Samson v. City of Bainbridge Island, No. 10–35352.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: PAEZ
• Citation: 683 F.3d 1051,12 Cal. Daily Op. Serv. 6576,2012 Daily Journal D.A.R. 7946
• Docket Number: No. 10–35352.
• Decision Date: 15 June 2012
• Parties: Kelly SAMSON; Sally Samson; Charles Kuhn; Sarah Kuhn; John L. Sutherland; Carole D. Sutherland; Thomas E. Morgan, III; Beth Bryson Morgan; Thomas E. Morgan Children's Trust; Blakely Rock Holdings LLC; A. Gary Ames; Barbara J. Ames; A. Gary and Barbara J. Ames Living Trust; Mark D. Laroche; Trina Laroche; Blakely Properties LLC; Samson Family Land Company, LLC; Blakely Harbor Properties LLC, Plaintiffs–Appellants, v. CITY OF BAINBRIDGE ISLAND, Defendant–Appellee.

683 F.3d 1051
12 Cal. Daily Op. Serv. 6576
2012 Daily Journal D.A.R. 7946

Kelly SAMSON; Sally Samson; Charles Kuhn; Sarah Kuhn; John L. Sutherland; Carole D. Sutherland; Thomas E. Morgan, III; Beth Bryson Morgan; Thomas E. Morgan Children's Trust; Blakely Rock Holdings LLC; A. Gary Ames; Barbara J. Ames; A. Gary and Barbara J. Ames Living Trust; Mark D. Laroche; Trina Laroche; Blakely Properties LLC; Samson Family Land Company, LLC; Blakely Harbor Properties LLC, Plaintiffs–Appellants,
v.
CITY OF BAINBRIDGE ISLAND, Defendant–Appellee.

No. 10–35352.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted March 8, 2012.
Filed June 15, 2012.

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Averil Rothrock and Aaron Matthew Laing—Schwabe Williamson & Wyatt, PC, Seattle, Washington; and Dennis Reynolds—Law Office of Dennis D. Reynolds, Bainbridge Island, Washington, for the plaintiffs-appellants.

Michael Charles Walter, Amanda Gabrielle Butler, and Randal Wayne Ebberson—Keating Bucklin & McCormack Inc. P.S., Seattle, Washington; and Rod P. Kaseguma, Rosemary A. Larson, and William A. Linton—Inslee, Best, Doezie & Ryder, P.S., Bellevue, Washington, for the defendant-appellee.

Daniel A. Himebaugh—Pacific Legal Foundation, Bellevue, Washington, for amicus curiae Pacific Legal Foundation.

Appeal from the United States District Court for the Western District of Washington, Robert J. Bryan, Senior District Judge, Presiding. D.C. No. 3–05–cv–05197–RJB.
Before: RICHARD A. PAEZ and MARY H. MURGUIA, Circuit Judges, and JAMES S. GWIN, District Judge.^*

OPINION
PAEZ, Circuit Judge:

“Full indeed is earth of woes, and full the sea,” remarked Hesiod, ¹ and reviewing the long odyssey of Kelly and Sally Samson, we are inclined to agree. The pair own waterfront property in picturesque Blakely Harbor in the City of Bainbridge Island. They devoutly wished to build a pier or a dock on their property during a time when local authorities had imposed a moratorium on such projects. The Samsons and some of their fellow landowners waged a long campaign against the moratorium in the state courts, and ultimately won a judgment declaring that the moratorium violated the state constitution. That victory was a hollow one, however, because the state courts upheld permanent changes to Bainbridge's shoreline land-use laws that permanently deferred the Samsons' dreams.

The Samsons come now to the federal courts, seeking damages for the thirty-one months during which they were barred

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from improving their shoreline property by the moratorium on new projects. They assert that the moratorium violated their substantive and procedural due process rights under the Fourteenth Amendment, and seek damages against the city under 42 U.S.C. § 1983. We conclude that the moratorium ordinances were validly enacted, nonarbitrary, and manifestly related to the city's legitimate municipal interests. Accordingly, we hold that the City of Bainbridge Island did not violate the Samsons' constitutional rights, and we affirm.

Background

Kelly and Sally Samson ² own waterfront residential property in Blakely Harbor, a bay on the southeast side of Bainbridge Island, in Puget Sound. In Washington, shoreline property like the Samsons' is subject to a regulatory scheme that consists of three parts: (1) the Shoreline Management Act of 1971, Wash. Rev.Code §§ 90.58.010–930, a state statute that provides a basic framework for shoreline management; (2) the Washington Department of Ecology's regulations implementing the Act, see generally Wash. Admin. Code tit. 173; and (3) Shoreline Master Programs, which are comprehensive use plans adopted by local jurisdictions and approved by the Department of Ecology, seeWash. Rev.Code § 90.58.030(3)(c).

