ORD 2003-34 B SUPPORTING CONTINUED MORATORIUM ON SSDP/SSDE/SCUP APPLICATIONS ORDINANCE NO. 2003-34 (Version B)
AN ORDINANCE of the City of Bainbridge Island, Washington, adopting
findings of fact supporting the continuation of the City's moratorium on
applications for certain shoreline substantial development permits, shoreline
substantial development exemptions, and shoreline conditional use permits;
continuing the moratorium until March 1, 2004; reducing the scope of the
moratorium; amending Sections 1 and 2 of Ordinance No. 2001-34, Section 2 of
Ordinance No. 2001-45, Section 2 of Ordinance No. 2002-29, and Sections 2 and
3 of Ordinance No. 2003-13; and declaring an emergency.
WHEREAS, Blakely Harbor is a coastal inlet located along the southeastern shoreline of
Bainbridge Island, containing 3.5 miles of shoreline, 290 acres of navigable water, and 5 docks
or piers; is the last harbor within Central Puget Sound that remains largely undeveloped with
private, commercial, and/or industrial docks or piers; and is a popular anchorage for vessels
because of its undeveloped character, natural beauty, and scenic views; and
WHEREAS, the Bainbridge Island community has long had a commitment to preserving
the waters of Blakely Harbor from the proliferation of dock or pier development; and
WHEREAS, on November 30, 1992, the Bainbridge Island Park and Recreation District
adopted Appendix C of its Comprehensive Plan, in which the limitation of dock development in
Blakely Harbor was encouraged; and
WHEREAS, on January 7, 1999, the City adopted its Harbor Management Plan
(Resolution 99-01), which contains policies supporting the limitation of docks and piers in
Blakely Harbor; and
WHEREAS, the City has prepared a report titled Blakely Harbor Cumulative Impact
Assessment documenting the significant cumulative loss of scenic views, navigable waters, and
adverse cumulative effects to water and environmental quality likely to be caused by the
proliferation of dock and pier development within Blakely Harbor; and
WHEREAS, on August 8, 2001, the City Council passed Ordinance No. 2001-32
imposing a moratorium on the filing of applications for shoreline substantial development for
Ordinance No. 2003-34
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new docks and piers in Blakely Harbor; and
WHEREAS, on August 22, 2001, the City Council passed Ordinance No. 2001-34,
repealing Ordinance No. 2001-32 and imposing a moratorium on the filing of certain
applications for shoreline substantial development permits, shoreline substantial development
exemptions, and shoreline conditional use permits, including applications for docks and piers in
Blakely Harbor; and
WHEREAS, on October 10, 2001, the City Council held a public hearing on the
moratorium and adopted Ordinance No. 2001-45 amending Ordinance No. 2001-34; and
WItEREAS, on August 14, 2002, the City Council held a public hearing on the
moratorium and adopted Ordinance No. 2002-29, continuing the moratorium until March 1,
2003; and
WHEREAS, on February 26, 2003, the City Council held a public hearing on the
moratorium and adopted Ordinance No. 2003-13, continuing the moratorium until September 1,
2003; and
WHEREAS, the City has been working through a deliberate public process to revise and
update the Shoreline Master Program consistent with Chapter 90.58 RCW, but is not able to
complete the Master Program update prior to September 1, 2003; and
WHEREAS, the City established the Shoreline Master Program Update Steering
Committee in January 2002, which reviewed and revised the shoreline goals and policies
between January and June 2002; and
WHEREAS, in June 2002, the Steering Committee forwarded their recommended goal
and policy amendments to the Shoreline Master Program, including recommendations on
limiting dock and pier development within Blakely Harbor, to the Planning Commission; and
WHEREAS, on September 12, 2002, the Planning Commission held a public hearing on
goal and policy amendments to the Shoreline Master Program, including limitations to dock and
pier development within Blakely Harbor; and
WHEREAS, on December 12, 2002, the Planning Commission held a public meeting on
the topics of bulkheads, docks, and piers; and
WHEREAS, on January 16, 2003, the Planning Commission presented their
recommended amendments to the Shoreline Master Program, including policies and regulations
limiting dock and pier development in Blakely Harbor, to the City Council Land Use Committee;
and
WHEREAS, the City Council Land Use Committee has begun updating the
implementing shoreline regulations, but it will take additional time to revise the City's Shoreline
Master Program and obtain necessary approvals from the state Department of Ecology; and
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WHEREAS, the City is considering new shoreline policies and regulations limiting dock
and pier development in Blakely Harbor in order to preserve the unique character, navigable
waters, natural resources, scenic views, and natural beauty of the harbor for the residents of
