ORD 2015-19 ADOPTING A SIX-MONTH MORATORIUM ON AQUACULTURE ACTIVITIESORDINANCE NO. 2015-19
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; and establishing an
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 the
aquaculture regulations 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, at its Business Meeting on December 9, 2014, the City Council directed staff
to prepare a limited amendment to the SMP that would more closely reflect those regulations
contained in the June 13, 2013 SMP submitted to DOE; and
WHEREAS, on January 20, 2015 the City adopted Ordinance 2015 -16 imposing a six (6)
month moratorium 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. Ordinance 2015 -06 expires on July 19, 2015; and
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WHEREAS, since the adoption of the moratorium on January 20, 2015, the City, the
Alliance and DOE have been meeting regularly for the specific purpose of discussing proposed
revisions to the aquaculture regulations within the SMP that would be acceptable to both the
Alliance and to DOE; and
WHEREAS, upon the City's determination that the parties have completed discussions,
proposed regulations will be drafted and prepared, and the public process for the adoption of a
limited amendment to the SMP will commence; and
WHEREAS, on January 13, 2015 the Board granted an extension and amended the hearing
schedule to allow for settlement discussions; the Board granted a second extension on April 15,
2015; on June 15, 2015, the Board granted a third extension to allow additional time for settlement
discussions and amended the hearing schedule such that the Hearing on the Merits is scheduled
for November 19, 2015; 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 City has adopted the 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 I I'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. Findin s 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,
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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.
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 s. Sevcrahility. 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 will be effective five (5) days after publication.
PASSED BY THE CITY COUNCIL this 7th day of July, 2015,
APPROVED BY THE MAYOR this 7th day of July, 2015.
Anne S. Blair, Mayor
ATTEST /AUTHENTICATE:
1604 . L-b . la .w i
Rosalind D. Lassoff, CM C, City Clerk
FILED WITH THE CITY CLERK: July 1, 2015
PASSED BY THE CITY COUNCIL: July 7, 2015
PUBLISHED: July 10, 2015
EFFECTIVE DATE: July 15, 2015
ORDINANCE NUMBER: 2015 -19