THE LEGALITY OF WASHINGTON SHORELINE DEVELOPMENT MORATORIA IN THE WAKE OF BIGGERS V. CITY OF BAINBRIDGE ISLAND
Michelle E. DeLappe
Abstract: The Washington State Supreme Court struck down the temporary shoreline development moratorium at issue in Biggers v. City of Bainbridge Island, 162 Wash. 2d 683, 169 P.3d 14 (2007); yet the court fragmented on the broader question of whether a local government has authority to adopt a moratorium on shoreline development during long-term land-use planning. In light of upcoming deadlines for the state's local governments to revise their shoreline-management plans, constraints on local authority to adopt shoreline moratoria during the planning process take on heightened importance for hundreds of local governments. The question highlights the tension between private property rights and government authority to regulate for the public welfare. This Note argues that, when presented with a reasonable moratorium, Washington courts should deem persuasive the agreement of the Biggers' concurrence and dissent, which form a majority in favor of the legality of reasonable moratoria. Biggers provides binding legal precedent pursuant to the narrowest-grounds rule for interpreting plurality decisions, holding only that an unreasonable shoreline moratorium contravenes Washington law. Courts that adopt this position will remain in harmony with the state's long history of broad local police powers while continuing the traditional requirement that land-use ordinances be reasonable. Public policy, particularly environmental imperatives, also favors upholding the reasonable shoreline moratorium. This Note proposes substantive and procedural factors, applicable in future cases, that likely fulfill the reasonableness requirement in Biggers.
INTRODUCTION
Puget Sound, a playground for orcas and home to an impressive number of species,(fn1) also provides a beautiful place to live for a large and rapidly increasing human population. (fn2) In addition to being precious to local communities(fn3) and one of the largest estuaries in the United States, Puget Sound is an ecosystem of global significance.(fn4) Today, it faces potentially devastating challenges.(fn5) One of the most serious threats comes from shoreline development.
Development that landowners believe will protect their shoreline property can harm shoreline habitat: "One-third of the entire Puget Sound marine shoreline is already 'armored' with rock, cement walls, bulkheads, and other hard structures that destroy areas where native plants grow, shorebirds hunt for food, forage fish lay eggs, and young salmon hide from predators on their way to the sea. "(fn6) Local governments' policies and regulations play a crucial role in preventing further habitat loss,(fn7) and measures they take to protect this public interest can clash with asserted private property rights.(fn8) Biggers v. City of Bainbridge Island involved just such a conflict, as local property owners and builders took issue with a particular kind of ordinance: the temporary moratorium, which is a tool for long-term planning that has sparked disparate reactions from courts across the nation. (fn10)
In Biggers, the Supreme Court of Washington sided with the property owners, ruling that the City of Bainbridge Island's moratorium was unlawful. The court failed, however, to reach a consensus on the circumstances under which a local government has the authority to adopt a temporary moratorium on shoreline development. Four justices argued that the Washington Constitution bars local governments from enacting shoreline moratoria under all circumstances;(fn11) four justices agreed with the City that the authority exists under Washington law and that the City's temporary moratorium was reasonable;(fn12) and one justice, in a concurring opinion ruling against the City, agreed with the dissent that local governments have the authority to enact reasonable moratoria but determined that the moratorium at issue was unreasonable and therefore unconstitutional.(fn13)
The court's fragmentation makes it difficult to ascertain the holding and precedential value of the decision. (fn14) This area of law demands clarity because of the important interests at stake. The interests include the protection of Puget Sound ecology, the need for stability in the planning process, the costliness of litigation and liability for local governments,(fn15) owners' rights to use their land, and pressures to develop land in order to accommodate the region's growing population.
Some legal commentators, looking only to the lead opinion and ignoring the fact that five justices agreed that local governments have the authority to enact reasonable moratoria, have erroneously concluded that the decision prohibits all local shoreline moratoria. (fn16) This Note argues that courts should interpret Biggers as affirming a local government's power to enact reasonable moratoria. When read according to the narrowest-grounds rule for interpreting plurality decisions,(fn17) Biggers provides binding precedent for invalidating only an unreasonable shoreline moratorium. While courts should, of course, invalidate unreasonable moratoria, they should uphold reasonable moratoria as consistent with Washington's long history of vesting broad police powers in local governments so long as their regulations are local, reasonable, and not in conflict with general law.(fn18)
Part I of this Note introduces the constitutional and statutory law underlying the Biggers opinions, which involves the extent of local police powers in Washington, the state's interest in its shorelines, and interaction between the Shoreline Management Act(fn19) and the Growth Management Act. (fn20) Part II summarizes the court's three opinions in Biggers. Part III explains how Washington courts interpret plurality holdings and argues that the concurring and dissenting opinions in Biggers are persuasive authority for upholding reasonable shoreline moratoria. Part Iv argues that courts should uphold reasonable moratoria because they are an important tool for protecting sensitive areas while local governments engage in long-term planning. Part Iv also introduces factors Washington courts will likely apply in determining whether a particular moratorium is reasonable.
I. CONSTITUTIONAL AND STATUTORY LAWS BOTH GRANT AND LIMIT LOCAL POWERS
The state's constitutional and statutory laws involving the power of local governments over shorelines are central to understanding Biggers. Most important is the extent of local regulatory power under article XI, section 11 of the Washington Constitution. Second, there is the question of special limits to local power for shorelines, pursuant to the public-trust doctrine and state dominion of shorelines under article XVII, section l of the Washington Constitution. Finally, the Washington State Legislature has delegated specific regulatory duties to local governments through the Shoreline Management Act (SMA) and the Growth Management Act (GMA), but the interaction of these two statutes has created some confusion with respect to shoreline areas.
1. The State Constitution Grants Local Governments Regulatory Powers
Article XI, section ll of the Washington Constitution empowers "[a]ny county, city, town or township [to] make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws. "(fn21) Adopted in 1889, when the "Dillon Rule" was in vogue nationally as limiting local government to only those powers expressly granted or necessarily implied,(fn22) the broad language of section ll amounted to an express grant of power to local governments.(fn23)
Throughout the state's history, Washington courts have generally held that local governments have broad powers to enact reasonable regulations to promote the public welfare. Cases decided soon after the adoption of section ll interpreted municipal police powers as equal within their local sphere to those enjoyed by the State Legislature.(fn24) For example, one early ruling upheld a municipality's authority to ban business solicitation of disembarking train passengers against the railway company's challenge.(fn25) Although Washington courts briefly followed the U. S. Supreme Court's lead in Lochner v. New York,(fn26) during the early 1900s and struck down labor and economic regulations as illegitimate uses of police powers, they did so "in a limited fashion and only when constrained to do so by the facts."(fn27) The demise of the Lochner era(fn28) ended Washington's foray into liberty-of-contract limits on local police powers, and "[s]ince the 1930s, the Supreme Court of Washington has generally continued the strong-police-power approach that it had begun in the late nineteenth century."(fn29)
Washington courts today do not generally require an explicit constitutional grant of local police power. (fn30) Instead, they rely on a judicially established test to ensure that local governments do not overstep their constitutional authority: the regulations must be (1) reasonable, (2) local in nature, and (3) not in conflict with general laws. (fn31)
2. The State Constitution, Consistent with Public-Trust Principles, Requires that the State Retain Its Interest in Shorelines
Ancient in origin, the public-trust doctrine vests states with the duty to...
