Chinks in the Armor: Municipal Authority to Enact Shoreline Permit Moratoria After Biggers v. City of Bainbridge Island

• Publication year: 2007

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 31, No. 1FALL 2007

NOTE

Chinks in the Armor: Municipal Authority to Enact Shoreline Permit Moratoria After Biggers v. City ofBainbridge Island

Ryan M. Carson(fn*)

I. Introduction

In 2001, the city of Bainbridge Island, Washington, faced a problem not uncommon to cities with valuable shorefront real estate. On the one hand, homeowners and developers desired to build and improve on shoreline lots. On the other, members of the community concerned about the proposed construction of overwater structures in relatively pristine areas pressured the city to block more development. When scientific study revealed that certain portions of the city's shorelines were in fact vital salmonid habitat,(fn1) the city council adapted its policies to preserve and protect these ecological resources.(fn2) Before beginning the change in earnest, the city enacted a permit moratorium to prevent frustration of its efforts by new development.(fn3) By refusing to accept permit applications, the city bought itself time to plan for new rules regarding the building of new overwater structures and new shoreline armoring.(fn4)

Not surprisingly, shoreland homeowners and certain local business interests were not excited about the new policy.(fn5) Because any substantial development on the shorelines required securing a permit from the city under the Shoreline Management Act of 1971 ("SMA"),(fn6) the moratorium barred both homeowners from improving their property and builders from pursuing their livelihood in shoreline areas.(fn7) These offended residents and business owners sued, seeking declaratory relief in the form of an invalidation of the moratorium as enacted.(fn8) They succeeded initially as the trial court granted summary judgment in their favor on the question of the moratorium's validity.(fn9) The Court of Appeals of Washington, Division Two, affirmed the invalidation of the moratorium.(fn10) This litigation and its resulting effects are the primary focus of this Note.

Why would a relatively mundane dispute over what amounts to a few cubic yards of concrete warrant the extensive discussion encompassed in this Note? This dispute gives rise to a fundamental question about power: What is the scope of municipal power under one of Washington's most important environmental protection laws? Additionally, questions arise about competing normative values within environmental protection, property rights, and responsible land use and development. Placed against a backdrop of growing contentiousness surrounding these issues in Washington politics, the relevance and timeliness of these questions cannot be doubted.

The identity of other interested parties in this case should not go without comment. On one side are the plaintiff respondents, who are private property owners, joined by local construction industry interests.(fn11) On the other side is a small municipality. As the case moved towards the Washington Supreme Court, each side's list of friends grew. The Building Industry Association of Washington, Washington Association of Realtors, and Pacific Legal Foundation filed amicus briefs on behalf of the property owners. Washington Environmental Council, Futurewise, People for Puget Sound, various state agencies,(fn12) and Snohomish County filed amicus briefs on behalf of the city. With a few exceptions, these parties represent the participants in the cacophonous meta-debate over private property rights and environmental protection in Washington. Indeed, Biggers v. City of Bainbridge Island marks yet another round in that ongoing contest.(fn13)

Prior to Biggers, the existence of municipal power to use moratoria was not always certain under Washington law. While it was settled law under various land use planning statutes, including the Planning Commissions Act, Planning Enabling Act, and Growth Management Act ("GMA"), that municipalities had the power to enact moratoria, the question of whether municipalities could enact permit moratoria specifically under the SMA remained unanswered.

The court of appeals reached an unfortunate and incorrect result in Biggers, and the Washington Supreme Court-or, should it fail, the state legislature-should take immediate steps to remedy the situation. The Biggers court's holding ignores precedent regarding state constitutional law, creates a trap for municipalities with shorelines inside their jurisdictional boundaries that simultaneously plan under the GMA or the Optional Municipal Code ("the Code"), and risks malignant practical problems. Further, the court misinterprets the fundamental structure of Washington law pertaining to municipal power over land use planning and, by adhering to strict textualism in interpreting the SMA, also misinterprets the legislative intent behind the SMA.

A rule that allows for permit moratoria in one part of a municipality's jurisdiction but not in another-namely, its shorelines-creates an irrational incongruity in land use planning and regulation. After Biggers, municipalities with shorelines in their jurisdiction may employ moratoria to preserve the status quo while altering their master plans over every part of their physical jurisdiction, except for a 200-foot-wide strip of land along the shoreline above the ordinary high water mark.(fn14)

The court's holding also risks significant practical problems that undercut effective land use planning. First, with no power to enact mora-toria to preserve the status quo on its shorelines, Washington's vested-rights doctrine(fn15) would allow for end runs around new shoreline regulations and lead to piecemeal shoreline development-effectively contravening the purposes of the SMA.(fn16) Second, due to the predictable influx of permit applications after notice of pending changes to a shoreline master plan is given, municipalities have an incentive to proceed hastily,(fn17) giving short shrift to scientific findings, drafting poorly, or potentially violating due process-all of which could lead to costly and unnecessary litigation. Finally, a municipality may choose to work backward by enacting a draconian shoreline master plan and subsequently amend the plan to loosen regulations over time. Under this approach, municipalities risk a statutory violation, or even a determination of unreasonable use of the police power, which may constitute a regulatory taking.(fn18)

A holding that municipalities do have the power to enact permit moratoria without exceeding their authority under the SMA is both warranted and legally defensible. Part II first contains an examination of the sometimes overlapping land use codes under which cities like Bainbridge Island plan. Second, the Part discusses grants of authority to enact moratoria in other land use planning statutes. Part III then provides a synopsis of Biggers and the court's holding, along with an analysis of both the legal and practical problems with the court's decision, as well as reaction to the case in another jurisdiction. In Part IV, three solutions to the legal problems before the Washington Supreme Court are presented. The strengths and weaknesses of two arguments presently before the court will be evaluated; Part IV subsequently proposes a solution to the issue not presently being argued.

II. The Intricate Web: Land Use Regulation in Washington

Bainbridge Island, like countless cities and towns in Washington, plans under a set of laws that often overlap. An intricate web of land use codes, environmental protection statutes, constitutional provisions and related doctrine, and local ordinances guide and bind local governments. For the purposes of this Note, only the parts of the web relevant to the dispute in Biggers will be discussed: the Washington Constitution's police power provision, the GMA, the Code, and the SMA.

A. Municipal Planning Authority in Washington

Municipal land use planning authority in Washington derives from multiple sources, ranging from the general delegation of police power in the state constitution to specific statutes detailing both the substance and process of planning. In addition, other natural features of municipalities' physical jurisdiction, such as shorelines, are managed by statute. Before delving into the question of whether the SMA is substantively different in its grant or restriction of municipal power, an exploration of the varied `statutes, case law, and doctrines governing municipal power over land use planning in Washington will prove useful.

1. Constitutional Authority to Regulate Land Use

Municipalities in Washington, as part of a generalized grant of police power under the Washington Constitution,(fn19) have the authority to enact land use plans "unfettered by any enabling act."(fn20) In Washington, the delegated police power is extensive, though not plenary.(fn21) Recently, the Washington Supreme Court revisited the question of the extent of municipal police power in Weden v. San Juan County.(fn22) Owners and operators of personal watercraft brought an action against the county challenging the validity of an ordinance issued by the county that banned the use of personal watercraft on all marine waters of San Juan County, subject to a few exceptions not germane to this discussion.(fn23) The court noted that the police power is firmly rooted in the history of this state and that municipal police...