Bainbridge Island and the State; and
WHEREAS, the City is considering a separate ordinance amending the Shoreline Master
Program relating only to shoreline policies and regulations for docks and piers in Blakely
Harbor, which the City expects to be adopted in approximately September 2003, and which will
then have to be approved by the Department of Ecology; and
WHEREAS, RCW 35A.63.220 and RCW 36.70A.390 authorize the City to adopt a
moratorium on development of up to one year, and to continue the moratorium for additional six-
month periods after conducting a public heating on the continuation of the moratorium and
adopting findings of fact supporting the continuation; and
WHEREAS, on August 27, 2003, the City Council held a hearing on the issue of the
continuation of the moratorium, at which time members of the public had the opportunity to
present testimony and other evidence in favor of or against the continuation of the moratorium;
and
WHEREAS, the City Council has determined that the continuation of the moratorium,
as adopted in Ordinance Nos. 2001-34, 2001-45, 2002-29, 2003-13 and this Ordinance, is
necessary for the protection of public health, safety, property, or peace, including protection of
the unique character, scenic views, natural beauty, natural resources, and navigable waters in
Blakely Harbor, and to protect against other cumulative adverse impacts to Blakely Harbor, and
desires to enter the findings set forth in this Ordinance to support the continuation of the
moratorium as required by RCW 35A.63.220 and RCW 36.70A.390; now, therefore
THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, DO ORDAIN
AS FOLLOWS:
Section 1. Establishment of Findings. Based on the public testimony and other
evidence submitted at the public heatings held on October 10, 2001, August 14, 2002, February
26, 2003, and August 27, 2003, the City Council enters the following Findings of Fact to support
the moratorium described in Section 1 of Ordinance No. 2001-34, as amended by Section 2 of
Ordinance No. 2001-45, Section 2 of Ordinance No. 2003-13, and Section 2 of this Ordinance
("Moratorium"):
1. On October 10', 2001, the City Council held a public hearing on the
Moratorium on the filing of certain applications for shoreline substantial
development permits, shoreline substantial development exemptions, and
shoreline conditional use permits, and on August 14, 2002, February 26, 2003,
and August 27, 2003, the City Council held public heatings on the continuation of
the Moratorium.
Ordinance No. 2003-34
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2. At the hearings, members of the public had the opportunity to
present testimony and other evidence regarding the imposition of the Moratorium.
The City Council considered testimony and reports by staff regarding the
Moratorium submitted at the hearings, as well as all evidence presented by the
public.
3. Blakely Harbor is a coastal inlet located along the southeastern
shoreline of Bainbridge Island, containing 3.5 miles of shoreline, 290 acres of
navigable water, and 5 docks or piers. The Harbor is the last harbor within
Central Puget Sound that remains largely undeveloped with private, commercial,
and/or industrial docks or piers, and is a popular anchorage for vessels because of
its undeveloped character, natural beauty, and scenic views.
4. The Bainbridge Island community has long had a commitment to
preserving the waters of Blakely Harbor from the proliferation of dock or pier
development. On November 30, 1992, the Bainbridge Island Park and Recreation
District adopted Appendix C of its Comprehensive Plan, in which the limitation
of dock development in Blakely Harbor was encouraged. On January 7, 1999, the
City of Bainbridge Island adopted the Harbor Management Plan (Resolution 99-
01), which contains policies supporting the limitation of docks and piers in
Blakely Harbor. The City has prepared a document titled Blakely Harbor
Cumulative Impact Assessment documenting the significant cumulative loss of
scenic views, navigable waters, and adverse cumulative effects to water and
environmental quality likely to be caused by the proliferation of dock and pier
development within Blakely Harbor.
5. On August 8, 2001, the City Council passed Ordinance No. 2001-
32 imposing a moratorium on the filing of applications for shoreline substantial
development for new docks and piers in Blakely Harbor. On August 22, 2001,
the City Council passed Ordinance No. 2001-34, repealing Ordinance 2001-32
and imposing a moratorium on the filing of certain applications for shoreline
substantial development permits, shoreline substantial development exemptions,
and shoreline conditional use permits. On October 10, 2001, the Council held a
public heating on the Moratorium and passed Ordinance No. 2001-45, which
amended Ordinance No. 2001-34 and adopted findings of fact supporting the
Moratorium, as amended. The amendment to the Moratorium clarified and
simplified the type of shoreline development that is subject to the Moratorium.
