Samson v. City of Bainbridge Island

Decision Date27 January 2010
Docket Number05-5199,05-5201,05-5204,05-5202,05-5205,05-5206.,Case No. 05-5197 RJB. Consolidated Case No. 05-5197,05-5203,05-5198
Citation683 F. Supp.2d 1164
PartiesKelly and Sally SAMSON, husband and wife, on behalf of themselves and all others similarly situated, Plaintiffs, v. CITY OF BAINBRIDGE ISLAND, Defendant.
CourtU.S. District Court — Western District of Washington

Aaron Matthew Laing, Philip T. Kasin, Schwabe Williamson & Wyatt, Seattle, WA, Dennis Dean Reynolds, Bainbridge Island, WA, for Plaintiffs.

Michael Charles Walter, Keating Bucklin & McCormack, Seattle, WA, Rod Paul Kaseguma, Rosemary A. Larson, William A. Linton, Inslee Best Doezie & Ryder, Bellevue, WA, Adam Rosenberg, Amanda Gabrielle Butler, Randal Wayne Ebberson, Stephanie E. Croll, Keating Bucklin & McCormack, Seattle, WA, for Defendant.


ROBERT J. BRYAN, District Judge.

This matter comes before the Court on Plaintiffs' Motion for Partial Summary Judgment (Dkt. 87) and Defendant's Motion for Partial Summary Judgment (Dkt. 100). The Court is familiar with the records and files herein and all documents filed in support of and in opposition to the motions, and heard oral argument on January 21, 2010. The Court is fully advised.


The City of Bainbridge Island adopted "rolling" ordinances that provided "moratoria" that prevented Plaintiffs and others from filing complete development permit applications for certain shoreline developments. These moratoria were in place from August 20, 2001, to March 1, 2004. The shorelines affected by the moratoria were part of, or all of, the shorelines of the City of Bainbridge Island. Furthermore, details of those moratoria need not be set forth here beyond the following outline; the record is replete with descriptions of the actions of the City.

On August 8, 2001, the City Council of the City of Bainbridge adopted Ordinance No. 2001-32, which imposed a moratorium on the filing of shoreline development applications for the construction of new docks and piers in Blakely Harbor. Dkt. 87, p. 3; Dkt. 100, p. 2. The ordinance was passed on an emergency basis and without a public hearing. Dkt. 87, p. 3. A public hearing was held after adoption.

On August 22, 2001, the City Council adopted Ordinance No. 2001-34, which repealed Ordinance No. 2001-32 and imposed a one-year moratorium on filing new applications for shoreline substantial development permits, shoreline substantial development exemptions, and shoreline conditional use permits throughout Bainbridge Island. Dkt. 87, p. 3; Dkt. 100, p. 3. This ordinance was also passed on an emergency basis without notice or a public hearing. Dkt. 87, p. 3. A public hearing was held after adoption.

On October 10, 2001, the City Council adopted Ordinance No. 2001-45, which amended the moratorium in Ordinance No. 2001-34 to apply only to new overwater structures (piers, docks and floats) and new shoreline armoring (bulkheads and revetments) where none previously existed. Dkt. 87, p. 3; Dkt. 100, p. 3. The City Council also adopted findings of fact to support the City-wide moratorium. Id. Plaintiffs allege that Ordinance No. 2001-45 did not amend the one-year moratorium term, but instead simply amended the scope of the moratorium. Id. Plaintiffs also allege that the findings of fact adopted by the City Council essentially stated that piers, docks and bulkheads could potentially have significant impact on shoreline habitat, and that the moratorium was focused on structures that have the greatest potential to impact shoreline habitat. Dkt. 87, p. 3-4. 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 while the City updated its Shoreline Master Program ("SMP"). Dkt. 87, p. 4. Plaintiffs state that state law does not require the City to update its SMP until December 1, 2011. Id. Defendant counters that the update to the SMP was due much earlier, about 2003, but in 2003 the state law changed the deadline to update the SMP to 2011. Dkt. 109., p. 3., Dkt. 100, p. 2.

On November 8, 2001, a lawsuit was filed against the City of Bainbridge in Kitsap County Superior Court, seeking a declaration that Ordinance No. 2001-45 was illegal and void ("Biggers Litigation"). Dkt. 87, p. 4; see Biggers v. City of Bainbridge, 162 Wash.2d 683, 169 P.3d 14 (2007). While the Biggers Litigation was pending, the City reviewed an environmental assessment and prepared a draft updated SMP. Dkt. 87, p. 4., Dkt. 100, p. 2.

