline substantial development permits, exemptions, and shoreline conditional use permits, but applied only to "new overwater structures (piers, docks and floats) and new shoreline armoring (bulkheads and revetments) where none has previously existed." CP at 147. Ordinance 2001-45 also exempted from the moratorium "shoreline permits for single family residences and their normal appurtenances," but did not exempt normal maintenance, normal repairs, or emergency repairs as had Ordinance 2001-34. Id. The newest ordinance also provided findings of fact which stated that piers, docks, and bulkheads could potentially have a significant impact on shoreline habitat, and that the moratorium was focused on the "structures that have the greatest potential to impact shoreline habitat." CP at 146. The ordinance stated that the moratorium was "necessary for the protection of the public health, safety, property, or peace, including the protection of shoreline habitat that supports a species threatened with extinction." CP at 147.

¶ 9 Ray and Julie Biggers filed their original complaint after the City enacted Ordinance 2001-45, seeking a declaratory judgment that the moratorium was illegal and void. In their complaint, Biggers argued that the moratorium (1) violated article XI, section 11 by conflicting with the general laws of the state; (2) exceeded the scope of the City's statutory authority under RCW 35A.63.220 and RCW 36.70A.390, which do not permit moratoria for shoreline regulations; (3) was for impermissible purposes; and (4) invalidly amended the City's SMP.³ While the case was pending, the City reviewed an environmental assessment and prepared a draft revised SMP.

¶ 10 In August 2002, the City held a public hearing to discuss extending the moratorium. Following the hearing, the City enacted Ordinance 2002-29, extending the moratorium for seven additional months. The ordinance cited the City's ongoing efforts to revise its SMP and stated that the City would not complete the revisions until early 2003. Like Ordinance 2001-45, Ordinance 2002-29 provided findings of fact to support the moratorium, including a statement that the moratorium...