The amendments also restricted the Moratorium to the structures that have the
greatest potential to impact shoreline habitat. On August 14, 2002, the Council
held a public hearing on the Moratorium and passed Ordinance No. 2002-29,
which amended Ordinance 2001-34 and adopted findings of fact supporting
continuation of the Moratorium, and continuing the Moratorium until March 1,
2003. On February 26, 2003, the Council held a public hearing on the
Moratorium and passed Ordinance No. 2003-13, which adopted findings of fact
supporting continuation of the Moratorium, and continued the Moratorium until
September 1, 2003.
Ordinance No. 2003-34
Revised 08/25/03 -4-
6. Since passing Ordinance No. 2001-34, the City has been working
through a deliberate public process to revise and update the Shoreline Master
Program consistent with Chapter 90.58 RCW, especially RCW 90.58.130.
However, the City will not be able to complete the Shoreline Master Program
update by September 1, 2003.
7. In January 2002, the City established the Shoreline Master
Program Update Steering Committee. Between January and June 2002, the
Steering Committee reviewed and revised the shoreline goals and policies in the
Shoreline Master Program. In June 2002, the Steering Committee forwarded their
recommended goal and policy amendments to the Shoreline Master Program,
including recommendations on limiting dock and pier development within
Blakely Harbor, to the Planning Commission.
8. In June 2002, the Planning Commission began to review and revise
the shoreline goals, policies, and regulations. On September 12, 2002, the
Planning Commission held a public hearing on goal and policy amendments to the
Shoreline Master Program, including limitations to dock and pier development
within Blakely Harbor, at which time members of the public had the opportunity
to present testimony and other evidence in favor of or against the proposed
amendments. Between June 2002 and January 2003, the Planning Commission
also conducted several detailed workshops. On December 12, 2002, the Planning
Commission held a public meeting on the topics of bulkheads, docks, and piers, at
which time members of the public had the opportunity to present testimony and
other evidence related to those topics.
9. On January 16, 2003, the Planning Commission presented their
recommended amendments to the Shoreline Master Program, including policies
and regulations limiting dock and pier development in Blakely Harbor, to the City
Council Land Use Committee.
10. The City Council Land Use Committee has begun updating the
implementing shoreline regulations. Carrently, the City expects final adoption of
the Shoreline Master Program and the critical areas ordinance by the Council by
approximately December 2004, with final Ecology approval of the Shoreline
Master Program expected in 2005.
11. As part of the Master Program and shoreline regulations
amendments, the City is considering new policies and regulations limiting dock
and pier development in Blakely Harbor in order to preserve the unique character,
navigable waters, natural resources, and scenic beauty of the harbor for the
residents of Bainbridge Island and the State. The City is considering a separate
ordinance relating only to shoreline policies and regulations regarding docks and
piers in Blakely Harbor. The City expects this separate ordinance to be passed by
the City Council in approximately September 2003. The ordinance would then
Ordinance No. 2003-34
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have to be approved by the Department of Ecology.
12. As outlined in the previous paragraphs, the scenic views, natural
beauty, navigable waters and other natural resources in Blakely Harbor could be
adversely impacted, if applications for docks and piers in Blakely Harbor are filed
and processed prior to the time that the new Shoreline Master Program policies
and implementing shoreline regulations relating to docks and piers in Blakely
Harbor are adopted.
13. RCW 35A.63.220 and RCW 36.70A.390 authorize the City to
adopt a moratorium on development, and to continue the moratorium for
additional periods of up to six months after conducting a public hearing on the
continuation of the moratorium and adopting findings of fact supporting the
continuation.
14. In Matson v. Clark County Bd. of Commissioners, 79 Wn.App. 641
(1995), the Court held that RCW 35.63.200, which is substantially similar to
RCW 35A.63.220, authorizes the enactment of a development moratorium or
interim zoning control. In Tahoe-Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency, 122 S.Ct. 1465 (2002), the United States Supreme
Court held that a development moratorium is not a per se taking under the federal
Constitution's takings clause. In so holding, the Court recognized that moratoria
are used widely among land use planners to preserve the status quo while
formulating a permanent development strategy, further the regulatory agency's
interest in informed decision-making, and protect the interest of all landowners
against immediate construction that might be inconsistent with the provisions of a
plan that is ultimately adopted.
15. In Biggers, et al. v. City of Bainbridge Island, Kitsap County
Superior Court Cause No. 01-2-03282-0, the Superior Court entered an order
stating: "Subject to any stay authorized by the court rules, the City shall accept
and process applications for single family protective bulkheads and other
shoreline structures that the City has heretofore refused to accept, process, or
issue because of the City's moratorium on such applications... ". The City
appealed this order to the Court of Appeals, Division II, and filed a Notice of Stay
pursuant to court rules and statute. No objection to the Notice of Stay has been
filed. Thus, the Superior Court's order is superseded and stayed pending a
decision by the Court of Appeals in the matter. The City's appeal may be
considered moot if the Moratorium is not extended. The extension of the
Moratorium maintains the status quo.
