Academic journal article Washington Law Review

The Legality of Washington Shoreline Development Moratoria in the Wake of Biggers V. City of Bainbridge Island

Academic journal article Washington Law Review

The Legality of Washington Shoreline Development Moratoria in the Wake of Biggers V. City of Bainbridge Island

Article excerpt

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 oreas and home to an impressive number of species,1 also provides a beautiful place to live for a large and rapidly increasing human population.2 In addition to being precious to local communities3 and one of the largest estuaries in the United States, Puget Sound is an ecosystem of global significance.4 Today, it faces potentially devastating challenges.5 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."6 Local governments' policies and regulations play a crucial role in preventing further habitat loss,7 and measures they take to protect this public interest can clash with asserted private property rights.8 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.10

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;11 four justices agreed with the City that the authority exists under Washington law and that the City's temporary moratorium was reasonable;12 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.13

The court's fragmentation makes it difficult to ascertain the holding and precedential value of the decision. …

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