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Local Governments Lack Authority to Impose Moratorium on Shoreline Development

[January 2005]

Davis Wright Tremaine LLP (DWT) and its waterfront development clients received a dazzling, deserved result from the Washington Court of Appeals Division II on Dec. 22, 2004. In the published decision of Biggers v. City of Bainbridge Island, ___ P.3d___ (2004), the Court held that local governments lack authority under Chapter 90.58 RCW, the Shoreline Management Act (SMA), to impose moratoriums on shoreline development. The Court expressly rejected the City’s argument that the express authorizations for moratoriums under the Growth Management Act (GMA) and the Planning Enabling Act provided a basis for moratoriums on shoreline development. In reaching its decision, the Court agreed with DWT’s argument that the GMA, by its express terms, mandates that the provisions of the SMA—which provide no authority for moratoria—take priority over those of the GMA and govern the unique criteria for shoreline development. “In other words,” said the Court, “the SMA trumps the GMA in this area, and the SMA does not provide for moratoriums on shoreline use or development.”

Factual Background

The City of Bainbridge Island had imposed a moratorium on the filing of applications for Shoreline Substantial Development Permits, Shoreline Substantial Development Exemptions, and Shoreline Conditional Use Permits for certain types of development while updating the City's Shoreline Management Master Program (SMP). Initially, in 2001, the City adopted a moratorium on new docks in Blakely Harbor. Subsequently, an all-island moratorium on overwater structures (e.g. piers, docks, recreational floats) and armoring (e.g. bulkheads, revetments, soft-shore) was adopted, and that all-island moratorium was later extended and/or amended four times, expiring on March 1, 2004.

Legal Argument

Traci Shallbetter, a DWT land use attorney arguing on behalf of various private property owners, businesses and the Home Builders Association of Kitsap County, asserted that local governments lacked authority to impose moratoriums on shoreline development during the process of updating or revising their Shoreline Management Programs and related zoning regulations. In essence, the City was trying to use the moratorium authority of the GMA and the Planning Enabling Act as a “backdoor”—to do something that it has no authority to do under the SMA. DWT refuted the City’s argument that by virtue of becoming a part of the GMA’s comprehensive plan and land use polices once adopted under the SMA, Shoreline Master Programs and use regulations were governed by the GMA—in substance or procedure.

Specifically, DWT emphasized the unique history of the Shoreline Management Act as a self-contained statute, proposed by an initiative of the people over 30 years ago, which notably has never authorized a moratorium on shoreline development—even while local plans were initially being developed. DWT argued, as a matter of law, that the City’s moratorium be deemed invalid for several reasons:

• First, the Legislature has unequivocally mandated that regulation of shoreline use and development is done pursuant to the SMA—not the GMA or Planning Enabling Act.
  
  
• Second, it is clear from caselaw, Attorney General Opinions, and the recent 2003 amendments (ESHB 1993) that the City cannot do through the GMA or the Planning Enabling Act what it has no authority to do under the SMA.
  
  
• Third, the events surrounding the actual amendment of the GMA and the Planning Enabling Act in 1992 to add a moratorium power reveal a reasoned decision by the Legislature not to grant a moratorium power under the SMA.

Additionally, DWT argued that even if the Court were to “judicially amend” the SMA to provide a moratorium power, the City’s shoreline moratorium would still be invalid. The City, through its moratorium, had prohibited development that is consistent with the state-approved SMP and development for multiple years, and the SMA mandates, without exception, “a permit shall be granted” for development that is consistent with a State approved SMP. The City’s moratorium—under which no permits have been issued for over two years—conflicts with the general laws of the state.

The Division II Court of Appeals ultimately agreed with DWT—that the SMA provides no authority for moratoriums on shoreline development during the process of adoption or amendment of SMPs and shoreline regulations—despite the presence of a moratorium power under the GMA and the Planning Enabling Act. According to the Court of Appeals:

The moratorium authority derived from RCW 35A.63.220 is limited to planning and zoning in code cities. It does not grant the city authority in this case because ordinances involving shoreline master programs and shoreline management regulations do not fall within the definition of zoning….Similarly, RCW 36.70A.390…is limited to growth management in selected counties and cities; it does not apply to shoreline management. Thus, neither statute grants the authority the City describes and its argument to the contrary fails…The City further argues that [the] Growth Management Act applies to shoreline development, to the exclusion of the SMA or the City’s SMP. Again, we disagree.

Despite heated argument over whether RCW 4.84.370 encompassed a challenge to a moratorium and/or a refusal to accept applications or issue permits, the Court of Appeals awarded DWT’s clients their attorney fees pursuant to RCW 4.84.370. DWT’s attorneys pointed out that RCW 4.84.370 was enacted as part of the regulatory reform legislation, spawned by the Legislature’s dim view of agencies granting themselves more authority or acting as if they had more authority than the Legislature had granted them. The situation at hand was precisely that which RCW 4.84.370 was designed to discourage.

For the published opinion in Biggers v. City of Bainbridge Island, click here.

For more information, please contact:

John E. Keegan, Seattle, (206) 628-7688, JohnKeegan@dwt.com
Dennis D. Reynolds, Seattle, (206) 903-3967, DennisReynolds@dwt.com

This Advisory is a publication of the Real Property Group of Davis Wright Tremaine LLP. Our purpose in publishing this Advisory is to inform our clients and friends of recent developments in real estate, land use and construction law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may be given only in response to inquiries regarding particular situations.

Copyright © 2005, Davis Wright Tremaine LLP.

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