On August 14, 2002, after a public hearing, the City Council adopted Ordinance No. 2002-29, which extended the term of the moratorium to March 1, 2003. Dkt. 87, p. 4; Dkt. 100, p. 3. The ordinance stated that the City would not complete the revisions to its SMP until early 2003. Dkt. 87, p. 4. On February 26, 2003, the City Council adopted Ordinance 2003-13, which was effective immediately as an emergency ordinance, extending the moratorium for a second time to September 1, 2003. Dkt. 87, p. 4; Dkt. 100, p. 3.

On June 16, 2003, the Kitsap County Superior Court issued a written memorandum decision in the Biggers Litigation, and entered an Order thereon on August 6, 2003, invalidating the moratoria in Ordinance Nos. 2001-34 and 2001-45. Dkt. 87, p. 4; Dkt. 104-3, p 2. On August 8, 2003, the City filed an appeal in Division II of the Washington Court of Appeals. Id. On August 11, 2003, the City filed a notice of stay to keep the moratorium in effect. Id. The stay operated automatically from August 11, 2003, pursuant to Washington Rules of Appellate Procedure 8.1(b). The City, by press release on August 13, 2003, stated that it would not be accepting applications for private docks and piers in Blakely Harbor. Dkt. 87, p. 5., Dkt. 100, p. 3. No applications for shoreline developments were made to the City between August 6 and August 11, 2003.

On August 27, 2003, the City Council adopted Ordinance No. 2003-34, which extended the moratorium, but only for Blakely Harbor, until March 1, 2004. Dkt. 87, p. 5-6, Dkt. 100, p. 4. On September 10, 2003, the City Council passed Ordinance No. 2003-30, which amended the City's SMP to establish dock restrictions in Blakely Harbor. Id. Shortly thereafter, the City sent the amendments of its SMP to the Washington Department of Ecology for its review and approval. Id. On or around February 6, 2004, the Washington Department of Ecology issued its Findings of Fact and Conclusions of Law approving the City's dock ordinance, Ordinance No. 2003-30. Id. Ordinance 2003-30 is generally consistent with the moratoria ordinances.

On or about February 16, 2005, Plaintiffs initiated separate actions in the Superior Court of Washington State in Kitsap County against the City of Bainbridge Island, Washington, alleging violations of the Revised Code of Washington ("RCW") Chapter 64.40, Inverse Condemnation, and violations of their federal civil rights. Dkt. 1-2, p. 23-24; Dkt. 87, p. 11. On March 17, 2005, Defendant City of Bainbridge Island ("the City") removed the case to this court and the cases were consolidated. Dkt. 1; Dkt. 87, p. 11. On October 29, 2009, Plaintiffs filed the motion for partial summary judgment now under consideration. Dkt. 87. On November 25, 2009, the City filed the motion for partial summary judgment now also under consideration. Dkt. 100. On November 18, 2009, the Court entered a minute order renoting Plaintiffs' motion so that it could be considered with the City's motion. Dkt. 99.

Plaintiffs allege that during the relevant time period, that is from August 20, 2001 to March 1, 2004, all Plaintiffs intended to file permit applications to construct new docks or other improvements in Blakely Harbor that would benefit properties they owned or properties in which they had a beneficial interest. Dkt. 87, p. 7.; Dkts. 89-96; Dkts. 79-86. They allege that the City wrongly refused to accept applications and informed Plaintiffs that the applications would be refused because of the moratorium, thereby giving rise to Plaintiffs' two claims—inverse condemnation and federal civil rights violations. Id.

A. Property Rights—Fundamental Rights

This case arises under Washington State's vested rights doctrine, which provides that a property owner has a right to have any land use development application processed under the regulation in effect at the time a complete development permit application is filed, regardless of subsequent changes in zoning or other land use regulations. See, e.g. Thurston County Rental Owners Ass'n v. Thurston County, 85 Wash.App. 171, 182, 931 P.2d 208 (1997) (citing Erickson v. McLerran, 123 Wash.2d 864, 872 P.2d 1090 (1994)). The doctrine is, arguably, of state and federal constitutional dimension because the right to use and develop land is a protected property right. See Vashon Island Comm. for Self-Government v. Boundary Review Board, 127 Wash.2d 759, 768, 903 P.2d 953 (1995) ("The vested rights doctrine is based on constitutional principles of fundamental fairness, reflecting an acknowledgment that development rights are valuable and protectable property rights."); see generally Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 71 L.Ed. 303 (1926). The doctrine is based on "ex post facto" considerations and principles of fairness and due process. It is designed to prevent the rules from changing after the game begins.

It is unclear as to what applications were attempted to be filed, or what would have happened to those applications had they been processed at the time of filing. These issues leave unclear the matter of exactly what vested rights the various Plaintiffs may be entitled to urge in this case. It is clear that no applications were filed between August 6 and 11, 2003. For the purposes of this order only, the court will assume...

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