Bainbridge Island broker Doug Nelson hopes to turn his lawsuit against the city of Bainbridge Island into a class-action suit. Nelson, who owns RE/MAX Unlimited on the island, filed a lawsuit last June in Kitsap County Superior Court to force the city to vacate an environmentally sensitive area declaration on his title (or compensate him instead for taking the land) and to rule the declaration illegal.
At issue is the city’s No Vegetation Zone (NVZ), which was adopted in 1996 whose purpose is “to protect and enhance the Island’s natural character, water quality, native plant communities, and wildlife habitat along the shoreline.” The code requires shoreline property owners to maintain a native vegetation buffer and restricts construction, clearing and grading in the NVZ, only allowing for new plantings to be native species or other approved plants.
Nelson said zoning “is not a defect” that has to be disclosed during the sale of vacant land, so he didn’t know about the restriction until he went to obtain his occupancy permit. “I filed the NVZ (title notice) in protest, reserving my rights,” he said.
The lawsuit is not about the city’s right to impose zoning on his property but rather about “illegal taking without compensation,” Nelson said, adding that waterfront property owners are taxed on their entire land parcel, regardless of whether some of it is unusable due to zoning restrictions. “I think we’re calling attention to an issue a lot of people are interested in. A lot of property owners don’t have the resources to battle this on their own,” he said.
Nelson has been talking to other property owners and said a few dozen people have called him with their interest. His attorney, island-based Dennis Reynolds of Dennis D. Reynolds Law Office, said the process would require an amendment to the litigation but first they have to determine who the interested parties may be. “People have expressed interest in litigation. We’ll meet with interested property owners and see where it will lead,” he said.
The Bainbridge Defense Fund also hopes to see the lawsuit become class action. Gary Tripp, director of the property-rights nonprofit, said his group raised a “significant” amount of funds last year to pursue cases that have an islandwide or even larger significance. He said the no vegetation zone affects about 2,400 properties on Bainbridge but the city only enforces the code when someone files a permit for construction, remodeling or addition. “The regulation says that existing uses may continue but if you build or change anything, that’s when they get you. It’s very Machiavellian — if it’s so important, why not enforce it in the first place?”
The bigger issue, according to Tripp and Nelson, is the citizens’ constitutional right to use their private property without being responsible “for providing a public benefit” like a vegetation buffer unless they’re being compensated for it. Tripp cites three state Supreme Court rulings that found “open space and native vegetation buffer requirements are an illegal form of taxation, if they are not a direct mitigation of the individual use,” and said that’s exactly the case with the city of Bainbridge.
Community Development officials with the city could not be reached for comment by deadline time.
