Posted by: Patricia Salkin | August 1, 2012

9th Circuit Court of Appeals Finds Moratorium Did Not Violate Due Process Rights

Plaintiff’s owned waterfront property on Bainbridge Island. Shoreline property in the area is subject to three regulatory schemes: (1) the Shoreline Management Act of 1971; (2) the Washington Department of Ecology’s regulations; and (3) Shoreline Master Programs (adopted by local jurisdictions). Due to local interests, Bainbridge contemplated enacting restriction on overwater shore development, such as private docks and piers. In 2001, “the City Council adopted Ordinance No. 20001-32. The ordinance imposed a moratorium on shoreline substantial development applications for construction of new docks and piers in Blakely Harbor.” As it was passed on an emergency basis, no public hearings were held until after the adoption. The City gave the reason for the moratorium as being “necessary for the protection of the public health, safety, property, or peace.” The City then passed another ordinance to expand the scope of the moratorium to the entire island. Another ordinance was later adopted that narrowed the moratorium to only applications for new overwater structures. The Plaintiffs and a group of local citizens sued seeking “a declaration that the rolling moratorium was illegal and void.” The City Council then extended the term of the moratorium again. Before that moratorium expired, the court invalidated the moratorium. Bainbridge then appealed to the Washington Court of Appeals, which granted a stay. The city Council then amended the Shoreline Master Program to permanently ban new dock construction in Blakely Harbor. The Washington Supreme Court then affirmed the superior court’s judgment that the rolling moratorium was a violation of the state constitution. However, in a different case two yeas later, the Washington Court of Appeals upheld Bainbridge’s permanent amendments to its Shoreline Master Program that prohibited construction of new single-use private docks.

Plaintiffs filed multiple actions alleging, “a variety of state-law claims as well as federal constitutional claims under 42 U.S.C. § 1983.” Bainbridge removed the cases to the United States District Court for the Western District of Washington, which consolidated the cases. The Court granted summary judgment to Bainbridge, and the Plaintiff’s appeal the “adverse summary judgment on their substantive and procedural due process claims only.”

The Court first looked to see if the Plaintiff’s had a property interest that would support their § 1983 claims. The Court held that they did not need to determine if the Plaintiff’s had such an interest because Bainbridge did not violate the Plaintiff’s substantive due process rights. The Plaintiffs had conceded that the moratorium “did not impinge on their fundamental rights.” The Court noted that the “Supreme Court has long eschewed heightened scrutiny when addressing substantive due process challenges to government regulation’ that does not impinge on fundamental rights.” The Plaintiff’s had to show that the Bainbridge Ordinances were “clearly arbitrary and unreasonable, having no substantial relation to the public safety, morals, or general welfare.”

The Plaintiffs acknowledged that the Bainbridge had a legitimate interest in protecting wildlife. They argued however, that the ordinances were arbitrary and unreasonable because: “(1) the city used a rolling development moratorium in lieu of existing alternative regulatory mechanisms; (2) the city continued to extend the moratorium without making progress toward comprehensively updating its Shoreline Master Program; (3) the city extended the moratorium even after the Kitsap County superior Court declared that enacting ordinances invalid under the state constitution; and (4) the Washington Supreme Court held that the rolling moratorium violated the state constitution.” The Court held that to be arbitrary in the constitutional sense, the conduct must be egregious, and found that none of the issues raised by the Plaintiff’s rose to the level or “egregious official conduct.”

The Court found that since the city intended to revise its Shoreline Master Program, a development moratorium was sensible. The Plaintiff’s presented no evidence that persuaded the Court that the city was “dilatory in updating the Shoreline Master Program, or was using the updating process as a pretext for some more malicious objective.” Furthermore, the Court held that Bainbridge’s actions were not an arbitrary administration of local regulations because the City Council had “obtained a stay of the adverse judgment, continued to enforce the moratorium, and pursued an appeal. Therefore, the Plaintiff’s failed to present evidence to allow their substantive due process claim to proceed.

The Court then turned to the issue of procedural due process. Since the City Council used “validly enacted ordinances to impose and extend the moratorium,” the Court affirmed. The Court held that nothing in the record suggested that the ordinances were adopted in an unlawful manner. “Procedural due process entitles citizens to a legislative body that performs its responsibilities in the normal manner prescribed by the law.” The Court held that the City Council had followed normal protocols when it passed the moratorium ordinances.

Samson v. City of Bainbridge, 2012 WL 2161371 (C.A.9(Wash.) 6/15/2012)

The opinion can be accessed at:

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