ORD 2015-06 ADOPTING A SIX-MONTH MORATORIUM ON AQUACULTURE ACTIVITIESORDINANCE NO. 2015-06
AN ORDINANCE of the City of Bainbridge Island, Washington, adopting a
six -month moratorium on the acceptance, processing and /or approval of new
applications for commercial aquaculture activities on or within the City of
Bainbridge Island shorelines; providing for severability; declaring an
emergency and establishing an immediate effective date.
WHEREAS, the City initiated its Shoreline Master Program ( "SMP ") Update process in
2012 and on June 7, 2013 submitted it to the Department of Ecology ( "DOE ") for approval; and
WHEREAS, the June 7, 2013 SMP prohibited aquaculture in all aquatic designations and
in all upland designations except Shoreline Residential and Urban wherein aquaculture was
permitted as a conditional use; and
WHEREAS, DOE returned the City's June 7, 2013 SMP, and required the City to allow
aquaculture as a conditional use in all upland designations except Island Conservancy and in all
aquatic designations; and
WHEREAS, DOE indicated an appeal of the required changes would likely be very
lengthy; and
WHEREAS, on July 14, 2014, the City adopted the SMP containing the changes to
aquaculture required by DOE; and
WHEREAS, the DOE issued a Notice of Final Action effective July 30, 2014 approving
the City's SMP; and
WHEREAS, on October 14, 2014 the Bainbridge Alliance for Puget Sound, Association
of Bainbridge Communities, and Coalition to Protect Puget Sound Habitat (the "Alliance ") filed
a Petition for Review with the Central Puget Sound Growth Management Hearings Board (the
"Board ") challenging the SMP's aquaculture regulations; and
WHEREAS, on November 17, 2014, Pacific Coast Shellfish Growers Association
( "PCSGA ") was granted its motion to intervene and is challenging the SMP's aquaculture
regulations; and
WHEREAS, on January 9, 2015, the Alliance, DOE, and the City joined a motion to
extend the hearing schedule to allow the parties an opportunity to discuss a possible settlement of
the appeals by bringing forward for Council's consideration a limited SMP amendment
containing regulations agreed to by DOE, the City, and the Alliance; and
WHEREAS, PCSGA did not join, but objected to, the motion to extend time; and
WHEREAS, the City desires to preserve the status quo and prevent the processing of new
applications for commercial aquaculture substantial shoreline development permits (SSDPs) and
conditional use permits (CUPs) until such time as the parties have proposed and the City has
adopted a limited amendment to the SMP's aquaculture regulations; and
WHEREAS, in Biggers v. City of Bainbridge Island, 162 Wn. 2d 683 (2007), Justice
Chambers, with whom four additional justices agreed, stated, "While no positive grant of
authority exists under the SMA to impose a moratorium, such an explicit grant is not required in
the face of Washington Constitution article XI, section 11's broad delegation of police power to
the local governments. Cf. Weden v. San Juan County, 135 Wn.2d 678, 690 -92, 958 P.2d 273
(1998). ... Municipalities possess independent authority to regulate shorelines so long as the
regulation does not conflict with the SMA. I agree with Justice Fairhurst that municipalities can
place moratoria on shoreline substantial development permits without conflict with the SMA ";
and
WHEREAS, the City possesses jurisdiction over the City's shorelines insofar as such
local regulations do not conflict with the Shoreline Management Act; and
WHEREAS, the City Council shall hold a public hearing within sixty days of the
adoption of this Ordinance;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BAINBRIDGE
ISLAND, WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Findings of Fact. The recitals set forth above are hereby adopted as the City
Council's initial findings of fact in support of the moratorium established by this Ordinance. The
City Council may, in its discretion, adopt additional findings after the public hearing referenced
in Section 4 below.
Section 2. Moratorium Imposed. As authorized by the police powers delegated by
Washington Constitution article XI, section 11, a moratorium is hereby enacted on the
acceptance, processing, or approval of applications for substantial shoreline development permits
( "SSDP ") and shoreline conditional use permits ( "CUP ") for all commercial aquaculture activities.
For purposes of this moratorium, "commercial aquaculture" shall mean the commercial cultivation
and harvesting of fish, shellfish, or other aquatic animals or plants. This moratorium does not apply
to aquaculture activities not requiring a SSDP or CUP.
Section 3. Effective Duration of Moratorium. The moratorium set forth in this
Ordinance shall be in effect for a period of six (6) months from the effective date of this
Ordinance and shall automatically expire at the conclusion of that six -month period unless
sooner repealed.
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Section 4. Public Hearing. The City Council will hold a public hearing at a City
Council business meeting within 60 days from adoption in order to take public testimony and to
consider adopting further findings of fact.
Section 5. Severability. Should any section, paragraph, sentence, clause or phrase of
this Ordinance, or its application to any person or circumstance, be declared unconstitutional or
otherwise invalid for any reason, or should any portion of this Ordinance be pre - empted by state
or federal law or regulation, such decision or pre - emption shall not affect the validity of the
remaining portions of this Ordinance or its application to other persons or circumstances.
Section 6. Effective Date. This Ordinance, as a public emergency ordinance necessary
for the protection of the public health, public safety, public property, and public peace, shall take
effect and be in full force immediately upon its adoption. Pursuant to Matson v. Clark County
Board of Commissioners, 79 Wn. App. 641, 904 P.2d 317 (1995), non - exhaustive underlying
facts necessary to support this emergency declaration are included in the "WHEREAS" clauses,
above, all of which are adopted by reference as findings of fact as if fully set forth herein.
PASSED BY THE CITY COUNCIL this 20th day of January, 2015.
APPROVED BY THE MAYOR this 20th day of January, 2015.
Anne S. Blair, Mayor
ATTEST /AUTHENTICATE:
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Rosalind D. Lassoff, C C, City Clerk
FILED WITH THE CITY CLERK: January 20, 2015
PASSED BY THE CITY COUNCIL: January 20, 2015
PUBLISHED: January 30, 2015
EFFECTIVE DATE: January 20, 2015
ORDINANCE NUMBER: 2015 -06