The City of Bainbridge Island (“Bainbridge”) adopted a Shoreline Master Program in 1996. In 2000, the Washington Department of Ecology revised its statewide shoreline regulations. State law in effect at the time required Bainbridge to update its Shoreline Master Program to comply with the new regulations within two years of their passage. SeeWash. Rev.Code § 90.58.080 (West 2000) (“Local governments shall develop or amend, within twenty-four months after the adoption of guidelines as provided in RCW 90.58.060, a master program for regulation of uses of the shorelines of the state consistent with the required elements of the guidelines adopted by the department.”).³ Bainbridge thus began a comprehensive review of its 1996 Shoreline Master Program.

At the prompting of local residents and community associations, Bainbridge considered proposed restrictions on overwater shoreline development, such as private docks and piers. Critics of shoreline development particularly focused on Blakely Harbor. Blakely Harbor is the least developed and most rural of Bainbridge's various harbors, and many residents were keen to preserve its pristine character. Bainbridge's own Harbor Management Plan, adopted by the City Council in 1999, praised Blakely Harbor for its “relatively undeveloped” character, and stated that preventing the proliferation of manmade over-water structures was a “specific goal[ ]” for the city.⁴

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On August 8, 2001, the City Council adopted Ordinance No. 2001–32. The ordinance imposed a moratorium on “shoreline substantial development applications for construction of new docks and piers ... in Blakely Harbor.” ⁵ The ordinance was passed on an emergency basis and without a public hearing, though a public hearing was held after adoption. The ordinance included prefatory language taking note of the paucity of docks and piers in Blakely Harbor and observing that none had been constructed in the previous thirty years. The ordinance also expressed the City Council's view that the moratorium was “necessary for the protection of the public health, safety, property, or peace.”

Two weeks later, the City Council passed Ordinance No. 2001–34, which expanded the scope of the moratorium to apply to permit applications for a broader range of development projects anywhere on the island. The amendment clarified, however, that the moratorium did not apply to permit applications for projects involving preexisting structures, such as maintenance, repair, and restoration projects. The expanded ordinance listed a variety of new justifications for the moratorium. These included the threat that shoreline structures posed to critical shoreline habitat, the need to preserve what little undeveloped shoreline remained on the heavily developed island, and the importance of holding construction activity in abeyance while the city completed the revisions to its Shoreline Master Program.

Six weeks later, the City Council adopted Ordinance No. 2001–45, which narrowed the moratorium so that it applied only to applications for “new overwater structures (piers, docks and floats) and new shoreline armoring (bulkheads and revetments) where none has previously existed.” With Ordinance No. 2001–45, the City Council issued findings of fact that it developed from public testimony and other evidence presented at public hearings held after the passage of Ordinance No. 2001–34. The City Council found, inter alia, that shoreline structures such as piers, docks, and bulkheads had the “potential to cause significant impact to critical shoreline habitat” and to adversely affect juvenile salmon populations. The City Council also adopted the estimates of city planners that in the time it would take to revise the Shoreline Master Program, Bainbridge would receive “at least 14 shoreline substantial development permit applications and 29 shoreline substantial development exemption applications” if no moratorium were in effect.

In November of 2001, a group of residents sued Bainbridge in Kitsap County Superior Court, seeking a declaration that the “rolling” moratorium was illegal and void (the “Biggers litigation”). See Biggers v. City of Bainbridge Island, 162 Wash.2d 683, 169 P.3d 14, 17–19 (2007). While the litigation was pending, Bainbridge officials reviewed an environmental assessment and prepared a draft updated Shoreline Master Program. Id.

Almost a year later, on August 14, 2002, the City Council adopted Ordinance No. 2002–29, which extended the term of the

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moratorium to March 1, 2003. The ordinance, which was enacted after a public hearing, provided that the moratorium would last until early 2003. Days before the moratorium expired, the City Council adopted Ordinance No. 2003–13 on an emergency basis, which extended it to September 1, 2003.

Before the second deadline expired, the state superior court issued a decision in the Biggers litigation. The court invalidated the moratorium, holding that the city “overstepped its constitutional limits” by failing to exempt structures under $2,500 and by trenching on the authority of the state Department of Ecology.

Bainbridge appealed to the Washington Court of Appeals. Bainbridge moved to stay the superior court's judgment pursuant to Washington Rule of Appellate Procedure 8.1(b). The Court of Appeals granted the stay.⁶ City officials announced in a press release that they would continue to refuse to accept building permit applications for over-water structures during the pendency of the appeal, despite the superior court's judgment. On August 27, 2003—two weeks after the state trial court invalidated the moratorium ordinances—the City Council adopted Ordinance No. 2003–34, which extended the moratorium for Blakely Harbor until March 1, 2004.

Shortly thereafter, the City Council amended the Shoreline Master Program to permanently ban new dock construction in Blakely Harbor. These permanent restrictions were identical to the restrictions in the moratorium, so the amendments to the Shoreline Master Program had the effect of terminating the moratorium. The Washington Department of Ecology approved the permanent modifications to Bainbridge's Shoreline Master Program in early 2004.

After the city amended the Shoreline Master...