Posted by: Patricia Salkin | October 31, 2007

Washington Supreme Court Finds Rolling Moratoria Violated State Constitution

The City of Bainbridge Island occupies all of the island of the same name, located in Puget Sound west of Seattle. In 2001, the city adopted a one-year moratorium on new applications for shoreline development permits, ostensibly to revise its Shoreline Master Program (SMP). Ray and Julie Biggers, owners of shoreline property, sued, seeking a declaratory judgment that the moratorium was illegal. While the case was pending, in August 2002, the city extended the moratorium seven more months. The trial court granted summary judgment in favor of the Biggers. While the case was on appeal, the city enacted another moratorium in 2003, extending the ban on shoreline construction an additional year.

The Court of Appeals upheld the trial court’s ruling in 2004. In its appeal to the Supreme Court, the City argued it had statutory authority to adopt moratoriums on shoreline development, and also possessed inherent constitutional authority to adopt moratoria. The court observed that the state constitution permits local governments to enact regulations that are not in conflict with general law. That provision must be read in the light of the constitution’s provision that the state asserts ownership of the shores of all navigable waters up to the ordinary high-tide line or ordinary high-water mark, it said. Thus, under article XVII, section 1, the state has the power to regulate shorelines, and local governments have no broad police power over shorelines. It was notable, the court said, that the city never argued to the trial court or the Court of Appeals that it possessed implied constitutional authority to regulate shorelines. The City’s after-the-fact rationalization of its action was inconsistent with the constitution’s limitation on local government, granting it only those powers not in conflict with general laws. 

The Court then turned to the City’s claim of authority under the Shoreline Management Act of 1971. It noted the law delegates only specified powers to local government. The law contains no provision authorizing local governments to adopt moratoria. As part of the law’s careful balancing of protection of state shorelines and permitting development, landowners are allowed to build water-dependent facilities such as bulkheads and docks. The legislature’s 1992 amendments recognized the need for shoreline structures to provide protection against erosion, stating that all SMPs must have methods to achieve effective and timely protection for shoreline landowners. Thus, the court said, the city’s rolling moratoria on shoreline applications prohibited what state law permits. 

In an opinion concurring in the result and providing the fifth vote to affirm the lower courts, Justice Tom Chambers said the state constitution’s broad grant of police power to local governments allowed the imposition of shoreline moratoria, but the city’s use of rolling moratoria were unreasonable. It is beyond the city’s constitutional authority to deny building permit applications year after year, he declared.  

Biggers v. City of Bainbridge Island, 2007 WL 2948905 (10/11/07). The opinion is also available at: 

http://www.courts.wa.gov/opinions/index.cfm? =opinions.showOpinion&filename=771502MAJ   

Thanks to James Lawlor, Esq. editor of the Land Use Legal Report, for permission to publish this abstract that appears in vol. 1 No. 21 (October 19, 2007).  For subscription information to the LULR contact James Lawlor at landlaw@verizon.net. 


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