On August 6 Judge Costello signed the Judgment making the Bainbridge Shoreline Moratorium invalid. The City of Bainbridge Island has appealed the decision and worse yet, is illegally refusing to accept applications for permits.

According to Dennis Reynolds, the Bainbridge Island attorney who overturned the Moratorium, the City is “violating citizen’s fundamental right to use and develop shoreline property by refusing to accept applications for permits or exemptions. This is a basic civil right.”

The City does not care about the legality of its actions. Planning Staff and the Mayor are hoping not to win the appeal but to tie-up the process long enough to get the SMP Amendment banning docks in Blakely Harbor passed. The City is now illegally preventing shoreline property owners from filing for permits for docks and bulkheads. More pernicious, they are specifically trying to prevent Port Blakely residents from filing permits for docks. They hope if they can prevent Blakely Harbor property owners from filing for permits before the Amendment is passed, the residents will not be able to vest their rights to build a dock under the existing SMP.

This cynical ploy will also fail. The City cannot use an unconstitutional Moratorium or Appeal to prevent citizens from exercising their legal rights to apply for permits under the existing law. Property owners wishing to preserve their rights should immediately consult an attorney (Dennis Reynolds might be a good choice) and file an application for a permit or document their attempt to file an application for a permit in order to preserve their rights.

The Moratorium, Appeal, proposed Amendment and refusal to accept permit applications are all illegal (unconstitutional) and wrong. This radical agenda-driven process will result in greatly increased legal costs, more lawsuits, more defeats and ultimately huge class action judgments against the City for “temporary taking” and violation of fundamental civil rights. And we, as taxpayers, are going to pay the bill!

I am not a lawyer but the underlining issues seem pretty simple to me. The Washington Constitution, Article IX, Section 11, prohibits the enacting of local laws which conflict with the general laws of the State. The State law in this case is the 1971 Shoreline Management Act (SMA). So if the City makes a local law (moratorium or ban) that is in conflict with the SMA or any other State laws, the local law is therefore unconstitutional.

The SMA states, private recreational docks are a preferred use of the shorelines and that “alterations of the natural condition of the shorelines . . . shall be given priority for single family residences and their appurtenant structures . . . including but not limited to … piers, and other improvements facilitating public access to shorelines of the state.” (RCW 90.58.020) The courts have since ruled that “public” specifically includes residential property owners.

The State Legislature has even gone so far as to enact legislation that encourages landowners’ rights to install private docks in public waters. “The abutting residential owner to state-owned shorelands, tidelands, or related beds of navigable waters, other than harbor areas, may install and maintain without charge a dock on such areas if used exclusively for private recreational purposes and the area is not subject to prior rights.” (RCW 79. 90.105)

Harbors referred to in the statue are harbors designated by the Department of Natural Resources. Elliot Bay is a DNR harbor. There are no DNR designated harbors on Bainbridge.

The right of residential owners to construct docks was recognized by the people of Washington through their ratification of the SMA and by the Legislature. If the City now prohibits docks in Blakely Harbor by amending the SMP, it will once again be violating the State Constitution.

Please contact the Mayor and the City Council with your opinions.

Gary Tripp
Bainbridge Island