16. An extension of the Moratorium is necessary while the City
considers the amendment to the Shoreline Master Program and implementing
regulations relating to docks and piers in Blakely Harbor, and obtains necessary
approvals of the amendments. The Moratorium provides time for the City to
obtain the benefit of comments from interested citizens. The City's land use and
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planning process, as well as the protection of the unique character, scenic views,
natural beauty, navigable waters and natural resources in Blakely Harbor, will
suffer significant harm if the Moratorium is not in place continuously until the
City completes the process to amend the Shoreline Master Program and
implementing regulations relating to docks and piers in Blakely Harbor.
17. The amendment to the Moratorium, stated in Section 2 of this
Ordinance, will limit the type and location of shoreline development subject to the
Moratorium to specific dock and pier structures in Blakely Harbor, an area that is
of particular significance based on the Harbor's undeveloped character, pristine
natural beauty, scenic views, and other natural resources.
18. The City Council has determined that the extension and continuous
operation of the Moratorium is necessary for the protection of the public health,
safety, property, or peace, including the protection of the unique character, scenic
views, natural beauty, navigable waters and natural resources in Blakely Harbor,
and to protect against other cumulative adverse impacts to Blakely Harbor.
Section 2. Section 1 of Ordinance No. 2001-34, Section 2 of Ordinance No. 2001-45,
and Section 2 of Ordinance No. 2003-13 are amended to read as follows:
Imposition of Moratorium. A moratorium is imposed on the filing of new
applications for shoreline substantial development permits, shoreline substantial
development exemptions and shoreline conditional use permits for new piers and
docks ovc~/:=tzr ~'~ ....... ~_:~ a^~, .... a flc.~t:)
located within Blakel¥ Harbor between Restoration Point and the most eastern
point along the north shore of Blakely Harbor (sometimes referred to as "Pigott
Point" or "Jasmine Point"). This moratorium shall not apply to shoreline permits
and exemptions for (1) normal maintenance and repair (including replacement)
when consistent with WAC 173-27-040(2)(b); (2) emergency construction when
consistent with WAC 173-27-040(2)(d); (3) repair or replacement of a legally
existing non-conforming structure that was damaged or destroyed when consistent
with BIMC 16.12.390(2)(c); (4) restoration proiects when consistent with WAC
173-27-040(2)(o) or WAC 173-27-040(2)(p); and (5) remediation proiects when
consistent with WAC 173-27-040(3).
~t.^~:~. :.,..;~.4:~;^~ The terms in this
section shall have the definitions stated in BIMC 16.12.030.
Section 3. Section 2 of Ordinance No, 2001-34, Section 2 of Ordinance No, 2002-29,
and Section 3 of Ordinance No. 2003-13 are amended to read as follows:
Term of Moratorium, The moratorium imposed in this ordinance shall take effect
on the effective date of this ordinance fi;':
Ordinance No. 2003-34
Revised 08/25/03 -7-
,,,,~.~:~n,: .... rsqu:.r:~ ~-" ~ .... and shall continue in effect until and including
March 1, 2004 Sz~t:m~zr !, 2002, unless repealed, extended or modified by the
City Council after subsequent public hearing and entry of appropriate findings of
fact pursuant to RCW 35A.63.220.
Section 4. Severability. If any section, sentence, clause or phrase of this ordinance
shall be held to be invalid or unconstitutional by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity or constitutionality of any other
section, sentence, clause or phrase of this ordinance.
Ordinance No. 2003-34
Revised 08/25/03 -8-
Section 5. Effective Date. This ordinance, passed by a majority plus one of the whole
membership of the City Council as a public emergency ordinance necessary for the protection of
the public health, public safety, public property, or public peace, shall be effective immediately
upon its passage
PASSED by the City Council this 27th day of August, 2003.
APPROVED by the Mayor this 28th day of August, 2003.
DARLENE KOPTDC~WNOY, Mayo(~
ATTEST/AUTHENTICATE:
~USAN P. KASPER, City ~lerk
APPROVED AS TO FORM:
ROD P. KASEGUMA, City Attorney
FILED WITH THE CITY CLERK: August 26, 2003
PASSED BY THE CITY COUNCIL: August 27, 2003
PUBLISHED: September 3, 2003
EFFECTIVE DATE: IMMEDIATELY
ORDINANCE NO. 2003-34
Ordinance No. 2003-34
Revised 08/25/03 -9-